Exhibit 10.1
EXECUTION COPY
$325,000,000
JUNIOR LIEN TERM LOAN AGREEMENT
(amending and restating in its entirety the Bridge Loan Agreement
dated as of February 22, 2007)
Dated as of March 15, 2007
Among
BUILDING MATERIALS CORPORATION OF AMERICA,
BMCA ACQUISITION INC.
and
BMCA ACQUISITION SUB INC.
as Borrowers
and
THE LENDERS NAMED HEREIN
as Lenders
and
DEUTSCHE BANK AG NEW YORK BRANCH
as Collateral Agent and Administrative Agent
and
DEUTSCHE BANK SECURITIES, INC.,
BEAR XXXXXXX & CO. INC.
and
X.X. XXXXXX SECURITIES, INC.
as Joint Lead Arrangers and Joint Book Managers
and
X.X. XXXXXX SECURITIES, INC.
as Documentation Agent
and
BEAR XXXXXXX & CO. INC.
as Syndication 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.........................................25
SECTION 1.03. Accounting Terms...................................................................................25
SECTION 1.04. Currency Equivalents Generally.....................................................................26
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Loans..........................................................................................26
SECTION 2.02. Repayment of Loans.................................................................................26
SECTION 2.03. Optional Prepayments...............................................................................26
SECTION 2.04. Mandatory Offer to Prepay..........................................................................26
SECTION 2.05. Interest...........................................................................................27
SECTION 2.06. Agents' Fees.......................................................................................28
SECTION 2.07. Conversion of Loans................................................................................28
SECTION 2.08. Increased Costs, Etc...............................................................................29
SECTION 2.09. Payments and Computations..........................................................................31
SECTION 2.10. Taxes..............................................................................................33
SECTION 2.11. Sharing of Payments, Etc...........................................................................36
SECTION 2.12. Use of Proceeds....................................................................................37
SECTION 2.13. Evidence of Debt...................................................................................37
SECTION 2.14. Relationship Among the Borrowers...................................................................37
ARTICLE III
CONDITIONS OF EFFECTIVENESS
SECTION 3.01. Conditions Precedent...............................................................................38
SECTION 3.02. Determinations Under Section 3.01..................................................................41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers....................................................41
Junior Lien Term Loan Agreement
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants..............................................................................49
SECTION 5.02. Negative Covenants.................................................................................58
SECTION 5.03. Reporting Requirements.............................................................................70
SECTION 5.04. Financial Covenant.................................................................................73
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................74
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action...........................................................................77
SECTION 7.02. Agents' Reliance, Etc..............................................................................78
SECTION 7.03. DBNY and Affiliates................................................................................78
SECTION 7.04. Lender Credit Decision.............................................................................78
SECTION 7.05. Indemnification....................................................................................79
SECTION 7.06. Successor Agents...................................................................................79
SECTION 7.07. Appointment of Supplemental Collateral Agents......................................................80
SECTION 7.08. The Joint Lead Arrangers, the Syndication Agent and the Documentation Agent........................81
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................................................................81
SECTION 8.02. Notices, Etc.......................................................................................82
SECTION 8.03. No Waiver; Remedies................................................................................83
SECTION 8.04. Costs and Expenses.................................................................................83
SECTION 8.05. Right of Set-off...................................................................................85
SECTION 8.06. Binding Effect.....................................................................................86
SECTION 8.07. Assignments and Participations.....................................................................86
SECTION 8.08. Execution in Counterparts; Integration.............................................................89
SECTION 8.09. Confidentiality....................................................................................90
SECTION 8.10. Release or Subordination of Collateral/Release of Guarantor........................................90
SECTION 8.11. Jurisdiction, Etc..................................................................................91
SECTION 8.12. Governing Law......................................................................................91
SECTION 8.13. Waiver of Jury Trial...............................................................................91
SECTION 8.14. Agreement to Comply With Court Order...............................................................91
SECTION 8.15. Patriot Act Notice.................................................................................92
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SCHEDULES
Schedule I - Loan Amounts and Applicable Lending Offices
Schedule II - Guarantors
Schedule 1.01 - Existing Letters of Credit
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(b)(iii)(D) - Elk Debt
Schedule 5.02(e) - Excluded Assets
Schedule 8.02 - Addresses
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Resignation and Assignment
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Solvency Certificate
Exhibit E - Form of Mortgage Amendment
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 Amended and Restated Security Agreement
Exhibit J - Form of Ratification
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JUNIOR LIEN TERM LOAN AGREEMENT
(AMENDING AND RESTATING IN ITS ENTIRETY THE BRIDGE LOAN AGREEMENT DATED AS OF
FEBRUARY 22, 2007)
THIS JUNIOR LIEN TERM LOAN AGREEMENT (amending and restating
in its entirety the Bridge Loan Agreement dated as of February 22, 2007) (this
"AGREEMENT") dated as of March 15, 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 Lenders, DEUTSCHE BANK AG NEW YORK BRANCH ("DBNY"), as collateral
agent for the Secured Parties (as hereinafter defined and DBNY in such capacity,
together with any successor collateral agent appointed pursuant to Article VII,
the "COLLATERAL AGENT") and as administrative agent for the Lenders (as
hereinafter defined and DBNY in such capacity, together with any successor
administrative agent appointed pursuant to Article VII, the "ADMINISTRATIVE
AGENT"), DEUTSCHE BANK SECURITIES INC., BEAR XXXXXXX & CO. INC. and X.X. XXXXXX
SECURITIES INC., as joint lead arrangers (in such capacities, collectively, the
"JOINT LEAD ARRANGERS") and joint book managers, BEAR XXXXXXX & CO. INC., as
syndication agent (the "SYNDICATION AGENT") and X.X. XXXXXX SECURITIES INC., as
documentation agent (the "DOCUMENTATION AGENT", and together with the
Administrative Agent, the Collateral Agent, the Joint Lead Arrangers and the
Syndication Agent, collectively, the "AGENTS"), AMENDS AND RESTATES IN FULL the
Existing Bridge Loan Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrowers have entered into (a) 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, (b) a $975,000,000 Term Loan Agreement (such Term
Loan Agreement, as amended, restated, supplemented or otherwise modified,
replaced or refinanced, the "TERM LOAN FACILITY") and (c) a $325,000,000 Bridge
Loan Agreement (the "EXISTING BRIDGE LOAN AGREEMENT") with Deutsche Bank AG
Cayman Islands Branch, as collateral agent and administrative agent (in such
capacities, the "EXISTING AGENT"), and the other financial institutions party
thereto. All the proceeds of the Existing Bridge Loan Agreement and a
substantial portion of the proceeds of the Revolving Credit Facility and the
Term Loan Facility were used and will continue to 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 Agreement, this Agreement, the Tender Offer, such
refinancings, the Merger and the acquisition of the Option Stock (as hereinafter
defined), the "TRANSACTION").
(2) BMCA currently has certain outstanding Debt (as
hereinafter defined), including (i) Debt under the Existing Bridge Loan
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").
(3) The Borrowers have requested to amend and restate the
Existing Bridge Loan Agreement in its entirety as provided herein.
(4) The Existing Agent and each of the Lenders party to the
Existing Bridge Loan Agreement have agreed to the amendment and restatement of
the Existing Bridge Loan Agreement as provided herein by their signature hereto.
(5) Deutsche Bank AG New York Branch has agreed to replace the
Existing Agent as administrative agent and collateral agent for the Lenders.
(6) This Agreement, on the terms and conditions set forth
herein, amends and restates the Existing Bridge Loan Agreement in its entirety
on the Effective Date and does not constitute a novation of the obligations and
liabilities existing under the Existing Bridge Loan Agreement or evidence
payment of all or any such obligations and liabilities.
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
2
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 4.75% in the case of Base Rate
Advances and 5.75% 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 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 Loan 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.
3
"BORROWERS' ACCOUNT" means the account of BMCA maintained by
BMCA with Citibank N.A. at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Account No. NY DDA 00000000 Building Material Corporation
of America, or such other account as BMCA shall specify in writing to
the Administrative Agent.
"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 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.
"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 Existing Indentures or
the Term Loan Facility (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
Xxxxx'x, (c) commercial paper of an issuer rated at least "A-1" by S&P
or "P-1" by Xxxxx'x 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 Xxxxx'x; provided, however, that the maturities of
all obligations of the type specified in clauses (a), (b) and (c) above
shall not exceed 360 days.
4
"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.
"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
5
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" means February 22, 2007, the closing date under
the Existing Bridge Loan Agreement.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"COLLATERAL AGENCY AGREEMENT" means the Collateral Agency
Agreement dated as of February 22, 2007 among DBNY, as administrative
agent under the Term Loan Facility, each trustee under the Existing
Indentures, and the Collateral Agreement Agent, as the same may be
amended, restated, supplemented, replaced or otherwise modified.
"COLLATERAL AGENT" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL AGREEMENT AGENT" means DBTCA, in its capacity as
collateral agent under the Collateral Agency Agreement, and any
successor thereof in such capacity.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages, the Mortgage Amendments, each of the collateral documents,
instruments and agreements delivered pursuant to Section 5.01(j) or
(k), and each other agreement that creates or purports to create a Lien
in favor of the Collateral Agent for the benefit of the Secured
Parties, as amended, restated, supplemented, replaced or otherwise
modified.
"COMPANY STOCK" has the meaning specified in the preliminary
statements to this Agreement.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender on a confidential basis, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by such
Agent or any Lender of its obligations hereunder or that is or becomes
available to such Agent or such Lender from a source other than the
Loan Parties that is not, to the best of such Agent's or such Lender's
knowledge, acting in violation of a confidentiality agreement with a
Loan Party.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
6
"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 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 Loans of one Type into Loans of other Types pursuant to
Section 2.07 or 2.08.
7
"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" has the meaning specified in the recital of parties to
this Agreement.
"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 (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 Scheduled
Maturity 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.
8
"DEFAULT INTEREST" has the meaning set forth in Section
2.05(b).
"DISCLOSED LITIGATION" has the meaning specified in Section
4.01(f).
"DJ ACTION" means (a) the adversary proceeding filed by G-I
Holdings in the United States Bankruptcy Court for the District of New
Jersey on February 27, 2001 against the Creditors' Committee in the G-I
Holdings bankruptcy proceedings, consisting of an action seeking
declaratory judgment that BMCA has no successor liability for asbestos
claims against G-I Holdings and that BMCA is not the alter ego of G-I
Holdings, and (b) the subsequent litigation associated with such
action.
"DOCUMENTATION AGENT" has the meaning specified in the recital
of parties to this Agreement, and collectively includes such other
entities as hereafter 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.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"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
9
$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 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 or delayed); 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 PRIVATE NOTES" means the 4.69% Senior Notes due 2007, the
6.28% Senior Notes due 2014, the 6.99% Senior Notes, Series A, due 2009
and the 7.49% Senior Notes, Series B, due 2012 issued by Elk in private
placement offerings.
"ENVIRONMENTAL ACTION" means any action, suit, written demand,
demand letter, written claim, notice of non-compliance or violation,
written notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating to any
Environmental Laws or Environmental Permits or arising from alleged
injury or threat to human health, safety or the environment, including
(a) by any governmental or regulatory authority for enforcement,
cleanup, removal, response, remedial or other actions or damages and
(b) by any governmental or regulatory authority or third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"ENVIRONMENTAL LAW" means any applicable international,
Federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction, decree or judicial
or enforceable administrative agency interpretation, policy or guidance
relating to pollution or protection of the environment, human health,
safety or natural resources, including those relating to the use,
handling, transportation, treatment, manufacture, generation, storage,
disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, any and
all shares, interests (including preferred interests), warrants,
rights, options or other interests, participations or other equivalents
of or interests in (however designated) equity of such Person,
including common or preferred stock, whether now outstanding or issued
after the date hereof, but excluding any debt securities convertible
into or exchangeable for such equity.
10
"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
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of any Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR 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
Xxxxx Market Screen (or any successor page) for Dollar deposits with
maturities comparable to the applicable Interest Period commencing two
Business Days thereafter as of 10:00 A.M. (New York time) on the date
which is two Business Days prior to the commencement of the respective
Interest Period or (b) if such rate does not appear on page 3750 of the
Dow Xxxxx Market Screen (or any successor page) the offered quotations
to first-class banks in the New York interbank Eurodollar market by the
11
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).
"EURODOLLAR RATE ADVANCE" means a Loan that bears interest as
provided in Section 2.06(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all respective Eurodollar Rate Advances 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 Loans 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 AGENT" has the meaning specified in the preliminary
statements to this Agreement.
"EXISTING BRIDGE LOAN AGREEMENT" has the meaning specified in
the preliminary statements to this Agreement.
