the meaning or interpretation of any provision hereof. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
Section 10.12.
Confidentiality.
(A)
EACH OF DURHAM, COCHRAN, THE BUYER AND FAIR
SHALL MAINTAIN AND, AS APPLICABLE, SHALL CAUSE EACH OF ITS EMPLOYEES, DIRECTORS,
OFFICERS, MEMBERS, PARTNERS, AGENTS AND AFFILIATES TO MAINTAIN THE
CONFIDENTIALITY OF THIS AGREEMENT AND ALL INFORMATION WITH RESPECT TO THE OTHER
PARTIES, INCLUDING ALL INFORMATION REGARDING THE BUSINESS OF THE BUYER AND THE
SELLER OBTAINED BY IT OR THEM IN CONNECTION WITH THE STRUCTURING, NEGOTIATING
AND EXECUTION OF THE TRANSACTIONS CONTEMPLATED HEREIN, EXCEPT THAT EACH SUCH
PARTY AND ITS EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, PARTNERS, AGENTS AND
AFFILIATES MAY (I) DISCLOSE SUCH INFORMATION TO ITS EXTERNAL ACCOUNTANTS,
ATTORNEYS, INVESTORS, POTENTIAL INVESTORS, CREDIT ENHANCERS AND THE AGENTS AND
ADVISORS OF SUCH PERSONS ("EXCEPTED PERSONS"); PROVIDED, HOWEVER, THAT EACH
EXCEPTED PERSON SHALL BE NOTIFIED OF THE CONFIDENTIALITY RESTRICTIONS HEREOF AND
SHALL, AS A CONDITION TO ANY SUCH DISCLOSURE, AGREE FOR THE BENEFIT OF THE
PARTIES HERETO THAT SUCH INFORMATION SHALL BE USED SOLELY IN CONNECTION WITH
SUCH EXCEPTED PERSON'S EVALUATION OF, OR RELATIONSHIP WITH, THE BUYER AND THE
SELLER AND THEIR AFFILIATES, (II) DISCLOSE THE EXISTENCE OF THIS AGREEMENT, BUT
NOT THE FINANCIAL TERMS THEREOF, (III) DISCLOSE SUCH INFORMATION AS IS REQUIRED
BY APPLICABLE LAW AND (IV) DISCLOSE THIS AGREEMENT AND SUCH INFORMATION IN ANY
SUIT, ACTION, PROCEEDING OR INVESTIGATION (WHETHER IN LAW OR IN EQUITY OR
PURSUANT TO ARBITRATION) INVOLVING ANY OF THE TRANSACTION DOCUMENTS FOR THE
PURPOSE OF DEFENDING ITSELF, REDUCING ITS LIABILITY, OR PROTECTING OR EXERCISING
ANY OF ITS CLAIMS, RIGHTS, REMEDIES, OR INTERESTS UNDER OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS. IT IS UNDERSTOOD THAT THE FINANCIAL TERMS THAT
MAY NOT BE DISCLOSED EXCEPT IN COMPLIANCE WITH THIS SECTION 10.12(A) INCLUDE,
WITHOUT LIMITATION, ALL FEES AND OTHER PRICING TERMS. IF ANY EXCEPTED PERSON
DISCLOSES ANY CONFIDENTIAL INFORMATION PURSUANT TO THIS SECTION 10.12(A), IT
SHALL PROVIDE PROMPT NOTICE THEREOF TO THE BUYER OR THE SELLER, AS APPROPRIATE.
(B)
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE FOREGOING SHALL NOT BE CONSTRUED TO PROHIBIT (I) DISCLOSURE OF ANY
AND ALL INFORMATION THAT IS OR BECOMES PUBLICLY KNOWN (OTHER THAN THROUGH THE
VIOLATION OF THIS AGREEMENT), (II) DISCLOSURE OF ANY AND ALL INFORMATION (A) IF
REQUIRED TO DO SO BY ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION, (B) TO ANY
GOVERNMENT AGENCY OR REGULATORY BODY HAVING OR CLAIMING AUTHORITY TO REGULATE OR
OVERSEE THE DISCLOSING ENTITY OR ITS AFFILIATES, OR (C) PURSUANT TO ANY
SUBPOENA, CIVIL INVESTIGATIVE DEMAND OR SIMILAR DEMAND OR REQUEST OF ANY COURT,
REGULATORY AUTHORITY, ARBITRATOR OR ARBITRATION TO WHICH THE DISCLOSING ENTITY
OR AN OFFICER, MEMBERS, PARTNERS, DIRECTOR, EMPLOYER, SHAREHOLDER OR AFFILIATE
OF ANY OF THE FOREGOING IS A PARTY (SO LONG AS THE DISCLOSING PERSON PROVIDES
PROMPT NOTICE THEREOF TO THE APPLICABLE PARTY WITH RESPECT TO WHICH SUCH
INFORMATION RELATES), OR (III) ANY OTHER DISCLOSURE AUTHORIZED BY THE