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EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of January 15, 1997
by and among American Health Properties, Inc. (together with its successors and
assigns, the "Company"), the banks listed on the signature pages hereto (the
"Lenders") and Wells Fargo Bank, N.A., as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent".
W I T N E S S E T H:
WHEREAS, the Company, the Lenders, Banque Paribas, as Co-Agent, First
Union National Bank of North Carolina, as Co-Agent, NationsBank of Texas, N.A.,
as Co-Agent and Wells Fargo Bank, N.A., as Agent, as arranger of the facilities
provided (in such capacity, the "Arranger"), and as the issuer of the Letters
of Credit (in such capacity, together with its successors in such capacity, the
"Facing Bank") entered into that certain Credit Agreement dated as of December
27, 1995 (as amended to date, the "Credit Agreement"), pursuant to which the
Lenders agreed to make available to the Company certain financial
accommodations; and
WHEREAS, the Company intends to issue and sell $100,000,000 of its
7.05% Notes due January 15, 2002 and $120,000,000 of its 7.50% Notes due
January 15, 2007 (collectively, the "1997 Senior Notes") pursuant to the terms
of that certain Indenture dated as of January 15, 1997 by and between the
Company and The Bank of New York (the "Indenture") and that certain Officer's
Certificate with respect to the 1997 Senior Notes dated as of January 15, 1997
executed by the Company (the "Officer's Certificate");
WHEREAS, following the application of proceeds of the 1997 Senior
Notes to all amounts due and payable under the Credit Agreement as provided in
Section 2.11(e)(i) thereof, the Company intends to prepay the Senior Notes to
the extent of the remaining net proceeds of the 1997 Senior Notes(the
"Prepayment"; the issuance of the 1997 Senior Notes together with the
prepayment are collectively referred to as the "Proposed Transaction");
WHEREAS, the Company has requested the parties hereto to amend certain
covenants in connection with the Proposed Transaction.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
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Section 1. Amendment to Credit Agreement.
(a) Addition of Definition. The Credit Agreement is hereby
amended by including in Section 1.1. the following definition in the
appropriate alphabetic order:
"'1997 Senior Notes' shall mean, collectively, each of (a)
$100,000,000 of the Company's 7.05% Notes due January 15, 2002 and (b)
$120,000,000 of the Company's 7.50% Notes due January 15, 2007."
(b) Amendment of Definition. The Credit Agreement is hereby
further amended by adding the following proviso at the end of subsection (ii)
of the definition of "Restricted Payment" in Section 1.1.:
"provided, however, that the prepayment of the Senior Notes with the
proceeds of the 1997 Senior Notes shall not be considered a
'Restricted Payment' hereunder"
(c) Amendment of Section 8.1. The Credit Agreement is hereby
further amended by inserting the phrase "or the 1997 Senior Notes" following
the phrase "the Senior Notes" in the second line of Section 8.1.(m).
(d) Amendment of Section 9.11. The Credit Agreement is hereby
further amended by adding the following proviso at the end of Section 9.11:
"provided, however, that the Company may prepay the Senior Notes with
the proceeds of the 1997 Senior Notes and terminate the agreements
evidencing such Senior Notes."
(g) Amendment of Section 9.14. The Credit Agreement is hereby
further amended by adding the following at the end of Section 9.14.:
"and the Company may prepay the Senior Notes with the proceeds of the
1997 Senior Notes."
Section 2. Consent and Agreement. Upon the Amendment Effective Date,
the Required Lenders hereby consent to the Proposed Transaction. The parties
hereto further agree that for purposes of complying with Section 9.3 of the
Credit Agreement, the covenants and events of default contained in the
Indenture and the Officer's Certificate setting forth the terms of the 1997
Senior Notes are not materially less favorable to the Company than those set
forth in the Credit Agreement or those agreements listed on Schedule 7.12 of
the Credit Agreement.
