Document shall remain unpaid, or any
Lender shall have any Term Loan 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 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 REVOLVING CREDIT 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
70
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
LIENS PERMITTED BY THIS CLAUSE (IV) SHALL NOT EXCEED THE AMOUNT PERMITTED WITH
RESPECT THERETO UNDER SECTION 5.02(B)(III)(B) AT ANY TIME OUTSTANDING;