HAVE
RECEIVED, ON BEHALF OF ITSELF, THE OTHER AGENTS AND THE LENDERS, A FAVORABLE
WRITTEN OPINION OF (I) HOLME ROBERTS & OWEN LLP, SPECIAL COUNSEL FOR THE LOAN
PARTIES, IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE
ARRANGER, AND (II) LOCAL, FOREIGN AND REGULATORY COUNSEL LISTED ON SCHEDULE
4.01(G) FOR THE LOAN PARTIES IN FORM AND SUBSTANCE, SATISFACTORY TO THE
ADMINISTRATIVE AGENT AND THE ARRANGER IN EACH CASE (A) DATED THE CLOSING DATE,
(B) ADDRESSED TO THE AGENTS AND THE LENDERS AND (C) COVERING SUCH MATTERS
RELATING TO THE LOAN DOCUMENTS AND THE TRANSACTIONS AS THE ADMINISTRATIVE AGENT
OR THE REQUIRED LENDERS SHALL REASONABLY REQUEST.
(H)
SOLVENCY CERTIFICATE AND OTHER REPORTS.
(I)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A SOLVENCY
CERTIFICATE (A "SOLVENCY CERTIFICATE") IN THE FORM OF EXHIBIT I, DATED THE
CLOSING DATE AND SIGNED BY THE CHIEF FINANCIAL OFFICER OF BORROWER.
(II)
THE LENDERS SHALL HAVE RECEIVED ALL OTHER REPORTS AND OPINIONS OF
APPRAISERS, CONSULTANTS OR OTHER ADVISORS RETAINED BY THEM TO REVIEW THE
BUSINESS, OPERATION OR CONDITION OF THE COMPANIES GIVING EFFECT TO THE
TRANSACTIONS, AND SHALL BE SATISFIED WITH SUCH REPORTS AND OPINIONS.
(I)
LEGAL REQUIREMENTS.
THE ADMINISTRATIVE AGENT AND THE LENDERS
SHALL BE SATISFIED THAT EACH COMPANY, AND THE TRANSACTIONS SHALL BE IN FULL
COMPLIANCE WITH ALL MATERIAL LEGAL REQUIREMENTS, INCLUDING REGULATIONS T, U AND
X OF THE BOARD, AND SHALL HAVE RECEIVED SATISFACTORY EVIDENCE OF SUCH COMPLIANCE
REASONABLY REQUESTED BY THEM.
(J)
CONSENTS.
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL BE
SATISFIED THAT ALL REQUISITE GOVERNMENTAL AUTHORITIES, EQUITYHOLDERS AND THIRD
PARTIES SHALL HAVE APPROVED, AUTHORIZED OR CONSENTED TO THE TRANSACTIONS, AND
THERE SHALL BE NO GOVERNMENTAL OR JUDICIAL ACTION, ACTUAL OR THREATENED IN
WRITING, THAT HAS OR WOULD HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A REASONABLE
LIKELIHOOD OF RESTRAINING, PREVENTING OR IMPOSING BURDENSOME CONDITIONS ON THE
TRANSACTIONS OR THE OTHER TRANSACTIONS CONTEMPLATED HEREBY.
(K)
LITIGATION.
THERE SHALL NOT EXIST ANY CLAIM, ACTION, SUIT,
INVESTIGATION, LITIGATION OR PROCEEDING PENDING OR THREATENED IN WRITING BY OR
BEFORE ANY COURT, OR ANY GOVERNMENTAL, ADMINISTRATIVE OR REGULATORY AGENCY OR
AUTHORITY, DOMESTIC OR FOREIGN, THAT, IN THE OPINION OF THE ADMINISTRATIVE AGENT
OR ANY LENDER (A)(I) THERE IS A REASONABLE LIKELIHOOD OF AN ADVERSE
DETERMINATION (OR THERE HAS BEEN AN ADVERSE DETERMINATION) AND (II) HAS HAD, OR
COULD REASONABLY BE EXPECTED TO RESULT IN, A
53
MATERIAL ADVERSE EFFECT, OR (B) MATERIALLY AND ADVERSELY IMPACTS THE ABILITY OF
ANY COMPANY TO PERFORM ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS OR THE
CONVERTIBLE SENIOR SECURED NOTE DOCUMENTS, OR THE ABILITY OF THE PARTIES TO
CONSUMMATE THE FINANCINGS CONTEMPLATED HEREBY.
(L)
USES.
THE USES OF THE CREDIT EXTENSIONS SHALL BE AS SET FORTH IN
SECTION 3.12.
(M)
FEES.
THE ARRANGER AND ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
ALL FEES AND OTHER AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE CLOSING DATE,
INCLUDING, TO THE EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET
EXPENSES (INCLUDING THE PREMIUMS, SURVEY CHARGES AND RECORDING TAXES AND FEES
AND THE LEGAL FEES AND