a party hereto, the notice shall be given as
set forth above to such successor or permitted assign of such party.
SECTION 13.
ASSIGNMENT.
THIS AGREEMENT
SHALL NOT BE ASSIGNED BY OPERATION OF LAW OR OTHERWISE, EXCEPT THAT EACH
INVESTOR MAY ASSIGN ALL OR ANY PORTION OF ITS RIGHTS UNDER THIS
41
AGREEMENT TO ANY OF ITS AFFILIATES UNDER COMMON CONTROL WITH SUCH INVESTOR'S
ULTIMATE PARENT, GENERAL PARTNER OR INVESTMENT ADVISOR; PROVIDED, THAT ANY SUCH
ASSIGNMENT SHALL NOT RELIEVE SUCH INVESTOR OF ANY LIABILITY OR OTHER OBLIGATION
UNDER THIS AGREEMENT; PROVIDED FURTHER, THAT NOTHING IN THIS SECTION 13 SHALL
INTERFERE WITH THE RIGHT OF SUCH INVESTOR TO ASSIGN ITS REGISTRATION RIGHTS IN
ACCORDANCE WITH SECTION 10(B).
THIS AGREEMENT WILL BE BINDING UPON, AND WILL
INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY, THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 14.
ENTIRE AGREEMENT.
THIS
AGREEMENT EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO IN RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN.
THIS AGREEMENT
SUPERSEDES ALL PRIOR WRITTEN AND PRIOR OR CONTEMPORANEOUS ORAL AGREEMENTS AND
UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT.
SECTION 15.
GOVERNING LAW.
THIS AGREEMENT
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF COLORADO, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES OR OTHER
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW.
SECTION 16.
SEVERABILITY.
IF ANY PROVISION
OF THIS AGREEMENT OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS
DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR
UNENFORCEABLE, THE REMAINING PROVISIONS HEREOF, OR THE APPLICATION OF SUCH
PROVISION TO PERSONS OR CIRCUMSTANCES OTHER THAN THOSE AS TO WHICH IT HAS BEEN
HELD INVALID OR UNENFORCEABLE, SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL
IN NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED THEREBY, SO LONG AS THE ECONOMIC
OR LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS NOT AFFECTED IN
ANY MANNER ADVERSE TO ANY PARTY.
UPON SUCH DETERMINATION, THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH IN AN EFFORT TO AGREE UPON A SUITABLE AND EQUITABLE
SUBSTITUTE PROVISION TO EFFECT THE ORIGINAL INTENT OF THE PARTIES.
SECTION 17.
EXPENSES.
WITH RESPECT TO ANY
INSTITUTIONAL INVESTOR, IN THE EVENT (I) THE CLOSING OCCURS, OR (II) THE
TRANSACTIONS CONTEMPLATED HEREOF WITH RESPECT TO SUCH INSTITUTIONAL INVESTOR ARE
NOT CONSUMMATED OTHER THAN DUE TO A BREACH BY SUCH INSTITUTIONAL INVESTOR OF ANY
OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR THE FAILURE OF SUCH INSTITUTIONAL
INVESTOR TO RECEIVE A NON-CONTROL DETERMINATION FROM THE FEDERAL RESERVE BOARD,
THE COMPANY WILL REIMBURSE SUCH INSTITUTIONAL INVESTOR FOR ITS REASONABLE
DOCUMENTED OUT-OF-POCKET EXPENSES INCURRED IN CONNECTION WITH ITS DUE DILIGENCE
AND THE PREPARATION AND NEGOTIATION OF THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREBY INCLUDING, BUT NOT LIMITED TO, THE REASONABLE FEES AND
EXPENSES OF COUNSEL INCURRED BY SUCH INSTITUTIONAL INVESTOR AND ITS AFFILIATES
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, THAT THE
COMPANY SHALL NOT BE OBLIGATED