So long as any Advance or
any other 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 not, at any time (provided, that until the
consummation of the Merger, compliance with respect to Elk and its Subsidiaries
with the
80
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
TERM LOAN FACILITY (AND THE OTHER OBLIGATIONS REFERRED TO THEREIN ENTITLED TO
SHARE IN THE COLLATERAL THEREFOR), THE BRIDGE LOAN FACILITY, THE EXISTING
INDENTURES AND THE SENIOR NOTES;
(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 CLOSING 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