Section 3. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall be effective as of the date first written above (the "Amendment
Effective Date") after and subject to the conditions precedent that the Agent
has received each of
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the following, each to be in form and substance specified below or otherwise
satisfactory to the Agent:
(a) This Amendment duly executed by the Company, the Agent and the
Required Lenders;
(b) A Reaffirmation of Guaranty from the Guarantors (other than
AHP of New Orleans, Inc.), in substantially the form of Exhibit A attached
hereto (the "Reaffirmation");
(c) An opinion letter from Davis, Graham & Stubbs LLP, counsel to
the Company, in substantially the form of Exhibit B attached hereto;
(d) A Certificate of the Assistant Secretary of the Company
stating that the Company's articles of incorporation and bylaws, copies of
which were delivered in connection with the closing of the Credit Agreement,
remain in full force and effect and have not been amended or repealed;
(e) Certified copies (certified by the Assistant Secretary of the
Company) of all corporate action taken by the Company to authorize the
execution and delivery of this Amendment and the performance of the Credit
Agreement, as amended by this Amendment;
(f) Certificates of incumbency and specimen signatures with
respect to each of the officers of the Company who are authorized to execute
and deliver this Amendment;
(g) A certificate evidencing the good standing of the Company
issued as of a recent date by the Secretary of State of the State of Delaware;
(h) A certificate executed by the chief executive officer and
chief financial officer of the Company, stating that: (a) on such date, and
after giving effect to the transaction contemplated hereby, no Unmatured
Default or Event of Default has occurred and is continuing; (b) no material
adverse change in the financial condition or operations of the business of the
Company or any of its Subsidiaries or the projected cash flow of the Company
and its Subsidiaries has occurred; and (c) the representations and warranties
set forth in Sections 4 and 5 of the Amendment are true and correct in all
material respects on and as of such date with the same effect as though made on
and as of such date.
(i) A fully-executed copy of the the Indenture and the Officer's
Certificate, each with terms and conditions acceptable to the Agent and the
Required Lenders;
(j) Such other documents, agreements, opinions or evidences as the
Agent may reasonably request.
Section 4. Reaffirmation. The Company hereby reaffirms all
representations and warranties made by the Company in the Credit Agreement on
and as of the date hereof
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with the same force and effect as if such representations and warranties were
set forth in this Amendment in full, except that the Company makes no
representations or warranties with respect to AHP of New Orleans, Inc. which
has been dissolved.
Section 5. Representations. The Company further represents that:
(a) Authorization. The Company has the right and power, and has
taken all necessary action to authorize it, to execute and deliver this
Amendment and to perform the Credit Agreement, all as amended by this
Amendment, in accordance with their respective terms. This Amendment has been
duly executed and delivered by the duly authorized officers of the Company, and
each of this Amendment and the Credit Agreement, as amended by this Amendment,
is a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
generally the enforcement of creditors' rights.
(b) Compliance of Credit Documents with Laws, etc. The execution
and delivery of this Amendment, and the performance of the Credit Agreement, as
amended by this Amendment, in accordance with their respective terms and the
borrowings thereunder do not and will not, by the passage of time, the giving
of notice or otherwise: (i) require any approval from any Governmental Agency
or violate any applicable law relating to the Company; (ii) conflict with,
result in a breach of or constitute a default under the certificate of
incorporation or bylaws of the Company, or any indenture, agreement or other
instrument to which the Company is a party or by which it or any of its
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Company other than in favor of the Agent for the
benefit of the Lenders.
(c) No Default. No Unmatured Default or Event of Defaults exists
as of the date hereof and, after giving effect to this Amendment, no Unmatured
Default or Event of Default will occur or exist.
Section 6. References to the Credit Agreement and the Other Credit
Documents. Upon the occurrence of the Amendment Effective Date, each reference
to the Credit Agreement and any of the Credit Documents shall be deemed to be a
reference to the Credit Agreement as amended by this Amendment, and as each may
from time to time be further amended, supplemented, restated or otherwise
modified in the future by one or more other written amendments or supplemental
or modification agreements entered into pursuant to the applicable provisions
of the Credit Agreement. The term "Credit Documents" as defined in the Credit
Agreement shall include the Reaffirmation executed pursuant to Section 3
hereof.