"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.
12
"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 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.
"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.
"FUTURE G-I LETTERS OF CREDIT" means the letters of credit to
be issued after the Effective 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 Effective
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,
13
instrumentality, commission, board, bureau or similar body, whether
Federal, state, provincial, territorial, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"GUARANTORS" means BMCA and the Subsidiaries of BMCA listed on
Schedule II hereto and each other Subsidiary of BMCA that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j);
provided, however, that neither Elk nor any of its Subsidiaries shall
be required to be a Guarantor at any time prior to the consummation of
the Merger; provided, further, that in any event any Subsidiary which
is a guarantor with respect to the Existing Indentures shall be
required to be a Guarantor hereunder.
"GUARANTY" means the guaranty delivered pursuant to the
Existing Bridge Loan Agreement, as such guaranty may be amended,
supplemented or otherwise modified from time to time.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INITIAL G-I HOLDINGS LETTERS OF CREDIT" means the letters of
credit for the benefit of G-I Holdings outstanding under the Revolving
Credit Facility on the Effective Date, 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).
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the
Intellectual Property Security Agreement, dated as of the date hereof,
by and among BMCA, each of the other Grantors party thereto and the
14
Collateral Agent, as amended, supplemented or otherwise modified from
time to time.
"INTERCREDITOR AGREEMENTS" means (i) the General Intercreditor
Agreement dated as of February 22, 2007 between the Collateral Agent
(as successor to DBCA) and DBTCA, as Collateral Agreement Agent, and
(ii) the Revolver Intercreditor Agreement, dated as of February 22,
2007 among the Collateral Agent (as successor to the Existing Agent),
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 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, the
period commencing on the Closing Date 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
the Interest Period for the Loans made on the Closing Date is three
months and the duration of each other 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 the maturity date of the
Loans;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances of the same duration shall be made ratably
among the Lenders;
(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.
15
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVENTORY" has the meaning specified in the Security
Agreement.
"INVESTMENt" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including any acquisition by way of a merger or
consolidation (or similar transaction) and any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (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, collectively, the banks, financial
institutions and the institutional lenders listed on the signature
pages as "Lenders," and each Person that shall become a Lender
hereunder pursuant to Section 8.07 for so long as such 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 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" means with respect to any Lender, the portion of the
loans made to the Borrowers pursuant to Section 2.01 that is owed to
such Lender.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes (if
any), (iii) the Guaranty, (iv) the Ratification, (v) the Collateral
Documents, (vi) the Resignation and Assignment and (vii) the
Intercreditor Agreements, in each case as amended, supplemented,
replaced or otherwise modified from time to time.
"LOAN FACILITY" means the Loans and the provisions herein
related to the Loans.
16
"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.
"XXXXX'X" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means each mortgage delivered pursuant to the
Existing Bridge Loan Agreement and each other deed of trust, trust deed
or mortgage delivered pursuant to Section 5.01(j) or 5.02(k)(vi), in
each case, as amended.
"MORTGAGE AMENDMENT" has the meaning specified in Section
3.01(a)(iv).
"MORTGAGE POLICY" has the meaning specified in the Existing
Bridge Loan Agreement.
"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
17
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 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.
18
"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 this
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 Loan owed to such Lender,
as amended.
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including
any liability of such Person on any claim, whether or not the right of
any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected
by any proceeding referred to in Section 6.01(f). Without limiting the
generality of the foregoing, the Obligations of any Loan Party under
the Loan Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by such Loan Party under any Loan
Document and (b) the obligation of such Loan Party to reimburse any
amount in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OFF BALANCE SHEET OBLIGATION" means, with respect to any
Person, any Obligation of such Person under a synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing classified as an operating lease in
accordance with GAAP, if, and only to the extent that, such Obligations
would give rise to a claim against such Person in a proceeding referred
to in Section 6.01(f) (it being understood that this definition of "Off
Balance Sheet Obligation" shall not include operating leases entered
into in the ordinary course of business).
"OPEN YEAR" has the meaning specified in Section 4.01(m)(iii).
"OPTION STOCK" means the shares of Company Stock subject to
the letter dated August 28, 2006 from the general partner of Xxxxxx
Investment Associates Limited Partnership to the chief executive
officer of BMCA.
"OTHER TAXES" has the meaning specified in Section 2.10(b).
"PARENT" means G-I Holdings so long as it owns, and any other
Person that acquires or owns, directly or indirectly, 80% or more of
the Voting Interests of BMCA.
19
"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) Xxxxxx X. Xxxxxx, his heirs,
administrators, executors and entities of which a majority of the
Voting Interests is owned by Xxxxxx X. Xxxxxx, his heirs,
administrators or executors and (b) any Person controlled, directly or
indirectly, by Xxxxxx X. Xxxxxx 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; (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.
20
"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.
"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
Loan at such time and the denominator of which is the aggregate
outstanding principal amount of Loans by all Lenders at such time.
"RATIFICATION" has the meaning specified in Section
3.01(a)(ii).
"RECOURSE SUBSIDIARIES" of any Person means all Subsidiaries
of such Person other than Non-Recourse Subsidiaries of such Person.
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve
requirements.
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Merger Agreement and the Tax
Agreement.
21
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the aggregate principal amount of
the Loans outstanding at such time.
"RESIGNATION AND ASSIGNMENT" has the meaning specified in
Section 3.01(a)(xiii).
"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.
"RHONE POULENC TRANSACTIONS" means the factual elements and
events involved in or otherwise related to the formation of
Xxxxx-Xxxxxxx 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).
"S&P" means Standard & Poor's, a division of the McGraw Hill
Companies, Inc.
"SCHEDULED MATURITY DATE" means September 15, 2014.
"SECURED PARTIES" means the Agents, the Lenders, and each
other secured party specified in the Collateral Documents as such.
22
"SECURITY AGREEMENT" means the Amended and Restated Security
Agreement delivered pursuant to Section 3.01(a)(iii) among BMCA, each
of the other Grantors party thereto and the Collateral Agent, as
amended, supplemented or otherwise modified from time to time.
"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.
"SPC" has the meaning specified in Section 8.07(k).
"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
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such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
Notwithstanding anything to the contrary in the foregoing, the term
"Subsidiary" shall not include any Non-Recourse Subsidiary or, unless
otherwise provided herein, all Non-Material Subsidiaries.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in
Section 7.07 and "Supplemental Collateral Agents" shall have the
corresponding meaning.
"SURVIVING DEBT" means the principal amount of Debt of BMCA
and its Subsidiaries as of the Closing Date outstanding immediately
before and after the Closing Date.
"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 2.10(a).
"TENDER OFFER" has the meaning specified in the preliminary
statements of this Agreement.
"TERM LOAN FACILITY" has the meaning specified in the
preliminary statements to this Agreement.
"TRANSACTION" has the meaning specified in the preliminary
statements to this Agreement.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TYPE" refers to the distinction between Loans bearing
interest at the Base Rate and Loans bearing interest at the Eurodollar
Rate.
"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.
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"WHOLLY-OWNED RECOURSE SUBSIDIARY" means a Subsidiary of a
Person (other than a Non-Recourse Subsidiary) all the Capital Stock of
which (other than directors' qualifying shares) is owned by such Person
or another Wholly-Owned Recourse Subsidiary of such Person.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"2001 Long Term Incentive Plan" means that certain incentive
compensation plan known as the Building Materials Corporation of
America 2001 Long Term Incentive Plan, effective as of December 31,
2000, pursuant to which BMCA grants Incentive Units (as defined
therein) to eligible employees of BMCA and its Subsidiaries.
"2007 NOTES" has the meaning specified in the preliminary
statements to this Agreement.
"2008 NOTES" has the meaning specified in the preliminary
statements to this Agreement.
"2014 NOTES" has the meaning specified in the preliminary
statements to this Agreement.
"2014 NOTES INDENTURE" means the Indenture dated as of July
26, 2004, among BMCA, certain of its subsidiaries party thereto as
guarantors and Wilmington Trust Company, as trustee, pursuant to which
the 2014 Notes were issued, as most recently supplemented by the Fourth
Supplemental Indenture dated as of February 21, 2007 and the Fifth
Supplemental Indenture dated as of February 22, 2007, and as further
amended, supplemented or otherwise modified from time to time.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "FROM and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms. The term "INCLUDING," when used in any Loan Document,
means "including, without limitation."
SECTION 1.03. Accounting Terms. (a) All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
(b) If any change in the accounting principles used in the
preparation of the financial statements referred to in Section 4.01(g) is
hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successor to 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
25
calculations required by Section 5.02 or Section 5.04 that would not have
resulted had such accounting change not occurred, the parties hereto agree to
enter into negotiations in order to amend such provisions so as to equitably
reflect such change such that the criteria for evaluating compliance with such
covenants by each of the Borrowers shall be the same after such change as if
such change had not been made; provided, however, that no change in GAAP that
would affect a calculation that measures compliance with any covenant contained
in Section 5.02 or Section 5.04 shall be given effect until such provisions are
amended to reflect such changes in GAAP.
SECTION 1.04. Currency Equivalents Generally. Any amount
specified in this Agreement (other than in Articles II, VII and VIII) or any of
the other Loan Documents to be in U.S. dollars shall also include the equivalent
of such amount in any currency other than U.S. dollars, such equivalent amount
to be determined at the rate of exchange quoted by DBCA in New York, New York,
at the close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in U.S. dollars
with such other currency.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Loans. On the Closing Date, each Lender to
the Existing Bridge Loan Agreement made a single Loan to the Borrowers under the
Existing Bridge Loan Agreement in the respective amounts set forth on Schedule
I. Any Loan which is repaid or prepaid cannot be reborrowed.
SECTION 2.02. Repayment of Loans. The Borrowers, jointly and
severally, agree to repay to the Administrative Agent for the ratable account of
the Lenders the aggregate outstanding principal amount of the Loans, together
with all accrued and unpaid interest, on the Scheduled Maturity Date.
SECTION 2.03. Optional Prepayments. The Loans may not be
voluntarily prepaid prior to the first anniversary of the Effective Date. The
Borrowers, may, at any time after the first anniversary of the Effective Date,
upon at least three Business Days' notice in the case of Eurodollar Rate
Advances and one Business Day's notice in the case of Base 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,
jointly and severally, agree to prepay the outstanding aggregate principal
amount of the Loans in whole or ratably in part without premium or penalty
(except as provided below), together with accrued interest thereon to the date
of such prepayment on the aggregate principal amount so prepaid, provided that
any prepayments of the Loans after the first anniversary of the Effective Date
and prior to the second anniversary of the Effective Date shall include a
prepayment premium of 1% of the principal amount of the Loans prepaid.
SECTION 2.04. Mandatory Offer to Prepay. (a) Except to the
extent the Net Cash Proceeds referred to in this subsection are required to be
applied to repay or prepay advances under the Term Loan Facility, the Borrowers
shall, with respect to Net Cash Proceeds received by any Loan Party from (A) the
26
sale, lease, transfer or other disposition of any assets of any Loan Party or
any of its Subsidiaries (other than (x) any sale, lease, transfer or other
disposition of assets referred to in clause (i), (ii), (iii) or (iv) of the
definition of Certain Permitted Dispositions and (y) 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)), and (C) any Extraordinary Receipt received by or
paid to or for the amount 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), cause to be offered to be prepaid
in accordance with clause (b) below on or prior to the date which is ten
Business Days after the date of the realization or receipt of such Net Cash
Proceeds an aggregate principal amount of Loans, together with accrued interest
on the Loans to be prepaid, in an amount equal to 100% of all such Net Cash
Proceeds; provided, however, that with respect to clause (A) and (C) above,
there shall be excluded Net Cash Proceeds from the sale of Collateral in which
the lenders under any Revolving Credit Facility have a prior lien and from any
Extraordinary Receipt in respect of such Collateral, in each case which are
applied to repay advances, if any, under the Revolving Credit Facility.
(b) With respect to each prepayment offer of Loans required
pursuant to this Section 2.04, (i) BMCA will, not later than the date specified
in Section 2.04(a) for offering to make such prepayment, give the Administrative
Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each Lender, (ii) the
Administrative Agent shall provide notice of such prepayment to each Lender,
(iii) each Lender will have the right to refuse any such prepayment by giving
written notice of such refusal to the Administrative Agent within five Business
Days after such Lender's receipt of notice from the Administrative Agent of such
offer of prepayment (and the Borrowers shall not prepay any such Loans until the
date that is specified in clause (iv) below), and (iv) the Borrowers will make
all such prepayments not so refused upon the sixth Business Day after the
Administrative Agent has provided such notice of prepayment and (v) any
prepayment refused by Lenders may be retained by the Borrowers.
