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.
(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
57
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