Section 7. Expenses. Pursuant to Section 13.3(a) of the Credit
Agreement, the Company shall reimburse the Agent upon demand for all costs and
expenses (including attorneys' fees) incurred by the Agent in the preparation,
negotiation and execution of this
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Amendment and the other agreements and documents executed and delivered in
connection herewith.
Section 8. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF CALIFORNIA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AMENDMENT,
EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
APPLY.
Section 10. Effect. Except as expressly herein amended, the terms
and conditions of the Credit Agreement and the other Credit Documents shall
remain in full force and effect.
Section 11. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original and
shall be binding upon all parties, their successors and assigns when a
counterpart hereof has been executed by the Company, the Agent and the Required
Lenders.
Section 12. Definitions. All terms defined in the Credit Agreement
which are used herein shall have the meanings defined in the Credit Agreement,
unless specifically defined otherwise herein. The Credit Agreement shall be
further amended by incorporating all terms defined in this Amendment.
Section 13. No Novation. The parties do not intend that the
amendment to the Credit Agreement effected hereby constitutes a novation of the
indebtedness incurred under, and evidenced by, the Credit Agreement and the
other Credit Documents.
[Signatures begin on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Credit Agreement to be executed by their duly authorized officers
as of the date first above written.
AMERICAN HEALTH PROPERTIES, INC.
By:
------------------------------------------
Michael J. McGee
Senior Vice President and
Chief Financial Officer
WELLS FARGO BANK, N.A., as Agent and Lender
By:
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Name:
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Title:
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BANQUE PARIBAS, as Lender
By:
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Name:
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Title:
------------------------------------
By:
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Name:
-------------------------------------
Title:
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
By:
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Name:
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Title:
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NATIONSBANK OF TEXAS, N.A., as Lender
By:
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Name:
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Title:
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[Signatures continued on following page]
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[Continuation of signatures to the Second Amendment to Credit Agreement]
BHF-BANK AKTIENGESELLSCHAFT, as Lender
By:
------------------------------------------
Name:
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Title:
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By:
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Name:
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Title:
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BANQUE NATIONALE DE PARIS, as Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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COLORADO NATIONAL BANK, as Lender
By:
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Name:
-------------------------------------
Title:
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FLEET NATIONAL BANK, as Lender
By:
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Name:
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Title:
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[Signatures continued on following page]
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[Continuation of signatures to the Second Amendment to Credit Agreement]
KLEINWORT BENSON LIMITED, as Lender
By:
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Name:
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Title:
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AMSOUTH BANK OF ALABAMA, as Lender
By:
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Name:
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Title:
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EXHIBIT A
FORM OF REAFFIRMATION OF GUARANTY
THIS REAFFIRMATION OF GUARANTY dated as of January 15, 1997, executed
and delivered by each of AMIREIT (Frye), Inc., a North Carolina corporation,
AMIREIT (Kendall), Inc., a Florida corporation, AMIREIT Lucy Lee, Inc., a
Missouri corporation, AMIREIT (North Fulton), Inc., a Georgia corporation,
AMIREIT (Palm Beach Gardens), Inc., a Florida corporation, AHE of California,
Inc., a California corporation, AHE of Irvine, Inc., a California corporation,
American Health Properties of Arizona, Inc., an Arizona corporation, AHP of
Colorado, Inc., a Colorado corporation, AHP of Fayetteville, Inc., an Arkansas
corporation, AHP of Illinois, Inc., an Illinois corporation, AHP of Kansas,
Inc., a Kansas corporation, AHP of South Carolina, Inc., a South Carolina
corporation, AHP of Sunrise, Inc., a Florida corporation, AHP of Tarpon
Springs, Inc., a Florida corporation, AHP of Texas, Inc., a Texas corporation,
AHP of Washington, Inc., a Washington corporation, AHP of West Virginia, Inc.,
a West Virginia corporation, and AHP of Utah, Inc., a Utah corporation,
together with the Subsidiaries of the Company that may from time to time become
a party hereto (each a "Guarantor", and, collectively, the "Guarantors") in
favor of Wells Fargo Bank, N.A., in its capacity as agent (the "Agent"), and in
its capacity as the Facing Bank (the "Facing Bank"), in favor of Banque
Paribas, in its capacity as Co-Agent ("Banque Paribas"), in favor of First
Union National Bank of North Carolina in its capacity as Co-Agent ("First
Union"), in favor of NationsBank of Texas, N.A., in its capacity as Co-Agent
("NationsBank") and in favor of each Lender (present and future) under the
Credit Agreement (as hereinafter defined) (the Lenders, NationsBank, First
Union, Banque Paribas, the Facing Bank and the Agent being collectively
referred to herein as the "Guaranteed Parties").