SECTION 2.05. Interest. (a) Scheduled Interest. The Borrowers,
jointly and severally, agree to pay interest on the unpaid principal amount of
the Loans owing to each Lender, from the Closing Date until such principal
amount shall be paid in full, at the following rate per annum:
(i) Base Rate Advances. During such periods as such Loan is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(A) 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
Loan is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such Loan to the sum of (A) the
Eurodollar Rate (adjusted for maximum reserves) for such Interest
27
Period for such Loan 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
Advances shall be Converted or paid in full.
In the event the amount of the Term Loan Facility is increased
as contemplated by the terms thereof and in connection therewith any interest
margin under the Term Loan Facility is increased, then the respective Applicable
Margin shall increase by an amount equal to 150% of such increase of the
respective interest margin under the Term Loan Facility.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and upon the
request of the Required Lenders shall, require that the Borrowers pay interest
("DEFAULT Interest") on (i) the outstanding and unpaid principal amount of the
Loan owing to each Lender, payable in arrears on the dates referred to in clause
(i) or (ii) of Section 2.05(a), as applicable, or otherwise on demand, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on the Loans pursuant to clause (i) or (ii) of Section 2.05(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 Loans on
which such interest has accrued pursuant to clause (i) or (ii) of Section
2.05(a), as applicable, and, in all other cases, on Base Rate Advances pursuant
to clause (i) of Section 2.05(a); provided, however, that following the
acceleration of the Loans, or the giving of notice by the Agent to accelerate
the Loans that has not been revoked or rescinded, pursuant to Section 6.01,
Default Interest shall accrue and be payable hereunder whether or not previously
required by the Administrative Agent.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a notice of Conversion pursuant to Section 2.07 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 2.06. 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 2.07. Conversion of Loans. (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 2.08,
Convert all or any portion of the Loans of one Type into Loans 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
28
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than $5,000,000, no
Conversion of any Loans shall result in more than eight separate Interest
Periods and each Conversion of Loans 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 Loans to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Loans. Each notice of Conversion shall be
irrevocable and binding on the Borrowers.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances having the same Interest Periods
shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Eurodollar Rate 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
Convert Loans into Eurodollar Rate Advances shall be suspended.
SECTION 2.08. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or of making, funding
or maintaining Eurodollar Rate Advances (excluding, for purposes of this Section
2.08, any such increased costs resulting from (x) Taxes or Other Taxes (as to
which Section 2.10 shall govern) and (y) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender is organized
or has its Lending Office or any political subdivision thereof), then the
Borrowers shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that the Borrowers shall not
be responsible for costs under this Section 2.08(a) arising more than 120 days
prior to receipt by the Borrowers of the demand from the affected Lender
pursuant to this Section 2.08(a); provided further that a Lender claiming
additional amounts under this Section 2.08(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
29
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 Loan, then, upon demand by such Lender or such corporation
(with a copy of such demand to the Administrative Agent), the Borrowers, jointly
and severally, agree to pay to the Administrative Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to such Lender's Loan; provided, however, that the Borrowers shall not
be responsible for costs under this Section 2.08(b) arising more than 180 days
prior to receipt by the Borrowers of the demand from the affected Lender
pursuant to this Section 2.08(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 Eurodollar Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining such 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 Convert Loans 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 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 Advances will automatically, upon such demand, Convert into
a Base Rate Advance and (ii) the obligation of the Lenders to Convert Loans 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.
30
(e) In the event that any Lender demands payment of costs or
additional amounts pursuant to Section 2.08 or Section 2.10 or asserts, pursuant
to Section 2.08(d), that it is unlawful for such Lender to fund or maintain
Eurodollar Rate Advances 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 Loan in
full to one or more Persons selected by the Borrowers so long as (a) each such
Person satisfies the criteria of an Eligible Assignee and is reasonably
satisfactory to the Administrative Agent, (b) such Lender receives payment in
full in cash of the outstanding principal amount of the Loan owed to it and all
accrued and unpaid interest thereon and all other amounts due and payable to
such Lender as of the date of such assignment (including amounts owing pursuant
to Sections 2.08, 2.10, 2.13 and 8.04) and (c) each such Lender assignee agrees
to accept such assignment and to assume all obligations of such Lender assignor
hereunder in accordance with Section 8.07.
SECTION 2.09. Payments and Computations. (a) The Borrowers,
jointly and severally, agree to make each payment hereunder and under the Notes,
irrespective of any right of counterclaim or set-off, not later than 12:30 P.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds, with payments
being received by the Administrative Agent after such time being deemed to have
been received on the next succeeding Business Day. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrowers is in respect of principal, interest or any other Obligation then
payable hereunder and under the Notes to more than one Lender, to such Lenders
ratably in accordance with the amounts of such respective Obligations then
payable to such Lenders and (ii) if such payment by the Borrowers is in respect
of any Obligation then payable hereunder to one Lender, to such Lender 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
31
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest; 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
Loans shall be applied first to repay such Loans that are Base Rate Advances and
then to repay such Loans 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 2.08 and 2.10 hereof on such date,
ratably based upon the respective aggregate amounts thereof
owing to the Administrative Agent and the Lenders on such
date;
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(iv) fourth, to the payment of all 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
Lenders under Section 2.05(b) on such date, ratably based upon
the respective aggregate amounts of all such interest owing to
the Lenders on such date;
(v) fifth, to the payment of all of the accrued and
unpaid interest on the Loans that is due and payable to the
Lenders under Section 2.05(a) on such date, ratably based upon
the respective aggregate amounts of all such interest owing to
the Lenders on such date;
(vi) sixth, to the payment of the principal amount of
all of the outstanding Loans that is due and payable to the
Lenders on such date, ratably based upon the respective
aggregate amounts of all such principal owing to the Lenders
on such date; and
(vii) seventh, to the payment of all other
Obligations of the Loan Parties owing under or in respect of
the Loan Documents that are due and payable to the
Administrative Agent and the Lenders on such date, ratably
based upon the respective aggregate amounts of all such
Obligations owing to the Administrative Agent and the Lenders
on such date.
SECTION 2.10. Taxes. (a) Any and all payments by any Loan
Party to or for the account of any Lender or any Agent hereunder or under the
Notes or any other Loan Document shall be made, in accordance with Section 2.09
or the applicable provisions of such other Loan Document, if any, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender or such
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Lender, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the 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 2.10) such Lender or such Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make all such deductions and
(iii) such Loan Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
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(b) In addition, a Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made by such Loan Party
hereunder or under any Notes or any other Loan Documents or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Notes or the other Loan Documents (hereinafter referred to
as "OTHER Taxes").
(c) The Loan Parties shall indemnify each Lender and each
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.10, imposed on or paid by
such Lender or such Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender or such Agent (as the case may be) makes written demand setting
forth in reasonable detail its claim and the basis for indemnification
hereunder.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or
the other Loan Documents by or on behalf of a Loan Party through an account or
branch outside the United States or by a payor that is not a United States
person, if such Loan Party determines that no Taxes are payable in respect
thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter as reasonably requested
in writing by the Borrowers (but only so long thereafter as such Lender remains
lawfully able to do so), provide each of the Administrative Agent and the
Borrowers with two original Internal Revenue Service Forms W-8BEN or W-8ECI (or
in the case of a 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
34
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that if, at the effective date of the
Assignment and Acceptance pursuant to which a Lender becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) of
this Section 2.10 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8EC1 or the related certificate described above, that the applicable Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Borrowers and shall not be obligated to include in such form or document
such confidential information. For purposes of subsections (d) and (e) of this
Section 2.10, the terms "UNITED STATES" and "UNITED STATES PERSON" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(f) For any period with respect to which a Lender has failed
to provide the Borrowers with the appropriate form, certificate or other
document described in subsection (e) above (other than if such failure is due to
a change in law, or in the interpretation or application thereof, occurring
after the date on which a form, certificate or other document originally was
required to be provided or if such form, certificate or other document otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under subsection (a) or (c) of this Section 2.10 with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure to
deliver a form, certificate or other document required hereunder, the Loan
Parties shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
(g) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.10
shall survive the payment in full of the principal and of interest on all Loans
hereunder.
(h) Notwithstanding anything to the contrary in this Section
2.10, any Lender claiming any additional amounts payable pursuant to this
Section 2.10 shall use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
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 2.10(c), and so long as the Borrowers, jointly
and severally, agree in writing to indemnify the relevant Lender, the
Administrative Agent or any other Agent against any damages or costs in
connection with such contest, the relevant Lender, the Administrative Agent or
35
any other Agent, as applicable, shall cooperate with the Borrowers in
challenging such Taxes at the Borrowers' expense, if so requested by the
Borrowers, unless the relevant Lender, the Administrative Agent or other Agent,
as the case may be, determines in its discretion that it would be adversely
affected by such contest. If any Lender, the Administrative Agent or any other
Agent, as applicable, receives a refund of a Tax previously paid by the
Borrowers or otherwise indemnified against under Section 2.10(c), which refund
in the good faith judgment of such Lender, the Administrative Agent or such
other Agent, as the case may be, is attributable to such payment made by the
Borrowers, then the Lender, the Administrative Agent or other Agent, as the case
may be, shall reimburse the Borrowers for such amount (together with any
interest received thereon) as the Lender, the Administrative Agent or other
Agent, as the case may be, determines to be the proportion of the refund as will
leave it, after such reimbursement, in no better or worse position (taking into
account expenses or any Taxes imposed on the refund) than it would have been in
if the payment had not been required, provided, however, that any such
reimbursement shall be made only after such refund has been finally determined
and cannot be adjusted and the Borrowers shall return such refund to such Lender
or Agent if erroneously made or otherwise changed. At the expense of the
Borrowers, the Lender, an Administrative Agent or other Agent shall claim any
refund involving a Tax against which it is indemnified by the Borrowers that
such Lender or Agent determines is available to it, unless such Lender or Agent
concludes in its discretion that it would be adversely affected by making such a
claim. The agreements in this clause (i) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
SECTION 2.11. Sharing of Payments, Etc. If any Lender shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lenders hereunder and
under the other Loan Documents at such time) of payments on account of the
Obligations due and payable to all Lenders hereunder and under the Notes at such
time obtained by all the Lenders at such time or (b) on account of Obligations
owing (but not due and payable) to such Lender hereunder and under 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 under 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
36
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrowers agree that any Lender so purchasing an interest or
participating interest from another Lender pursuant to this Section 2.11 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such interest or participating
interest, as the case may be.
SECTION 2.12. Use of Proceeds. The proceeds of the Loans were
used solely to (i) finance, in part, the Tender Offer and the Transaction and
(ii) pay fees and expenses in connection with the Transaction.
SECTION 2.13. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrowers to such Lender resulting from the Loan 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 Loan owing to
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, payable to the order of such Lender in a principal amount equal to
the Loans of such Lender. All references to Notes in the Loan Documents shall
mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(d) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Loan made hereunder, (ii) the Type of Loans and,
if appropriate, the Interest Period applicable thereto, (iii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iv) the amount of
any principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, and (v) the amount of any sum received by
the Administrative Agent from the Borrowers hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Administrative Agent
or such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrowers under this Agreement.
SECTION 2.14. Relationship Among the Borrowers. (a)
Administrative Borrower. BMCA Acquisition and BMCA Acquisition Sub hereby
appoint BMCA, and BMCA shall act under this Agreement, as the agent,
37
attorney-in-fact and legal representative of BMCA Acquisition and BMCA
Acquisition Sub for all purposes, including taking any 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
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
Conversions and continuations), consents or other actions furnished or taken by
such Borrower or any other Borrower hereunder.
(c) Resignation. BMCA may resign from acting as the agent for
the other Borrowers pursuant to this Section 2.14 at any time by notifying the
Administrative Agent, provided that such resignation shall not become effective
until the earlier of (i) the appointment by the other Borrowers of another
Borrower as successor agent for such Borrowers hereunder, and acceptance by such
Borrower of such appointment and (ii) the date that is 30 days after delivery of
notice by BMCA of its resignation. At any time that there is no Borrower acting
as agent hereunder or under any of the Loan Documents, all rights and
obligations of the Borrowers, including the delivery of such notices, requests,
certificates, statements and other documents, permitted to be exercised or
performed by Borrower as such agent on behalf of the Borrowers shall be
performed by the Borrowers in respect of the Loan Documents.
