Swing Line Borrowing, shall be subject
to the further conditions precedent that on the date of such Borrowing or
issuance (a) the following statements shall be true and the Administrative Agent
shall have received for the account of such Lender or the Issuing Bank a
certificate signed by a duly authorized officer of BMCA, dated the date of such
Borrowing or issuance, stating that (and each of the giving of the applicable
Notice of Borrowing, Notice of Swing Line Borrowing, or Notice of Issuance and
the acceptance by the Borrowers of the proceeds of such Borrowing or of such
Letter of Credit shall constitute a representation and warranty by the Borrowers
that both on the date of such notice and on the date of such Borrowing or
issuance 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 BORROWING OR
ISSUANCE 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 BORROWING OR
ISSUANCE, IN WHICH CASE AS OF SUCH SPECIFIC DATE, PROVIDED, THAT IN THE CASE OF
THE INITIAL BORROWING, THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION
4.01(G)(I)(B) SHALL NOT BE BROUGHT DOWN TO THE DATE THEREOF AND PROVIDED,
FURTHER, HOWEVER, THAT UNTIL THE MERGER THE REPRESENTATIONS AND WARRANTIES IN
THE MERGER AGREEMENT AND THE LOAN DOCUMENTS IN RESPECT OF ELK AND ITS
SUBSIDIARIES, FOR PURPOSES OF THIS SECTION 3.02(A) AND SECTION 4.01, (A) IN THE
CASE OF BORROWINGS THE PROCEEDS OF WHICH ARE USED TO PURCHASE COMPANY STOCK,
SHALL BE LIMITED TO (1) THOSE SET FORTH IN THE
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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
OF SUCH REPRESENTATIONS AND (2) THE SPECIFIED REPRESENTATIONS AND (B) IN THE
CASE OF BORROWINGS THE PROCEEDS OF WHICH ARE NOT USED TO PURCHASE COMPANY STOCK,
SHALL BE TRUE AND CORRECT TO THE BEST OF THE BORROWERS' KNOWLEDGE AND SHALL
EXCLUDE THE ACCURACY OF ANY SCHEDULE INSOFAR AS IT RELATES TO ELK AND ITS
SUBSIDIARIES. 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 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
BORROWINGS THE PROCEEDS OF WHICH ARE USED TO PURCHASE