WHEREAS, the Lenders, Banque Paribas, as Co-Agent, First Union
National Bank of North Carolina, as Co-Agent, NationsBank of Texas, N.A., as
Co-Agent, Wells Fargo Bank, N.A., as Arranger, Agent and Facing Bank and
American Health Properties, Inc. (the "Company") entered into that certain
Credit Agreement dated as of December 27, 1995 (as the same may be amended,
modified, supplemented, or extended from time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Guarantors
executed and delivered a Guaranty dated as of December 27, 1995 (the
"Guaranty") in favor of the Guaranteed Parties, providing for the undersigned's
guaranty of repayment of certain indebtedness and obligations of the Company
owing to the Guaranteed Parties;
WHEREAS, the Company and the Lender have entered into that certain
Second Amendment to Credit Agreement dated as of the date hereof (the
"Amendment"), to amend certain covenants and for other purposes;
WHEREAS, each Guarantor has reviewed the Amendment;
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WHEREAS, its is a condition precedent to the effectiveness of the
Amendment that the Guarantors execute and deliver this Reaffirmation of
Guaranty;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which each Guarantor hereby acknowledges, each Guarantor hereby
agrees as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its
continuing obligations to the Guaranteed Parties under the Guaranty and agrees
that neither the transactions contemplated by the Amendment, nor any future
agreements or arrangements whatsoever by the Guaranteed Parties with the
Company relating to the Credit Agreement, any of the other Credit Documents, or
any collateral thereunder, shall in any way affect the validity and
enforceability of the Guaranty or reduce, impair or discharge the obligations
of such Guarantor thereunder.
Section 2. References. Each Guarantor agrees that each reference to
the Credit Agreement or any of the other Credit Documents in any of the Credit
Documents shall be deemed to be a reference to the Credit Agreement or such
other Credit Document as amended by the Amendment, and as each may from time to
time be further amended, supplemented, restated or otherwise modified in the
future by one or more other written amendments or supplemental or modification
agreements entered into pursuant to the applicable provisions of the respective
Credit Document.
Section 3. Defined Terms. Terms not otherwise defined herein are
used herein as defined in the Credit Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, this Reaffirmation of Guaranty is signed, sealed
and delivered as of the date first written above.
AMIREIT (FRYE), INC.
AMIREIT (KENDALL), INC.
AMIREIT LUCY LEE, INC.
AMIREIT (NORTH FULTON ), INC.
AMIREIT (PALM BEACH GARDENS), INC.
AHE OF CALIFORNIA, INC.
AHE OF IRVINE, INC.
AMERICAN HEALTH PROPERTIES OF
ARIZONA, INC.
AHP OF COLORADO, INC.
AHP OF FAYETTEVILLE, INC.
AHP OF ILLINOIS, INC.
AHP OF KANSAS, INC.
AHP OF SOUTH CAROLINA, INC.
AHP OF SUNRISE, INC.
AHP OF TARPON SPRINGS, INC.