ARTICLE III
CONDITIONS OF EFFECTIVENESS
SECTION 3.01. Conditions Precedent. Each of the following
conditions precedent shall be satisfied in order for this Agreement to be
effective (and the date on which all such conditions are satisfied is the
"EFFECTIVE DATE"):
(a) The Administrative Agent shall have received on or before
the Effective 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;
38
(ii) a ratification of Guaranty in substantially the
form of Exhibit J hereto (the "RATIFICATION") duly executed by
each Guarantor;
(iii) an Amended and Restated Security Agreement in
substantially the form of Exhibit I hereto (the "SECURITY
AGREEMENT"), duly executed by the Collateral Agent and each
Loan Party;
(iv) except as provided in Section 5.01(k)(vii),
mortgage amendments in substantially the form of Exhibit E
hereto (with such changes as may be reasonably 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 (the "MORTGAGE AMENDMENTS"), duly
executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the
Mortgage Amendments have been duly executed,
acknowledged and delivered on or before the Effective
Date and are in form suitable for filing or
recording, in all filing or recording offices that
the Administrative Agent may deem necessary 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) a modification or endorsement, in form
and substance reasonably satisfactory to the
Administrative Agent, to each of the Mortgage
Policies, and
(C) 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 preserve valid and subsisting Liens on the
property described in the Mortgages has been taken;
(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 Effective 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
39
such certificate and (3) such Loan Party is duly organized and
in good standing or presently subsisting under the laws of the
State of the jurisdiction of its organization;
(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 Effective Date (the statements made
in which certificate shall be true on and as of the Effective
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)(vii) 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)(vi) were adopted and on the Effective 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) 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;
(ix) 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;
(x) 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;
(xi) a favorable opinion of Weil, Gotshal & Xxxxxx
LLP, counsel for the Loan Parties, in substantially the form
of Exhibit G hereto;
(xii) a favorable opinion of Xxxx X. Xxxxxxx, the
acting General Counsel to BMCA, in substantially the form of
Exhibit H hereto; and
(xiii) the Resignation and Assignment, in
substantially the form of Exhibit B hereto (the "RESIGNATION
AND Assignment") duly executed by the Collateral Agent and the
Existing Agent.
(b) 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 with respect to the Transaction as referred to in
40
Section 8.14, and 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.
(c) 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.
(d) 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 Effective
Date, stating that:
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
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, in which case as of such specific date; and
(ii) no Default has occurred and is continuing; and
(e) the Administrative Agent shall be in its reasonable
judgment satisfied that (i) no action adverse to the validity and enforceability
of the liens created in favor of the Collateral Agent, for the benefit of the
Lenders, under the Collateral Documents or the rights or remedies of the Agents
or the Lenders under any of the Loan Documents has been taken in or in
connection with the G-I Holdings bankruptcy proceedings (it being understood
that the filings on June 30, 2003 of the Notice of Appeal and the brief in
support thereof by the Official Committee of Asbestos Claimants in the G-I
Holdings bankruptcy proceedings shall not, solely by themselves, be deemed to be
adverse actions for purposes of this clause (b)) or (ii) if any such action has
been taken, such action has been resolved in a manner reasonably satisfactory to
the Administrative Agent.
SECTION 3.02. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the
Effective 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 shall not
include Elk and its Subsidiaries:
41
(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 Term Loan Facility.
(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, and the Term Loan Facility,
result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation
of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could reasonably be
expected to have a Material Adverse Effect. In making the foregoing
representations with respect to non-contravention with Regulations U
and X, the Borrowers are relying on each Lender having determined
42
that the good faith loan value of the Collateral other than Margin
Stock securing the Loan made by it is not less than the amount of such
Loan.
(d) Governmental Authorizations. No Governmental
Authorization, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan
Party of any Loan Document to which it is or is to be a party, or for
the consummation of the Transaction (except for the filing of a
certificate of merger in connection with the Merger), (ii) the grant by
any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens created
under the Collateral Documents (including the first priority nature
thereof (subject to Liens permitted under any Loan Document)) or (iv)
the exercise by any Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals,
actions, notices and filings which have been duly obtained, taken,
given or made on or prior to the date hereof and are in full force and
effect or will be made to perfect a security interest as contemplated
by the Security Agreement and Section 5.01(j) or (k). 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
Effective 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.
(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
43
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, 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 Loan were 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 the Loans, nor the application
of the proceeds or repayment thereof by the Borrowers, nor the
consummation of the other transactions contemplated by the Loan
Documents, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(i) No Burdensome Restrictions. Neither any Loan Party nor any
of its Subsidiaries is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument containing
restrictions, or subject to any charter or corporate restriction, that
could be reasonably expected to have a Material Adverse Effect.
44
(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) hereto,
(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 which such Loan Party or
45
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. ss.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
46
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 (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.
47
(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.
(vi) Based on current information and circumstances,
neither BMCA nor any of its Subsidiaries expect any of the
Loans hereunder to be specifically identified (in whole or in
part) as a "reportable transaction" on Internal Revenue
Service Form 8886 filed with U.S. Federal tax returns filed by
them or the G-I Holdings Tax Group for purposes of Section
6011, 6111 or 6112 of the Internal Revenue Code or the
Treasury Regulations promulgated thereunder.
(n) Labor Matters. Neither the business nor the properties of
any Loan Party or any of its Subsidiaries are affected by any strike,
lockout or other labor dispute, that could be reasonably likely to have
a Material Adverse Effect.
(o) Surviving Debt. Set forth on Schedule 4.01(o) hereto is a
complete and accurate list of all Surviving Debt as of the Closing
Date, 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 Closing Date 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 Closing Date 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. (i) Set forth on Schedule 4.01(r)(1)
hereto is as of the Closing Date 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.
48
(ii) 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, 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 Closing Date 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 Closing Date 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 Closing Date of all Material
Contracts of each Loan Party and its Subsidiaries, showing the parties
and term thereof. Each such Material Contract has been duly authorized,
executed and delivered by each Loan Party party thereto, has not been
amended or otherwise modified, except as delivered prior to the date
hereof or in the case of modifications after the date of this
Agreement, as permitted under the Loan Documents, is in full force and
effect and is binding upon and enforceable against all parties thereto
in accordance with its terms, and there exists no default under any
Material Contract that would give the counterparty thereto the right to
terminate such Material Contract (after the expiration of any
applicable cure period).
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Loan or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, 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):
49
(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 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
50
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of BMCA or such Subsidiary, as
the case may be, and that the loss thereof is not disadvantageous in
any material respect to BMCA, such Subsidiary or the Lenders; provided
further that any Guarantor may be dissolved, provided that (i) no Event
of Default shall then exist and be continuing, (ii) all of the property
of such Guarantor shall be transferred to BMCA or any other Guarantor,
and (iii) no such dissolution shall adversely affect the Collateral
(including the nature, status, quality or value thereof) or the
interest of the Collateral Agent therein; provided, further, that any
Loan Party which is now a corporation can convert into a limited
liability company, as long as (1) no Event of Default shall then exist
and then be continuing, (2) no such conversion shall adversely affect
the obligations of such Loan Party under the Loan Documents or the
Collateral (including the nature, status, quality or value thereof) or
the interest of the Collateral Agent therein and such Loan Party shall
execute all documents and take such actions in connection with such
conversion prior to the effect thereof as reasonably requested by the
Administrative Agent.
(f) Visitation Rights. At any reasonable time and from time to
time and in each case, during normal business hours, permit the
Administrative Agent or the Collateral Agent, or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
BMCA and any of its Subsidiaries, to conduct appraisals and field
examinations and monitor the collateral as the Administrative Agent or
the Collateral Agent may require, and to discuss the affairs, finances
and accounts of BMCA and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants; provided, however, that any such discussions shall be in
the presence of a Responsible Officer of BMCA, so long as the
Responsible Officers of BMCA have made reasonable efforts to make
themselves available for such purpose.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of BMCA and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted and
will from time to time make or cause to be made all appropriate
repairs, renewals and replacements thereof except where failure to do
so would not materially adversely affect the use of the related
property.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates (including payments of
any management fees) on terms that are fair and reasonable and no less
favorable to BMCA or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
51
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Administrative Agent, following the occurrence
and during the continuance of a Default, (y) the formation or
acquisition of any new direct or indirect Subsidiaries by any Loan
Party or (z) the acquisition of any property by any Loan Party, and
such property, in the judgment of the Administrative Agent, shall not
already be subject to a perfected security interest in favor of the
Collateral Agent for the benefit of the Secured Parties (except to the
extent the applicable Loan Party is prohibited by law or contract),
then in each case at BMCA's reasonable expense:
(i) in connection with the formation or acquisition
of a Subsidiary that is not (x) a CFC or (y) a Subsidiary that
is held directly or indirectly by a CFC, within 15 days after
such formation or acquisition, cause each such Subsidiary, and
cause each direct and indirect parent of such Subsidiary owned
by BMCA (if it has not already done so), to duly execute and
deliver to the Administrative Agent a guaranty or guaranty
supplement and a security agreement supplement, in form and
substance satisfactory to the Administrative Agent,
guaranteeing the other Loan Parties' Obligations under the
Loan Documents and providing security in respect of such
guaranty, except in the case of Elk and its Subsidiaries as of
the date of the Merger, deliver such documents on or prior to
the date of the Merger,
(ii) within 15 days after such request, formation or
acquisition furnish to the Administrative Agent a description
of the real and personal properties of the Loan Parties and
their respective Subsidiaries which are, or are required in
accordance with the terms of the Loan Documents to become,
Loan Parties, in detail reasonably satisfactory to the
Administrative Agent,
(iii) within (x) 15 days after a request or
acquisition of personal property or (y) within 60 days after a
request or acquisition of real property, in each case, by any
Loan Party, except, in the case of Elk and its Subsidiaries,
90 days after consummation of the Merger, (A) duly execute and
deliver, and cause each Loan Party to duly execute and
deliver, to the Administrative Agent such additional
Mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and other security agreements as specified by, and
in form and substance satisfactory to the Administrative
Agent, securing payment of all the Obligations of such Loan
Party under the Loan Documents and creating Liens on all such
properties and (B) such formation or acquisition of any new
Subsidiary which is, or is required to become, a Loan Party,
duly execute and deliver and cause each Subsidiary to duly
execute and deliver to the Collateral Agent, Mortgages,
pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other
security agreements as specified by, and in form and substance
satisfactory to the Administrative Agent, securing payment of
all of the Obligations of such Subsidiary under the Loan
Documents; provided that (A) the stock of any Subsidiary held
by a CFC shall not be pledged and (B) if such new property is
Equity Interests in a CFC, only 66% of such Equity Interests
shall be pledged in favor of the Secured Parties,
52
(iv) subject to Section 5.01(k)(iv), within 30 days
after such request, formation or acquisition, take, and cause
each Loan Party and each newly acquired or newly formed
Subsidiary (other than any Subsidiary that is a CFC or a
Subsidiary that is held directly or indirectly by a CFC) to
take, whatever action (including the recording of mortgages,
the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title
documents) may be necessary or reasonably advisable in the
opinion of the Administrative Agent to vest in the Collateral
Agent (or in any representatives of the Collateral Agent
designated by such entity) valid and subsisting Liens on the
properties purported to be subject to the mortgages, pledges,
assignments, security agreement supplements, intellectual
property security agreement supplements and security
agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their
terms,
(v) within 60 days after such request, formation or
acquisition or, in the case of Elk and its Subsidiaries, 90
days after consummation of the Merger (or such later date as
may be agreed to by the Administrative Agent), deliver to the
Administrative Agent, upon the request of the Administrative
Agent in its sole discretion, exercised reasonably, a signed
copy of a favorable opinion, addressed to the Agents 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
53
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
(ii) Promptly upon request by the Administrative
Agent, do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such
further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing
statements and continuations thereof, termination statements,
notices of assignment, transfers, certificates, assurances and
other instruments as the Administrative Agent may reasonably
require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan
Party's or any of its Subsidiaries' properties, assets, rights
or interests to the Liens now or hereafter intended to be
created by any of the Collateral Documents, (C) perfect and
maintain the validity, effectiveness and priority of any of
the Collateral Documents and any of the Liens intended to be
created thereunder and (D) assure, convey, grant, assign,
transfer, preserve, protect and confirm more effectively unto
the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection
with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
(iii) (A) If any of the items required to be
delivered with respect to the Properties were not delivered on
the Closing Date, BMCA shall, within 60 days after the Closing
Date (or such later date as may be agreed to by the
Administrative Agent), cause the same to be delivered to the
Collateral Agent; provided, however, that BMCA shall, within
30 days after the Closing Date (or such later date as may be
agreed to by the Administrative Agent), cause the mortgage in
respect of the Property in Alabama to be delivered to the
Collateral Agent. Further, BMCA shall, within such 60 day
period, (A) deliver to the Collateral Agent duly executed
amendments to the Mortgages requested by the Collateral Agent
and take such other actions and execute such other documents
as reasonably requested by the Collateral Agent that relate to
title and survey matters and (B) if the survey for a Property
that has been delivered pursuant to the Existing Bridge Loan
Agreement is not acceptable to the issuer of the Mortgage
Policies or if a survey for a Property was not delivered, BMCA
shall, within 90 days after the Closing Date (1) provide a new
54
American Land Title Association/American Congress on Surveying
and Mapping form survey, dated to a current date and for which
all necessary fees (where applicable) have been paid,
certified to the Collateral Agent and the issuer of the
Mortgage Policies in a manner reasonably satisfactory to the
Collateral Agent by a land surveyor duly registered and
licensed in the State in which such Property described in such
survey is located and reasonably acceptable to the
Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any
easements, parking spaces, rights of way, building set back
lines and other dimensional regulations and the absence of
encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and
other defects reasonably acceptable to the Administrative
Agent and (2) cause a "land same as survey" endorsement, an
endorsement removing the standard survey exception and any
other survey related endorsements, to be added to each
Mortgage Policy same, each in form and substance reasonably
acceptable to the Administrative Agent and (C) within 60 days
after the Closing Date, BMCA shall cause to be delivered to
the Administrative Agent (x) in respect of each Mortgage
Policy for the Properties in California and Georgia, a zoning
endorsement and (y) in respect of all other Properties
encumbered by a Mortgage, a zoning endorsement, a zoning
compliance letter from the applicable municipality, a zoning
opinion or a PZR report.
