ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT
WOULD REQUIRE OR PERMIT APPLICATION OF THE LAWS OF ANY OTHER STATE OR
JURISDICTION.
9.10.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS EXCEPT THAT BORROWER MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE WRITTEN CONSENT OF ALL LENDERS.
9.11.
NO FIDUCIARY RELATIONSHIP.
NO PROVISION IN THE
LOAN DOCUMENTS AND NO COURSE OF DEALING BETWEEN THE PARTIES SHALL BE DEEMED TO
CREATE ANY FIDUCIARY DUTY OWING TO BORROWER OR ITS AFFILIATES BY ADMINISTRATIVE
AGENT OR ANY LENDER.
9.12.
CONSTRUCTION.
ADMINISTRATIVE AGENT, OR EACH LENDER
AND BORROWER ACKNOWLEDGE THAT EACH OF THEM HAS HAD THE BENEFIT OF LEGAL COUNSEL
OF ITS OWN CHOICE AND HAS BEEN AFFORDED AN OPPORTUNITY TO REVIEW THE LOAN
DOCUMENTS WITH ITS LEGAL COUNSEL AND THAT THE LOAN DOCUMENTS SHALL BE
CONSTRUCTED AS IF JOINTLY DRAFTED BY ADMINISTRATIVE AGENT, EACH LENDER AND
BORROWER.
9.13.
CONFIDENTIALITY.
ADMINISTRATIVE AGENT AND LENDERS
AGREE TO HOLD ANY CONFIDENTIAL INFORMATION THAT THEY MAY RECEIVE FROM BORROWER
OR ITS SUBSIDIARIES PURSUANT TO THIS AGREEMENT IN CONFIDENCE, EXCEPT FOR
DISCLOSURE: (I) ON A CONFIDENTIAL BASIS TO DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS OR LEGAL COUNSEL, INDEPENDENT PUBLIC ACCOUNTANTS AND OTHER PROFESSIONAL
ADVISORS OF ADMINISTRATIVE AGENT OR LENDERS OR THEIR RESPECTIVE AFFILIATES;
(II) TO REGULATORY OFFICIALS HAVING JURISDICTION OVER ADMINISTRATIVE AGENT OR
LENDERS OR THEIR AFFILIATES; (III) AS REQUIRED OR REQUESTED BY APPLICABLE LAW OR
LEGAL PROCESS; OR (IV) IN CONNECTION WITH ANY LEGAL PROCEEDING BETWEEN OR AMONG
ADMINISTRATIVE AGENT OR LENDERS OR THEIR AFFILIATES AND BORROWER AND/OR THEIR
RESPECTIVE SUBSIDIARIES OR AFFILIATES
56
(PROVIDED THAT, IN THE EVENT ADMINISTRATIVE AGENT OR LENDERS OR THEIR AFFILIATES
ARE SO REQUIRED TO DISCLOSE SUCH CONFIDENTIAL INFORMATION PURSUANT TO CLAUSES
(III) OR (IV) OF THIS SUBSECTION 9.13, ADMINISTRATIVE AGENT OR LENDERS SHALL
PROMPTLY NOTIFY BORROWER (UNLESS LEGALLY PROHIBITED FROM SO DOING), SO THAT
BORROWER OR ANY OF ITS SUBSIDIARIES MAY SEEK, AT ITS SOLE COST AND EXPENSE, A
PROTECTIVE ORDER OR OTHER APPROPRIATE REMEDY); AND (V) TO ANOTHER PERSON IN
CONNECTION WITH A DISPOSITION OR POSSIBLE DISPOSITION TO THAT PERSON OF ALL OR
PART OF THAT LENDER'S INTERESTS HEREUNDER OR A PARTICIPATION INTEREST IN ITS PRO
RATA SHARE, PROVIDED THAT SUCH DISCLOSURE IS MADE SUBJECT TO AN APPROPRIATE
CONFIDENTIALITY AGREEMENT ON TERMS SUBSTANTIALLY SIMILAR TO THIS SUBSECTION
9.13.
FOR PURPOSES OF THE FOREGOING, "CONFIDENTIAL INFORMATION" SHALL MEAN ALL
INFORMATION RESPECTING BORROWER OR ITS AFFILIATES OR SUBSIDIARIES, OTHER THAN
(A) INFORMATION PREVIOUSLY FILED BY BORROWER OR ITS AFFILIATES OR SUBSIDIARIES
WITH ANY GOVERNMENTAL AUTHORITY AND AVAILABLE TO THE PUBLIC OR OTHERWISE MADE
AVAILABLE BY BORROWER OR ANY OF ITS AFFILIATES TO THIRD PARTIES ON A
NON-CONFIDENTIAL BASIS, (B) INFORMATION PREVIOUSLY PUBLISHED IN ANY PUBLIC
MEDIUM FROM A SOURCE OTHER THAN, DIRECTLY OR INDIRECTLY, LENDERS IN VIOLATION OF
THIS SUBSECTION 9.13 AND (C) INFORMATION OBTAINED BY ADMINISTRATIVE AGENT OR
LENDERS FROM A SOURCE