AHP OF TEXAS, INC.
AHP OF WASHINGTON, INC.
AHP OF WEST VIRGINIA, INC.
AHP OF UTAH, INC.
By:
---------------------------------
Michael J. McGee
Vice President
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EXHIBIT B
FORM OF OPINION OF COUNSEL
[Letterhead of Company's Counsel]
January 15, 1997
Wells Fargo Bank, N.A.
as Arranger, Agent and Facing Bank
420 Montgomery Street
San Francisco, California 94163
and
The financial institutions that have or may
become Lenders under the Credit
Agreement described below
RE: Second Amendment to Credit Agreement dated as of January 15,
1997, among American Health Properties, Inc., the financial
institutions that are signatories thereto and Wells Fargo
Bank, N.A., as Agent (the) "Amendment")
Ladies and Gentlemen:
We have acted as counsel to American Health Properties, Inc., a
Delaware corporation (the "Company"); AMIREIT (Frye), Inc., a North Carolina
corporation ("Frye"); AMIREIT (Kendall), Inc., a Florida corporation
("Kendall"); AMIREIT Lucy Lee, Inc., a Missouri corporation ("Lucy Lee");
AMIREIT (North Fulton), Inc., a Georgia corporation ("North Fulton"); AMIREIT
(Palm Beach Gardens), Inc., a Florida corporation (Palm Beach Gardens"); AHE of
California, Inc., a California corporation ("California"); AHE of Irvine, Inc.,
a California corporation ("Irvine"); American Health Properties of Arizona,
Inc., an Arizona corporation ("Arizona"); AHP of Colorado, Inc., a Colorado
corporation ("Colorado"), AHP of Fayetteville, an Arkansas corporation
('Fayetteville"); AHP of Illinois, Inc., an Illinois corporation ("Illinois");
AHP of Kansas, Inc., a Kansas corporation ("Kansas"); AHP of South Carolina,
Inc., a South Carolina corporation ("South Carolina"), AHP of Sunrise, Inc., a
Florida corporation ("Sunrise"); AHP of Tarpon Springs, Inc., a Florida
corporation ("Tarpon Springs"); AHP of Texas, Inc., a Texas corporation
("Texas"); AHP of Washington, Inc., a Washington corporation ("Washington"),
AHP of West Virginia, Inc., a West Virginia corporation ("West Virginia"); and
AHP of Utah, Inc., a Utah corporation ("Utah") (Frye, Kendall, Lucy Lee, North
Fulton, Palm Beach Gardens, California, Irvine, Arizona, Colorado,
Fayetteville,
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Illinois, Kansas, South Carolina, Sunrise, Tarpon Springs, Texas, Washington,
West Virginia and Utah are herein collectively referred to as the "Guarantors"
and the Guarantors and the Company are herein collectively referred to as the
"Credit Parties") in connection with the preparation, negotiation and delivery
of the above-captioned Amendment. This opinion is being delivered to you
pursuant to Section 3 of the Amendment.
In these capacities we have reviewed the following:
(a) the Credit Agreement;
(b) the Amendment;
(c) the Indenture;
(d) the Subsidiary Guaranty; and
(e) the Reaffirmation.
Items (b), (c) and (d) above are sometimes referred to herein as the "Amendment
Documents". Capitalized terms used in this opinion which are defined in the
Amendment have the meaning specified therein, unless otherwise defined herein.
In addition to the foregoing, we have reviewed the articles of
incorporation and bylaws of each of the Credit Parties and certain resolutions
of the boards of directors of each of the Credit Parties (collectively, the
"Organizational Documents"). We have examined originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, and other instruments, and made such other investigations of law and
fact, as we have deemed necessary or advisable for the purposes of rendering
this opinion. In our examination of documents, we assumed the genuineness of
all signatures on documents presented to us as originals (other than signatures
on behalf of the Credit Parties) and the conformity to originals of documents
presented to us as conformed or reproduced copies.