(iv) On or prior to a date that is 45 days following
the Closing Date or such later date as the Administrative
Agent may determine in its sole discretion, BMCA and its
Subsidiaries shall have entered into one or more account
control agreements in form and substance satisfactory to the
Administrative Agent in respect of deposit accounts and
securities accounts of BMCA and its Subsidiaries (other than
Elk and its Subsidiaries), and on or prior to a date that is
45 days following the date of the Merger or such later date as
the Administrative Agent may determine in its sole discretion,
Elk and its Subsidiaries shall have entered into one or more
account control agreements in form and substance satisfactory
to the Administrative Agent in respect of deposit accounts and
securities accounts of Elk and its Subsidiaries.
(v) With respect to Elk and its Subsidiaries as of
the date of the Merger, (A) on or prior to a date that is 15
days following the date of the Merger or such later date as
the Administrative Agent may determine in is sole discretion,
BMCA shall cause to be delivered to the Administrative Agent
resolutions and legal opinions, in form and substance
reasonably satisfactory to the Administrative Agent, with
respect to the supplements to the Security Agreement and the
Guaranty delivered on the date of the Merger by such entities
organized under the laws of the State of Delaware and on or
prior to a date that is 90 days following the date of the
Merger or such later date as the Administrative Agent may
determine in its sole discretion, BMCA shall cause to be
delivered to the Administrative Agent such resolutions and
legal opinions with respect to such supplements delivered by
each such entity organized under the laws of a jurisdiction in
which a Mortgage is to be recorded pursuant to the terms
hereof and (B) on or prior to a date that is 45 days following
the date of the Merger or such later date as the
55
Administrative Agent may determine in its sole discretion,
BMCA shall cause to be delivered to the Collateral Agent
certificates representing equity interests (accompanied by
undated stock powers executed in blank) and instruments
evidencing Debt, indorsed in blank, in each case pledged under
the Security Agreement on the date of the Merger.
(vi) The Borrowers shall use their commercially
reasonable efforts to request and obtain or cause the
applicable Loan Party who holds title to each IRB Property to
request and obtain not later than 60 days after the Closing
Date (or such later date as may be agreed to by the
Administrative Agent), all consents and approvals (each, an
"IRB CONSENT") that are required pursuant to the current
underlying industrial revenue bond (or like) financing
documents relating to each IRB Property such that the
Borrowers or the applicable Loan Party, as the case may be,
will be permitted to grant a Mortgage covering each IRB
Property without being in breach or default under such
industrial revenue bond financing documents. Within 60 days
after the earlier of (A) receiving the applicable IRB Consent
for an IRB Property or (B) the underlying industrial revenue
bond (or like) financing being discharged, the Borrowers shall
deliver, or cause the applicable Loan Party to deliver, to the
Administrative Agent, similar items, agreements, instruments
and documents with respect to such IRB Property as required by
Section 5.01(j) above with respect to newly acquired property,
including a new land survey as described in Section
5.01(k)(iii).
(vii) The Borrowers shall use their commercially
reasonable efforts to request and obtain or cause the
applicable Loan Party who holds title to each leased Property
to request and obtain from the applicable landlord not later
than 60 days after the Closing 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.
(viii) If any of the items referred to in Section
3.01(a)(iv) were not received on the Effective Date, BMCA
shall, within 10 days after the Effective Date (or such later
date as may be agreed to by the Administrative Agent) cause
the same to be delivered to the Collateral Agent.
(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
56
Administrative Agent, at the expense of BMCA, an environmental site
assessment report for any of its or its Subsidiaries' properties
described in such request, prepared by an environmental consulting firm
acceptable to the Administrative Agent, indicating the presence or
absence of Hazardous Materials and the estimated cost of any
compliance, removal or remedial action in connection with any Hazardous
Materials on such properties, if any.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which BMCA or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or
be terminated or any rights to renew such leases to be forfeited or
cancelled, notify the Administrative Agent of any material default of
which it is aware by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any
such default by a Loan Party, and cause each of its Subsidiaries to do
so, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to
have a Material Adverse Effect.
(o) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its
terms, take all such action to such end as may be from time to time
requested by the Administrative Agent, and cause each of its
Subsidiaries to do so, except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably likely
to have a Material Adverse Effect.
(p) G-I Holdings. Upon the Administrative Agent's reasonable
request, but not more frequently than once per month, make a senior
officer of BMCA available to provide to the Administrative Agent (i) an
update of developments in (A) the G-I Holdings bankruptcy proceedings,
and (B) any proceedings related to asserted Federal income tax
liabilities in connection with the Rhone Poulenc Transactions and (ii)
any information relating thereto that the Administrative Agent may
reasonably request.
(q) Reportable Transaction. BMCA will notify the
Administrative Agent promptly in the event that BMCA or any other
member of the G-I Holdings Tax Group specifically identifies any of the
Loans under this Agreement as a "reportable transaction" on Internal
Revenue Service Form 8886 filed with the U.S. Federal tax returns for
purposes of Sections 6011, 6111 or 6112 of the Internal Revenue Code or
the Treasury Regulations promulgated thereunder.
(r) Tax Liabilities. BMCA (i) shall immediately inform the
Lenders with respect to the Rhone Poulenc Transactions of (A) any court
ruling determining tax liability or otherwise addressing the merits of
the case; (B) any proposed or actual assessment or deficiency as to
which any Loan Party or any member of the G-I Holdings Tax Group has
knowledge; or (C) any written demand for payment of taxes from a tax
authority, and (ii) shall provide any information available to them and
reasonably required by the Lenders to make a determination with respect
to the matters set forth in Section 6.01(h)(i).
57
SECTION 5.02. Negative Covenants. So long as any Loan or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
BMCA will not, at any time (provided, that until the consummation of the Merger,
compliance with respect to Elk and its Subsidiaries with the provisions of this
Section 5.02 will not be required, but BMCA will use commercially reasonable
efforts to cause Elk and its Subsidiaries to so comply):
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including accounts) whether now owned or hereafter acquired,
or sign or file or suffer to exist, or permit any of its Subsidiaries
to sign or file or suffer to exist, under the Uniform Commercial Code
of any jurisdiction, a financing statement that names BMCA or any of
its Subsidiaries as debtor, or sign or suffer to exist, or permit any
of its Subsidiaries to sign or suffer to exist, any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents and Liens
securing the Revolving Credit Facility (and the other
Obligations referred to therein entitled to share in the
collateral therefor), the Term Loan Facility (and the other
Obligations referred to therein entitled to share in the
collateral therefor), and the Existing Indentures;
(ii) Permitted Liens;
(iii) (A) Liens existing on the date hereof and
described on Schedule 4.01(p) hereto, (B) after the
consummation of the Merger, cash collateral to secure any
outstanding Elk Letters of Credit and (C) on or after the
Effective 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;
58
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(B)(II); provided,
however, that no such Lien shall extend to or cover any
Collateral or assets other than the assets subject to such
Capitalized Leases; and provided, further that the aggregate
principal amount of the Debt secured by Liens permitted by
this clause (v) shall not exceed the amount permitted with
respect thereto under Section 5.02(b)(iii)(B) at any time
outstanding;
(vi) Liens arising in connection with sale-leaseback
transactions permitted under Section 5.02(b)(iii)(B)(III);
provided, however, that no such Lien shall extend to or cover
any Collateral or assets other than the assets subject to such
sale-leaseback transactions; and provided, further that the
aggregate principal amount of the Debt secured by Liens
permitted by this clause (vii) shall not exceed the amount
permitted with respect thereto under Section 5.02(b)(iii)(B)
at any time outstanding;
(vii) Liens to secure Debt permitted under Section
5.02(b)(iii)(J);
(viii) the replacement, extension or renewal of any
Lien permitted by clauses (iii) through (vii) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby; provided, however, that the aggregate
principal amount of the Debt secured by Liens permitted by
this clause (viii) (excluding the replacement, extension or
renewal of any Lien permitted by clause (iii) above) shall not
exceed the applicable amount permitted with respect thereto
under Section 5.02(b)(iii)(B) or (E), as the case may be, at
any time outstanding; and
(ix) Liens arising in connection with operating
leases to the extent such operating leases are otherwise
permitted hereunder; provided, however, that no such Lien
shall extend to or cover any Collateral or assets other than
the assets subject to such operating leases.
