(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
MERGER SHALL HAVE BEEN PAID TO THE EXTENT DUE.
SECTION 3.03. Conditions Precedent to Each Term Loan Borrowing.
The obligation
of each Lender to make a Term Loan Advance, shall be subject to the further
conditions precedent that on the date of such Term Loan Borrowing (a) 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 date of such Term Loan Borrowing stating
that (and each of the giving of the applicable Notice of Borrowing, and the
acceptance by the applicable Borrower of the proceeds of the Term Loan Advances
pursuant to such Term Loan Borrowing shall constitute a representation and
warranty by such Borrower that both on the date of such notice and on the
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date of making the Term Loan Advances pursuant to such Term Loan Borrowing such
statements are true):
(I)
THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN EACH LOAN DOCUMENT AND IN THE MERGER AGREEMENT ARE CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF SUCH DATE, BEFORE AND IMMEDIATELY AFTER GIVING
EFFECT TO SUCH TERM LOAN BORROWING AND TO THE APPLICATION OF THE PROCEEDS
THEREFROM, 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
OTHER THAN THE DATE OF SUCH TERM LOAN BORROWING, IN WHICH CASE AS OF SUCH
SPECIFIC DATE, PROVIDED, THAT IN THE CASE OF THE INITIAL TERM LOAN BORROWING,
THE REPRESENTATION AND WARRANTY CONTAINED IN THE SECTION 4.01(G)(I)(B) SHALL NOT
BE BROUGHT DOWN TO THE DATE THEREOF, AND PROVIDED, FURTHER, HOWEVER, UNTIL THE
MERGER, THE REPRESENTATIONS AND
WARRANTIES IN THE LOAN DOCUMENTS AND THE MERGER
AGREEMENT WITH RESPECT TO ELK AND ITS SUBSIDIARIES, FOR PURPOSES OF THIS
SECTION 3.03(A)(I) AND SECTION 4.01, SHALL BE LIMITED TO (X) THOSE SET FORTH IN
THE MERGER AGREEMENT AS ARE MATERIAL TO THE INTERESTS OF THE LENDERS, BUT ONLY
TO THE EXTENT THAT BMCA ACQUISITION OR BMCA ACQUISITION SUB HAS THE RIGHT TO
TERMINATE THEIR OBLIGATIONS UNDER THE MERGER AGREEMENT AS A RESULT OF A BREACH
IN SUCH REPRESENTATIONS AND (Y) THE SPECIFIED REPRESENTATIONS.
FOR PURPOSES
HEREOF, "SPECIFIED REPRESENTATIONS" MEANS THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN THE MERGER AGREEMENT AS TO THE CORPORATE POWER AND AUTHORITY OF ELK AND
ITS SUBSIDIARIES AND THE EXECUTION, DELIVERY AND ENFORCEABILITY BY ELK AND ITS
SUBSIDIARIES OF THE MERGER AGREEMENT AND DOCUMENTS RELATED THERETO;
(II)
NO DEFAULT HAS OCCURRED AND IS CONTINUING,
OR WOULD RESULT FROM SUCH TERM LOAN BORROWING OR FROM THE APPLICATION OF THE
PROCEEDS THEREFROM (EXCEPT WITH RESPECT TO A BREACH OF REPRESENTATIONS THAT ARE
NOT CONDITIONS TO FUNDING OF ANY TERM LOAN BORROWINGS); AND
(B)
THE ADMINISTRATIVE AGENT SHALL BE IN ITS
REASONABLE JUDGMENT SATISFIED THAT (I) NO ACTION ADVERSE