Based on the foregoing, and subject to the assumptions and
qualifications set forth below, we are of the opinion that:
1. Each of the Credit Parties (i) is an existing corporation and
in good standing under the laws of its jurisdiction of incorporation and (ii)
has the corporate power to execute, deliver and perform the Amendment Documents
to which it is a party, to own and use its assets, and to conduct its business
as presently conducted and as proposed to be conducted immediately following
the consummation of the transactions contemplated by the Amendment.
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2. Each of the Credit Parties has duly authorized the execution
and delivery of the Amendment Documents to which it is a party and all
performance by it thereunder. Each of the Credit Parties has duly executed and
delivered such Amendment Documents.
3. The execution, delivery and performance by each Credit Party
of each of the Reaffirmation, the Amendment, and the Credit Agreement as
amended by the Amendment to which it is a party (i) require no action or
consent by or in respect of, or filing with, any governmental body, agency or
official of the State of Colorado or of the federal government of the United
States and (ii) do not contravene, or constitute a default under, any provision
of applicable Colorado or United States federal law or regulation or of the
Organizational Documents or Material Contracts of such Credit Party, or, to the
best of our knowledge of any judgment, injunction, order, decree or other
instrument binding on such Credit Party or result in the creation or imposition
of any Lien on any asset of any Credit Party.
4. If the Amendment Documents and the Credit Documents were
governed by the laws of the State of Colorado, each of the Reaffirmation, the
Amendment and the Credit Agreement as amended by the Amendment would constitute
the legal, valid and binding obligation of each Credit Party a party thereto,
enforceable against such Credit Party in accordance with its terms.
5. In a properly presented and argued case, a Colorado state
court or a federal court sitting in Colorado as the forum state, applying
Colorado conflict of laws principles should enforce the choice of law
provisions in the Amendment Documents and the Credit Agreement as amended by
the Amendment.
6. Since December 27, 1995, the date of our prior legal opinion
rendered to the Agent and the Lenders in connection with the Credit Agreement,
no facts or circumstances concerning the Company have come to the attention of
attorneys in this firm who provide services to the Company, which would cause
us to believe that our opinion in Paragraph 10 of such prior opinion concerning
the real estate investment trust status of the Company under the Internal
Revenue Code of 1986, as amended (a) was inaccurate, or (b) would not be
accurate through the date of this opinion.
7. To the best of our knowledge, there does not exist any
litigation or governmental proceedings, pending or threatened against any of
the Credit Parties which purport to affect the legality, validity, binding
effect or enforceability of any of the Amendment Documents or Credit Documents
or which are likely to have a material adverse effect upon the financial
condition or operations of the Company or its Subsidiaries.
This opinion is subject to the following assumptions and
qualifications:
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(i) To the extent matters of fact are involved in the opinions set
forth above, we have, with your permission, relied upon
certificates of public officials or of officers of the
Company, copies of which are attached hereto.
(ii) The opinions rendered in Paragraph 4 above relating to the
enforceability of the Amendment Documents are subject to and
limited by the following: (i) applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
now or hereafter affecting the enforcement of creditors'
rights and generally and (ii) general equitable principles,
including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law) and (iii) public policies
which may affect the enforceability of certain remedies or
rights provided for in the Amendment Documents.
(iii) The opinions with respect to enforceability of the agreements
referred to herein and as to no conflict or breach of any
federal or Colorado statute are subject to fraudulent
conveyance laws.
The opinions set forth above are limited to the effect of the laws of
the State of Colorado, the federal laws of the United States of America and the
general corporation law of the State of Delaware. We express no opinion with
respect to the laws of any other jurisdiction.
This opinion is furnished to the Agent, the Facing Bank, the Co-Agents
and the Lenders. This opinion may not be relied on by any other person other
than the Arranger, the Agent, the Facing Bank, the Co-Agents, the Lenders, and
Alston & Bird, counsel to the Arranger, the Agent and the Facing Bank.
Sincerely yours,
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