(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, subject to the terms of
the Intercreditor Agreements, delivered to the Collateral
Agent pursuant to the terms of the Security Agreement;
(ii) in the case of any Subsidiary of BMCA, Debt owed
to BMCA or to a wholly owned Subsidiary of BMCA, provided
that, in each case, such Debt (w) shall be permitted under
Section 5.02(f), (x) shall, in the case of Debt owed to a Loan
Party, constitute Pledged Debt and (y) shall be evidenced by
59
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, subject to the terms of
the Intercreditor Agreements, delivered to the Collateral
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 Term
Loan Facility and the Elk Letters of Credit;
provided, however, that in respect of any proposed
borrowing under the Term Loan Facility after the end
of the second fiscal quarter in Fiscal Year 2008,
which shall result in the principal amount thereunder
to be in excess of $975,000,000, such borrowing may
only be incurred if, after giving effect thereto,
BMCA is in compliance with the covenant in Section
5.04,
(B) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance
with the provisions of Section 5.04 (such compliance
to be determined on the basis of the required
financial information most recently delivered to the
Administrative Agent and the Lenders as though such
Debt had been incurred as of the first day of the
fiscal period covered thereby), (I) Debt secured by
Liens permitted by Section 5.02(a)(iv), (II)
Capitalized Leases permitted by Section 5.02(a)(v),
and (III) Debt in respect of sale-leaseback
transactions permitted by Section 5.02(a)(vii);
provided, however, that (i) such Debt incurred
pursuant to this Section 5.02(b)(iii)(B) shall not
have scheduled amortization payments prior to the
Scheduled Maturity Date in an aggregate principal
amount in any Fiscal Year (together with the
aggregate scheduled amortization payments in any
Fiscal Year prior to the Scheduled Maturity 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
60
obligor thereof), any Debt under the 2014 Notes
Indenture, the Term Loan Facility or the Revolving
Credit Facility; 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 the
Scheduled Maturity Date that is more onerous than the
remaining scheduled amortization prior to the
Scheduled Maturity Date applicable to the Debt being
refinanced and that any Net Cash Proceeds received by
BMCA in connection with any refinancing of such Debt
and not applied to such refinancing shall be applied
as provided in Section 2.05,
(D) The Surviving Debt and, on or after the
Effective Date, the Debt listed on Schedule
5.02(b)(iii)(D) hereto,
(E) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance
with the provisions of Section 5.04 (such compliance
to be determined on the basis of the required
financial information most recently delivered to the
Administrative Agent and the Lenders as though such
Debt had been incurred as of the first day of the
fiscal period covered thereby), Debt extending the
maturity of, or refunding or refinancing, in whole or
in part (without any increase in the principal amount
thereof or any change in any direct or contingent
obligor thereof), any Debt described in clause (B)
above and any other Surviving Debt, provided that (x)
there are no remaining scheduled amortization
payments in respect of such extending, refunding or
refinancing Debt prior to the Scheduled Maturity Date
that is more onerous than the remaining scheduled
amortization prior to the Scheduled Maturity Date if
any, applicable to the Debt being extended, refunded
or refinanced, (y) any security arrangements in
respect of such extended, refunded or refinanced Debt
shall be no more onerous to the Lenders than those
set forth in the security documentation in effect at
such time; and (z) there are no scheduled
amortization payments of principal in respect of such
Debt prior to the Scheduled Maturity Date in an
aggregate principal amount in any Fiscal Year
(together with the aggregated scheduled amortization
payments in any Fiscal Year prior to the Scheduled
Maturity Date of any Debt permitted pursuant to
clauses (B) and (C) above and clause (J) below)
greater than the Amortization Basket; and 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,
61
refunding or refinancing and the direct and
contingent obligors therefor shall not be changed as
a result of or in connection with such extension,
refunding or refinancing,
(F) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance,
with the provisions of Section 5.04 (such compliance
to be determined on the basis of the required
financial information most recently delivered to the
Administrative Agent and the Lenders as though such
Debt had been incurred as of the first day of the
fiscal period covered thereby), unsecured,
subordinated Debt with market terms owing to G-I
Holdings or BMCA Holdings,
(G) Debt consisting of surety bonds or
similar instruments in favor of government agencies
in connection with workers' compensation liabilities,
taxes, assessments or other obligations; provided,
however, that such Debt is incurred in the ordinary
course of business,
(H) Debt of any entity acquired by BMCA or
its Subsidiaries in accordance with the terms hereof
so long as (i) such Debt was incurred prior to such
acquisition (and not in connection with or
contemplation of, such acquisition), (ii) both before
and after giving effect to such acquisition, no
Default or Event of Default shall exist, and (iii)
such Debt has no additional direct, indirect or
contingent obligor,
(I) Debt of any Loan Party consisting of
Contingent Obligations in respect of Debt of other
Loan Parties, so long as such other Loan Parties are
permitted to incur such Debt hereunder,
(J) So long as (1) no Default has occurred
and is continuing (both at the time of such
incurrence and after giving pro forma effect
thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance,
with the provisions of Section 5.04 (such compliance
to be determined on the basis of the required
financial information most recently delivered to the
Administrative Agent and the Lenders as though such
Debt had been incurred as of the first day of the
fiscal period covered thereby), Debt ranked junior
(in respect of any Liens securing such Debt, which
Liens shall be ranked junior to the Liens securing
this Loan Facility); provided, however, that there
are no scheduled amortization payments of principal
in respect of such Debt prior to the Scheduled
Maturity Date in an aggregate principal amount in any
Fiscal Year (together with the aggregated scheduled
amortization payments in any Fiscal Year prior to the
Scheduled Maturity Date of any Debt permitted
pursuant to clauses (B), (C) and (E) above) greater
than the Amortization Basket, and
62
(K) At any time prior to the thirtieth
Business Day after the date of the Merger, the Elk
Private Notes.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof (other than as a result of an
Investment permitted by Section 5.02(f)(vii)(B) involving complementary
lines of business).
(d) Mergers, Etc. Other than pursuant to the Merger, merge
into or consolidate with any Person or permit any Person to merge into
it, or permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary of BMCA may merge into or
consolidate with any other Subsidiary of BMCA; provided,
however, that, in the case of any such merger or
consolidation, the Person formed by such merger or
consolidation shall be a wholly owned Subsidiary of BMCA; and
provided further that, in the case of any such merger or
consolidation to which a Guarantor is a party, the Person
formed by such merger or consolidation shall be a Guarantor;
(ii) in connection with any acquisition permitted
under Section 5.02(f), any Subsidiary of BMCA may merge into
or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided,
however, that (x) the Person surviving such merger shall be a
wholly owned direct or indirect Subsidiary of BMCA and (y) in
the case of any such merger or consolidation to which a
Guarantor is a party, the Person formed by such merger or
consolidation shall be a Guarantor;
(iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause
(ii) thereof), any Subsidiary of BMCA may merge into or
consolidate with any other Person or permit any other Person
to merge into or consolidate with it; and
(iv) any of BMCA's Subsidiaries may merge into BMCA;
provided that the Person surviving such merger shall be BMCA.
provided, however, that in each case, immediately before and after
giving effect thereto, no Event of Default shall have occurred and be
continuing and, in the case of any such merger to which BMCA is a
party, BMCA is the surviving corporation.
(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);
63
(iii) the sale of (x) any asset identified on
Schedule 5.02(e) hereto (such assets being "EXCLUDED ASSETS")
or (y) any other assets in any Fiscal Year by BMCA or any
Subsidiary, the fair market value of which is not greater than
$100,000,000; provided, however, that any unused portion
thereof may be carried forward to any succeeding year; and
provided, further, that the fair market value of all assets
sold by BMCA or any Subsidiary during the term of this
Agreement shall in no event be greater than $300,000,000 in
the aggregate (the foregoing asset sales described in clauses
(x) and (y) above being collectively, "PERMITTED ASSET SALES")
so long as in each case (A) the terms of any such sale shall
be commercially reasonable, (B) the purchase price paid to
BMCA or such Subsidiary for such asset shall be no less than
the fair market value of such asset at the time of such sale
and (C) at least 66 2/3% of the purchase price for such asset
shall be paid to BMCA or such Subsidiary solely in cash;
(iv) sales by means of a lease or sublease of
property of BMCA or any of its Subsidiaries, so long as (x)
such transaction is permitted pursuant to Section
5.02(b)(iii)(B)(III) and (y) BMCA or such Subsidiary continues
to reflect ownership of such property in its financial
statements in accordance with GAAP;
(v) assignments and licenses of intellectual property
of BMCA and its Subsidiaries in the ordinary course of
business; and
(vi) dispositions of property not to exceed an
aggregate fair market value of $10,000,000 in the aggregate,
which in the commercially reasonable opinion of BMCA or such
Subsidiary, and consistent with historic business practice, is
obsolete;
provided that in the case of sales of assets pursuant to clauses (i),
(iii), (iv), and (vi) above, BMCA shall, on the date of receipt by any
Loan Party or any of its Subsidiaries of the Net Cash Proceeds from
such sale, offer to prepay the Loans pursuant to and to the extent set
forth in Section 2.04.
(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);
64
(iii) loans and advances to employees in the ordinary
course of the business of BMCA and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $2,500,000 at any time outstanding;
(iv) Investments by BMCA and its Subsidiaries in Cash
Equivalents;
(v) Investments existing on the date hereof and
described on Schedule 4.01(s) hereto;
(vi) Investments by BMCA in Hedge Agreements to the
extent permitted under Section 5.02(s);
(vii) the purchase or other acquisition (a "PERMITTED
ACQUISITION") of all of the Equity Interests in, or all or
substantially all of the property and assets of, any Person
that, upon the consummation thereof, will be wholly owned
directly by BMCA or one or more of its wholly owned
Subsidiaries (including as a result of a merger or
consolidation); provided that, with respect to each purchase
or other acquisition made pursuant to this clause (vii):
(A) any such newly created or acquired
Subsidiary shall comply with the requirements of
Section 5.01(j);
(B) the lines of business of the Person to
be (or the property and assets of which are to be) so
purchased or otherwise acquired shall be (a)
substantially the same lines of business as, or (b)
lines of business complementary to, one or more of
the principal businesses of BMCA and its Subsidiaries
in the ordinary course;
(C) such purchase or other acquisition shall
not include or result in any 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 covenant 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
65
(E) BMCA shall have delivered to the
Administrative Agent, on behalf of the Lenders, at
least three Business Days prior to the date on which
any such purchase or other acquisition is to be
consummated, a certificate of a Responsible Officer,
in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the
requirements set forth in this clause (vii) have been
satisfied or will be satisfied on or prior to the
consummation of such Permitted Acquisition;
(viii) Investments in any "strategic alliance" joint
marketing arrangement, provided that such Investments do not
exceed $10,000,000 in the aggregate for any Fiscal Year;
(ix) (a) Investments consisting of Initial G-I
Holdings Letters of Credit or substitutions thereof (subject
to Section 5.02(g)) and (b) subject to Section 5.02(g),
Investments consisting of Future G-I Letters of Credit and
renewals thereof;
(x) So long as the provisions of Section 5.02(g) are
satisfied (determined as if such Investment were a payment,
dividend or distribution described in Section 5.02(g)),
Investments (other than Investments described in clause (ix)
above) in G-I Holdings and BMCA Holdings; and
(xi) the purchase of the remaining outstanding shares
of Elk pursuant to the Merger or otherwise.
(g) Restricted Payments. (i) Make or permit any of its
Subsidiaries to make, directly or indirectly, any Restricted Payment or
Restricted Investment, except that, so long as no Default or an Event
of Default shall have occurred and be continuing, BMCA may make, and
may permit any of its Subsidiaries to make, directly or indirectly, any
Restricted Payment or Restricted Investment so long as, at the time of
such Restricted Payment or Restricted Investment and immediately after
giving effect thereto, the aggregate amount of Restricted Payments made
since the Effective Date and the aggregate amount of Restricted
Investments made since the Effective 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
66
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, however, that, if the value of the non-cash
consideration or contribution is in excess of $50,000,000,
BMCA shall have received the written opinion of a nationally
recognized investment banking firm that the terms thereof,
from a financial point of view, are fair to the shareholders
of BMCA or such Subsidiary, in their capacity as such (the
determination as to the value of any non-cash consideration
referred to in this clause (B) to be made by such investment
banking firm), and such opinion shall have been delivered to
the Administrative Agent;
(C) with respect to Restricted Investments made by
any Loan Party after July 26, 2004, an amount equal to the net
reduction in such Restricted Investments in any Person
resulting from repayments of loans or advances, or other
transfers of assets, in each case to any Loan Party or from
the net cash proceeds from the sale or other disposition of
any such Restricted Investment (except, in each case, to the
extent any such payment or proceeds are included in the
calculation of Consolidated Net Income (Loss)), or from
designation of any Non-Recourse Subsidiary as a Loan Party,
not to exceed, in each case, the amount of Restricted
Investments previously made by the Loan Parties in such Person
or Non-Recourse Subsidiary after July 26, 2004;
(D) 100% of the net cash proceeds received by BMCA
from the exercise of options or warrants on BMCA's Equity
Interests (other than Redeemable Equity Interests) since July
26, 2004;
(E) 100% of the net cash proceeds received by BMCA
from the conversion into Equity Interests (other than
Redeemable Equity Interests) of convertible Debt or
convertible Preferred Interests issued and sold (other than to
a Subsidiary of BMCA) since July 26, 2004; and
(F) $60,000,000.
The designation by BMCA or any of its Subsidiaries of
a Subsidiary as a Non-Recourse Subsidiary shall be deemed to
be the making of a Restricted Investment by BMCA in an amount
equal to the outstanding Investments made by BMCA and its
Subsidiaries in such Person being designated a Non-Recourse
Subsidiary at the time of such designation.
(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, however, that at such date of
67
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, however, 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; and provided further that if
any portion of the aggregate amount of Restricted Payments
permitted to be made pursuant to this clause (d) shall not be
made in a Fiscal Year, Restricted Payments pursuant to this
clause (d) in amount not to exceed to such unused portion may
be made in the subsequent Fiscal Year in addition to all other
Restricted Payments permitted to be made pursuant to this
clause (d) in that Fiscal Year.
Restricted Payments or Restricted Investments made
pursuant to clause (b), (c) or (d) of this clause (ii) shall
not be deducted in determining the amount of Restricted
Payments or Restricted Investments made or then outstanding
under Section 5.02(g)(i).
For purposes of determining compliance with this
Section 5.02(g), in the event that a Restricted Payment meets
the criteria of more than one of the types of Restricted
Payments described above, BMCA, in its sole discretion, may
order and classify such Restricted Payment in any manner in
compliance with this Section 5.02(g).
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its certificate of incorporation or bylaws or
other constitutive documents other than amendments that could not be reasonably
expected to have a Material Adverse Effect.
