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
55
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