Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, BMCA will (provided, that until the consummation of
the Merger, compliance with respect to Elk and its Subsidiaries with the
provisions of this Section 5.01 will not be required, but BMCA will use
commercially reasonable efforts to cause Elk and its Subsidiaries to so comply
except for Section 5.01(j) compliance with which in respect of Elk and its
Subsidiaries will only be required from and after the consummation of the
Merger):
(A)
COMPLIANCE WITH LAWS, ETC. COMPLY, AND CAUSE EACH OF ITS
SUBSIDIARIES TO COMPLY, IN ALL MATERIAL RESPECTS, WITH ALL APPLICABLE LAWS,
RULES, REGULATIONS AND ORDERS, SUCH COMPLIANCE TO INCLUDE, WITHOUT LIMITATION,
COMPLIANCE WITH ERISA AND THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
CHAPTER OF THE ORGANIZED CRIME CONTROL ACT OF 1970.
(B)
PAYMENT OF TAXES, ETC. PAY AND DISCHARGE, AND CAUSE EACH OF ITS
SUBSIDIARIES TO PAY AND DISCHARGE, BEFORE THE SAME SHALL BECOME DELINQUENT,
(I) ALL FEDERAL INCOME AND OTHER MATERIAL TAXES, ASSESSMENTS AND GOVERNMENTAL
CHARGES OR LEVIES LAWFULLY IMPOSED UPON IT OR UPON ITS PROPERTY AND (II) ALL
LAWFUL CLAIMS THAT, IF UNPAID, MIGHT BY LAW BECOME A LIEN UPON ITS PROPERTY;
PROVIDED, HOWEVER, THAT NEITHER BMCA NOR ANY OF ITS 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
75
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