(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, Increase in Term Loan
Facility. Prepay, redeem, purchase, defease, exchange or otherwise satisfy prior
to the scheduled maturity thereof in any manner, or make any payment in
68
violation of any subordination terms of, any Debt (each, a "PREPAYMENT"), except
(i) prepayment of advances under the Revolving Credit Facility in accordance
with the terms thereof, (ii) the prepayment of the Loans in accordance with the
terms of this Agreement, (iii) prepayments of the Debt under the Term Loan
Facility in accordance with the terms thereof, (iv) after the consummation of
the Merger, prepayment of any Debt of Elk or any of its Subsidiaries, (v)
regularly scheduled or required repayments or redemptions of Surviving Debt;
provided, however, that prepayments of Debt to G-1 Holdings or BMCA Holdings are
subject to the provisions of subclause (vii) below, (vi) prepayment of the
respective Debt with proceeds of a refinancing of such Debt permitted under
Section 5.02(b) and (vii) so long as, in each case, both at the time of such
payment and after giving pro forma effect thereto, no Default or Event of
Default shall have occurred and be continuing, prepayment of Debt owing to G-I
Holdings or BMCA Holdings in an aggregate maximum principal amount of
$50,000,000; or, if the Loan Parties, the Administrative Agent or the Lenders
will be materially and adversely affected thereby, amend, modify or change in
any material manner any term or condition of any Surviving Debt or Subordinated
Debt, or permit any of its Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to BMCA or any other Loan Party
(k) Amendment, Etc., of the Tax Agreement. Except to the
extent such action could not reasonably be expected to result in a Material
Adverse Effect, cancel or terminate the Tax Agreement or consent to or accept
any cancellation or termination thereof, amend, modify or change in any manner
any term or condition of any the Tax Agreement or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term or
condition of the Tax Agreement, agree in any manner to any other amendment,
modification or change of any term or condition of the Tax Agreement or take any
other action in connection with the Tax Agreement that would impair the value of
the interest or rights of any Loan Party thereunder or that would impair the
rights or interests of any Agent or any Lender, or permit any of its
Subsidiaries to do any of the foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any of
its property or assets except (i) in favor of the Secured Parties or (ii) in
connection with (A) any Surviving Debt, (B) the Revolving Credit Facility, (C)
the Term Loan Facility, (D) 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 (E) 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.
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(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 Term Loan
Facility and (iv) any agreement or instrument evidencing Surviving Debt.
(r) Amendment, Etc., of Material Contracts. Except to the
extent such action could not reasonably be expected to result in a Material
Adverse Effect, cancel or terminate any Material Contract or consent to or
accept any cancellation or termination thereof, amend or otherwise modify any
Material Contract or give any consent, waiver or approval thereunder, waive any
default under or breach of any Material Contract, agree in any manner to any
other amendment, modification or change of any term or condition of any Material
Contract or take any other action in connection with any Material Contract that
would impair the value of the interest or rights of any Loan Party thereunder or
that would impair the interest or rights of any Agent or any Lender, or permit
any of its Subsidiaries to do any of the foregoing.
(s) Hedge Agreements. Become a party to any Hedge Agreements
other than non-speculative Hedge Agreements entered into in the ordinary course
of business and consistent with prudent business practice to hedge against
fluctuations in interest rates, commodity prices and foreign exchange rates.
SECTION 5.03. Reporting Requirements. So long as any Loan or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, BMCA will furnish to the Agents and the Lenders; provided, however, that
the financial statements required to be delivered by BMCA pursuant to clauses
(b) and (c) below and the reports and statements required to be delivered by
BMCA pursuant to clause (g) below shall be deemed to have been delivered on the
date when such reports containing such financial statements or other materials
are posted on the SEC's website on the internet at "xxx.xxx.xxx"; 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:
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(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, however, that in the
event of any change in generally accepted accounting principles used in
the preparation of such financial statements, BMCA shall also provide,
if necessary for the determination of any of (w), (x), (y) or (z)
above, a statement of reconciliation conforming such financial
statements to GAAP and (ii) a certificate of a Responsible Financial
Officer of BMCA stating that no Event of Default has occurred and is
continuing or, if an Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action that BMCA has taken
and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any
event within 50 days after the end of each of the first three quarters
of each Fiscal Year (i) so long as BMCA is a reporting company under
the Securities Act of 1934, as amended (a "Reporting Company"), a copy
of BMCA's Form 10-Q filed with the Securities and Exchange Commission
for each such fiscal quarter and (ii) if BMCA is not a Reporting
Company at such time, then BMCA shall provide to the Administrative
Agent the unaudited Consolidated balance sheet of BMCA and its
Subsidiaries at the end of such quarter and the related unaudited
Consolidated statements of income and of cash flows for such quarter
and the portion of the Fiscal Year through end of such fiscal quarter,
setting forth in each case in comparative form the figures as of the
end of and for the corresponding period in the previous Fiscal Year, in
each case duly certified (subject to normal year-end audit adjustments)
by a Responsible Financial Officer of BMCA as having been prepared in
accordance with GAAP, together with (1) a certificate of said officer
stating that no Event of Default has occurred and is continuing or, if
an Event of Default has occurred and is continuing, a statement as to
the nature thereof and the action that BMCA has taken and proposes to
take with respect thereto, and (2) a schedule to such certificate in
form reasonably satisfactory to the Administrative Agent setting forth
(x) the Leverage Ratio as of the last day of such fiscal quarter, (y)
the Interest Coverage Ratio for the four fiscal quarters of BMCA ending
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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, however, that in the event of any change in
generally accepted accounting principles used in the preparation of
such financial statements, BMCA shall also provide, if necessary for
the determination of any of (x), (y) or (z) above, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Business Plans and Annual Forecasts. As soon as available
and in any event not later than 90 days after the end of each Fiscal
Year, an annual business plan and forecasts prepared by management of
BMCA, in form satisfactory to the Administrative Agent, of balance
sheets, income statements and cash flow statements and projected
borrowing base availability on a monthly basis for the Fiscal Year
immediately following such Fiscal Year, together with narratives
outlining the material operating, investing and financing assumptions
incorporated in such forecasts.
(e) Tax and Asbestos Litigation Reports. Promptly upon the
occurrence of a material event in connection with (i) any tax
proceeding involving, or any Federal income tax liability, contingent
or actual, of BMCA, any Loan Party, or any other member of the G-I
Holdings Tax Group, in connection with or arising out of the Rhone
Poulenc Transactions and (ii) asbestos litigation involving BMCA or any
of its Subsidiaries, provide a summary in form and substance reasonably
satisfactory to the Administrative Agent of such event.
(f) Litigation. Promptly after BMCA becomes aware of the
commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any Governmental Authority affecting
any Loan Party or any of its Subsidiaries of the type described in
Section 4.01(f), and promptly after the occurrence thereof, notice of
any material adverse change in the status or the financial effect on
any Loan Party or any of its Subsidiaries of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders and are publicly available, and copies of all regular,
periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.
(h) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lenders pursuant to any other
clause of this Section 5.03.
(i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly
and in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Chief Financial Officer of BMCA describing
such ERISA Event and the action, if any, that such Loan Party or such
72
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 Covenant. So long as any Loan or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
BMCA shall 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 6.25 to 1
Third Fiscal Quarter in Fiscal Year 2008 6.25 to 1
Fourth Fiscal Quarter in Fiscal Year 2008 5.75 to 1
First Fiscal Quarter in Fiscal Year 2009 5.50 to 1
Second Fiscal Quarter in Fiscal Year 2009 5.25 to 1
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Third Fiscal Quarter in Fiscal Year 2009 5.00 to 1
Fourth Fiscal Quarter in Fiscal Year 2009 4.75 to 1
First Fiscal Quarter in Fiscal Year 2010 4.50 to 1
Second Fiscal Quarter in Fiscal Year 2010 4.50 to 1
Third Fiscal Quarter in Fiscal Year 2010 and each 4.25 to 1
Fiscal Quarter thereafter
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any
Loan when the same shall become due and payable or (ii) any Borrower
shall fail to pay any interest on any Loan, or any Loan Party shall
fail to make any other payment under any Loan Document when due and
payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) any Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.12, 5.01(e), (f), (i) or
(j), 5.02, 5.03(a), (b), (c), (d) or (i) or 5.04; or
(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) (i) 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
and Debt under the Term Loan Facility), 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
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(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
(ii) the Debt under the Term Loan Facility shall be
declared due and payable prior to the stated maturity thereof;
or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including the entry of an order
for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of
its property) shall occur; or any Loan Party or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
(g) any judgments or orders (other than in respect of the
alleged Federal income tax liabilities of BMCA relating to or arising
out of the Rhone Poulenc Transactions or relating to the alleged
asbestos liabilities of BMCA), either individually or in the aggregate,
for the payment of money in excess of $37,500,000 shall be rendered
against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 15
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not
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
75
Lenders shall not have determined that there shall not exist, because
of such action, a reasonable likelihood that one or more of the Loan
Parties will pay, satisfy, or receive demand for payment of any tax
liabilities relating to or arising out of the Rhone Poulenc
Transactions, or (ii) any court renders a judgment or order against any
Loan Party related to or arising out of the alleged asbestos
liabilities of BMCA and as a result of which it is reasonable to
conclude that the Loan Parties might be liable for such asbestos
liabilities (it being understood and agreed that any adverse ruling by
the court in the DJ Action shall not, solely by itself, constitute an
Event of Default under this clause 6.01(h)(ii)); or
(i) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be
reasonably likely to have a Material Adverse Effect, and there shall be
any period of 20 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(j) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(k) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to or permitted by the terms of any Loan
Document) cease to create a valid and perfected first priority lien
subject to any Liens permitted by Section 5.02 on and security interest
in the Collateral purported to be covered thereby; or
(l) 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(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, 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
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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) and
(n)) $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 shall at the request, or
may with the consent, of the Required Lenders, by notice to BMCA, declare the
Loans, the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Loans, the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by BMCA;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any of the Borrowers under the Federal Bankruptcy
Code, the Loans, the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes each Agent to enter into such of the Loan Documents to
which it is a party and to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including
enforcement or collection of the Notes), no Agent shall be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Lenders, and such instructions
shall be binding upon all Lenders and all holders of Notes; provided, however,
that no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
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Agent agrees to give to each Lender prompt notice of each notice given to it by
BMCA pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any
of their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents; (d)
shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or the existence at any time of any
Default under the Loan Documents or to inspect the property (including the books
and records) of any Loan Party; (e) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; and (f)
shall incur no liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telecopy) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. DBNY and Affiliates. With respect to the Loan
owed to 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
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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 and without limiting the Borrowers' obligation to do so to the extent
required pursuant to Section 8.04) from and against such Lender's Pro Rata Share
of any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by such Agent under the Loan Documents (collectively, the
"INDEMNIFIED COSTS"); provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse each Agent promptly upon demand for its ratable
share of any costs and expenses (including fees and expenses of counsel) payable
by the Borrowers under Section 8.04, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrowers. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Lender or any other Person.
(b) The failure of any Lender to reimburse any Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lenders to such Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse such Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse such Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrowers and may
be removed at any time with or without cause by the Required Lenders; provided,
however, that any removal of the Administrative Agent will not be effective
until it has also been replaced as Collateral Agent and released from all of its
obligations in respect thereof (other than obligations resulting from its gross
negligence or willful misconduct). Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
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instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents (other than duties and
obligations resulting from its gross negligence or willful misconduct). If
within 45 days after written notice is given of the retiring Agent's resignation
or removal under this Section 7.06, no successor Agent shall have been appointed
and shall have accepted such appointment, then on such 45th day (a) the retiring
Agent's resignation or removal shall become effective, (b) the retiring Agent
shall thereupon be discharged from its duties and obligations under the Loan
Documents (other than duties and obligations resulting from its gross negligence
or willful misconduct) and (c) the Required Lenders shall thereafter perform all
duties of the retiring Agent under the Loan Documents until such time, if any,
as the Required Lenders appoint a successor Agent as provided above. After any
retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 7.07. Appointment of Supplemental Collateral Agents.
(a) It is the purpose of this Agreement and the other Loan Documents that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of litigation under
this Agreement or any of the other Loan Documents, and in particular in case of
the enforcement of any of the Loan Documents, or in case the Administrative
Agent deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the rights, powers or remedies granted herein or in any
of the other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Administrative
Agent appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agreement agent, collateral agent, collateral sub-agent
or collateral co-agent (any such additional individual or institution being
referred to herein individually as a "SUPPLEMENTAL COLLATERAL AGENT" and
collectively as "SUPPLEMENTAL COLLATERAL AGENTS").
(b) In the event that the Administrative Agent appoints a
Supplemental Collateral Agent with respect to any Collateral, (i) each and every
right, power, privilege or duty expressed or intended by this Agreement or any
of the other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents necessary to the exercise or performance thereof
by such Supplemental Collateral Agent shall run to and be enforceable by either
the Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Article and of Section 8.04 that refer to the Administrative
Agent shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to the Administrative Agent shall be deemed to be references
to the Administrative Agent and/or such Supplemental Collateral Agent, as the
context may require.
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(c) Should any instrument in writing from any Loan Party be
reasonably required by any Supplemental Collateral Agent so appointed by the
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, such Loan Party shall
execute, acknowledge and deliver any and all such instruments promptly upon
request by the Administrative Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by the Administrative Agent until the appointment of a new Supplemental
Collateral Agent.
SECTION 7.08. The Joint Lead Arrangers, 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.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. (a) No amendment or waiver of
any provision of this Agreement or any other Loan Document (other than the Loan
Documents referred to in clause (ii), (iii), (iv), (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, either Intercreditor Agreement, the Ratification, the Resignation and
Assignment and the Collateral Documents, consented to) by the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders, do any of the following at any time: (i) waive any of the conditions
specified in Section 3.01, (ii) amend the definition of "Required Lenders" or
"Pro Rata Share" or the second sentence of Section 2.09(a) or change the number
of Lenders or the percentage of the aggregate unpaid principal amount of the
Loans that shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Guarantor under Section
1 of the Guaranty issued by it or release such Guarantor or otherwise limit such
Guarantor's liability with respect to the Obligations owing to the Agents and
the Lenders (other than, in the case of any Guarantor, to the extent permitted
under the Guaranty), (iv) release all or substantially all of the Collateral in
any transaction or series of related transactions, except as contemplated by the
Loan Documents, (v) amend Section 2.11 or this Section 8.01, (vi) reduce or
forgive the principal of, or interest on, the Notes or other amounts payable
hereunder, (vii) postpone any date scheduled for any payment of principal of, or
interest on, the Notes pursuant to Section 2.02 or 2.05 or any date fixed for
payment of fees or other amounts payable hereunder or (viii) limit the liability
of any Loan Party under any of the Loan Documents; and provided, further, that
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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 the Borrowers
referred to below or (ii) such Non-Consenting Lender consenting to such
amendment, modification or waiver within those five days) the Borrowers may,
with the Borrowers being responsible for the payment of any assignment fee, upon
five Business Days' prior written notice to such Lender and the Administrative
Agent, elect to cause such Lender to assign its Loans in full to one or more
Persons selected by the Borrowers so long as (a) each such Person satisfies the
criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, (b) such Lender receives payment in full in cash of the
outstanding principal amount of the Loan owed to it and all accrued and unpaid
interest thereon and all other amounts due and payable to such Lender as of the
date of such assignment (including amounts owing pursuant to Sections 2.08 or
2.10 and 8.04) and (c) each such Lender assignee agrees to accept such
assignment and to assume all obligations of such Lender hereunder in accordance
with Section 8.07.
SECTION 8.02. Notices, Etc. (a) Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed certified or registered mail, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (b) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to any Borrower, any Agent, to the address, facsimile
number, electronic mail address or telephone number specified for such
Person on Schedule 8.02 or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a written notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to BMCA or the Administrative Agent.
Notices sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices sent by facsimile shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall
be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall, unless the Administrative Agent
otherwise prescribes, be deemed to have been given (i) in the case of notices
and other communications sent to an email address, upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return email or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
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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 the Borrowers may, in their discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
(c) Loan Documents may be transmitted and/or signed by
facsimile. The effectiveness of any such documents and signatures shall, subject
to applicable law, have the same force and effect as manually-signed originals
and shall be binding on all Loan Parties, the Agents, and the Lenders. The
Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(d) Each Agent and the Lenders shall each be entitled to rely
and act upon any notices believed by it in good faith to have been given by or
on behalf of the Borrowers even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrowers, jointly and
severally, agree to indemnify each Agent and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice believed by the respective such Person in good faith to have been given
by or on behalf of any Borrower or any other Loan Party. All telephonic notices
to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording. In addition, the Borrowers hereby waive the right to dispute the
Administrative Agent's record of the terms of such telephonic notice of a
borrowing or prepayment of Loans (absent manifest error).
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrowers agree,
jointly and severally, to pay on demand (i) all reasonable out of pocket costs
and expenses of the Administrative Agent in connection with the preparation,
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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).
(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,
trustees, advisors, attorneys and representatives (each, an "INDEMNIFIED PARTY")
from and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including fees and expenses of counsel), joint or
several, that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) this Agreement, the actual
or proposed use of the proceeds of the Loans, the Transaction Documents or any
of the transactions contemplated thereby, including any acquisition or proposed
acquisition (including the transactions contemplated hereunder) by the Borrowers
or any of their Subsidiaries or Affiliates of all or any portion of the Equity
Interests in or Debt securities or substantially all of the assets of any Person
or (ii) the actual or alleged presence of Hazardous Materials on any property of
any Loan Party or any of its Subsidiaries or any Environmental Action relating
in any way to any Loan Party or any of its Subsidiaries, except to the extent
such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 8.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Loan Party,
its directors, shareholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereunder are consummated except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. The
Borrowers also agree not to assert any claim against any Agent, any Lender or
any of their Affiliates, or any of their respective officers, directors,
employees, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
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to this Agreement, the actual or proposed use of the proceeds of the Loans, the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(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 Eurodollar
Rate Advance, as a result of a payment or Conversion pursuant to Section 2.03,
2.04 or 2.07, acceleration of the maturity of the Loans pursuant to Section 6.01
or for any other reason, or if the Borrowers fail to make any payment or
prepayment of a Loan for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.03 or 6.01 or
otherwise, the Borrowers, jointly and severally, agree, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), to pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or 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 Loan.
(e) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including fees
and expenses of counsel and indemnities, such amount may be paid on behalf of
such Loan Party by the Administrative Agent or any Lender, in its sole
discretion, exercised reasonably.
(f) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.08 and 2.10 and this
Section 8.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Loans, due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set-off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender or such
Affiliate to or for the credit or the account of any Borrower against any and
all of the Obligations of any Borrower now or hereafter existing under the Loan
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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 their rights hereunder or any interest herein without the prior
written consent of each of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may, upon at least five Business Days' notice to such Lender and the
Administrative Agent, assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of the Loans owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Loans being assigned to such Eligible
Assignee pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $1,000,000 (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, another Lender or an Approved Fund, 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, the Borrowers (in each case, which consents
shall not be unreasonably withheld or delayed) 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; provided, however, that only one such fee shall be
payable in connection with concurrent assignments by a Lender to two or more
Approved Funds.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.08,
2.10 and 8.04 to the extent any claim thereunder relates to an event arising
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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 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 principal amount of the Loans to, each Lender from
time to time (the "REGISTER"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Agents and the Lenders shall treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrowers or any Agent or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Notwithstanding anything to the contrary contained in
clause (b) above, the Loans (including the Notes evidencing such Loans) are
registered obligations and the right, title, and interest of the Lenders and
their assignees in and to such Loans shall be transferable only upon notation of
such transfer in the Register. A Note shall only evidence the Lender's or an
assignee's right title and interest in and to the related Loan, and in no event
is any such Note to be considered a bearer instrument or obligation. This
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Section 8.07 shall be construed so that the Loans are at all times maintained in
"registered form" within the meaning of sections 163(f), 871(h)(2) and 881(c)(2)
of the Internal Revenue Code and any related regulations (or any successor
provisions of the Internal Revenue Code or such regulations). 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 the
Borrowers 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 a Note to
the order of such Eligible Assignee in an amount equal to the Loan assumed by it
under this Agreement pursuant to such Assignment and Acceptance and, if any
assigning Lender has retained a Loan hereunder under this Agreement and has
requested a replacement Note, an amended and restated Note to the order of such
assigning Lender in an amount equal to the Loan retained by it hereunder. Such
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.
(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 the Loans owing to it and the Note or Notes (if any) held by it); provided,
however, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Borrowers, the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
requires the consent of all Lenders.
(h) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender in accordance with the terms of Section 8.09.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including the Loans owing to it and
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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,
without the consent of the Borrowers or the Administrative Agent, any Lender
that is a fund that invests in bank loans and similar extensions of credit may
create a security interest in all or any portion of the Loans owing to it and
the Note or Notes held by it to any creditor, including the trustee for holders
of obligations owed, or securities issued, by such fund as security for such
obligations or securities; provided, however, that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 8.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein,
any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers (an "SPC") the option to provide all or
any part of any Loan that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement; provided, however, that (i) nothing herein
shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, (ii) no SPC shall be entitled to the benefits of
Sections 2.08 and 2.10 (or any other increased costs protection provision) and
(iii) the Granting Bank shall for all purposes, including the approval of any
amendment or waiver of any provision of any Loan Document, remain the Lender of
record hereunder. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrowers and the Administrative
Agent and with the payment of a processing fee of $500 and without paying any
processing fee therefor, assign all or any portion of its interest in any Loan
to the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of a Loan to any rating agency, commercial
paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC. This subsection (k) may not be amended without the
prior written consent of each Granting Lender, all or any part of whose Loans
are being funded by the SPC at the time of such amendment.
SECTION 8.08. Execution in Counterparts; Integration. 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
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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. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
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, trustees, 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, and to any SPC, any trustee thereof and any legal and financial advisors,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner (including the National Association of
Insurance Commissioners or any similar organization or quasi-regulatory
authority) regulating such Lender, (d) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender, (e) in connection with any
litigation or proceeding to which such Agent or such Lender or any of its
Affiliates may be a party to the extent required or requested to so disclose by
the applicable Governmental Authority or (f) in connection with the exercise of
any right or remedy under this Agreement or any other Loan Document.
Notwithstanding anything herein to the contrary, any Agent or Lender may
disclose to any and all persons, without limitation of any kind, the U.S. tax
treatment and tax structure of the transactions as contemplated hereunder and
all materials of any kind (including opinions or other tax analyses) that are
provided to such Agent or Lender, relating to such U.S. tax treatment and tax
structure.
SECTION 8.10. Release or Subordination of Collateral/Release
of Guarantor. (a) Upon the sale, lease, transfer or other disposition or release
of any item of Collateral or the incurrence of Liens permitted under Section
5.02 (a)(iv) or 5.02(a)(v) (including as a result of the sale, in accordance
with the terms of the Loan Documents, of the Loan Party that owns such
Collateral and as a result of the designation by any Loan Party after the
Effective Date of any of its Subsidiaries as a Non-Recourse Subsidiary) in
accordance with the terms of the Loan Documents, the Administrative Agent will
authorize the Collateral Agent to release its Lien on and security interest in
such Collateral (and release the guaranty by a Loan Party, if applicable) or
subordinate its Lien in case of Liens permitted as referred to above, and, at
the Borrowers' expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents or release of such Loan Party from its obligation under the
Guaranty, or subordinate the Lien of the Collateral Agent on such item of
Collateral to such permitted Lien in accordance with the terms of the Loan
Documents.
(b) In addition to the release of any Collateral as
contemplated by the other subsection of this Section 8.10, the Lien of the
Collateral Agent (or its agents) in the Properties arising under the Mortgages
shall terminate on the date on which the Administrative Agent shall have
received notice as provided herein that the Obligations under the Term Loan
Facility (other than contingent obligations) shall (i) have become unsecured or
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(ii) have been paid in full with the proceeds of unsecured Debt and the
commitments, if any, of the Lenders under the Term Loan Facility shall have been
terminated, and in the case of (i) or (ii) the Liens securing such Obligations
shall have been released. As promptly as practicable thereafter, the Collateral
Agent (or its agents) will, at the Borrowers' expense, execute and deliver to
the Borrowers such documents as the Borrowers reasonably request to evidence the
termination of such security interests; provided, however, that such Liens shall
not terminate and the Collateral Agent (or its agents) shall not take such
actions if at the time thereof any Event of Default has occurred and is
continuing.
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.
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 Loans or
the actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
SECTION 8.14. Agreement to Comply With Court Order. Each of
the Lenders hereby accepts and agrees to abide by all of the terms of the order
(the "APPROVAL ORDER") as set forth in Exhibit F hereto entered by the
bankruptcy court on February 20, 2007 in connection with the G-I Holdings
bankruptcy proceedings and further agrees not to take any action (including
appearing in certain litigation proceedings specified in the Approval Order)
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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/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent and Collateral Agent
By /s/ Xxxxxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Director
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES, INC..
as a Joint Lead Arranger and a Joint Bank Manger
By /s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
BEAR XXXXXXX & CO. INC.,
as a Joint Lead Arranger and a Joint Book Manager
and as Syndication Agent
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Managing Director
X.X. XXXXXX SECURITIES INC.,
as a Joint Lead Arranger and a Joint Book Manager
and as Documentation Agent
By /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Director
LENDERS
DEUTSCHE BANK AG NEW YORK BRANCH,
By /s/ Xxxxxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxxxxx Xxxxxx
Title: Director
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BEAR XXXXXXX CORPORATE LENDING INC.
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
