FROM THE OTHER PARTY WITH RESPECT TO ANY ASSET DEVELOPMENT
DOCUMENT OR REVIEW DOCUMENT ALONG WITH ANY DUE DILIGENCE INVESTIGATION CONDUCTED
RELATING TO AN ACTIVE ASSET OR RESERVE ASSET AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR OTHERWISE, EXCEPT (I) AS REQUIRED
BY APPLICABLE SECURITIES OR OTHER LAWS OR STOCK EXCHANGE RULES OR ADMINISTRATIVE
PROCESS, AND (II) FOR INFORMATION THAT IS OR BECOMES GENERALLY AVAILABLE TO THE
PUBLIC OTHER THAN AS A RESULT OF A BREACH OF THIS SECTION 7.2 (SUCH INFORMATION,
SUBJECT TO CLAUSES (I) AND (II), "CONFIDENTIAL INFORMATION").
EXCEPT TO THE
15
EXTENT DEEMED NECESSARY OR ADVISABLE BY COUNSEL TO MAINTAIN COMPLIANCE WITH, OR
TO PREVENT VIOLATION OF, APPLICABLE SECURITIES OR OTHER LAWS OR STOCK EXCHANGE
RULES, EACH PARTY SHALL KEEP THE EXISTENCE OF AND THE PROVISIONS OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS CONFIDENTIAL AND SHALL DISCLOSE
THEIR CONTENTS ONLY (1) TO THOSE LENDERS, INVESTORS, PARTNERS, SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS WHO NEED TO KNOW SUCH INFORMATION FOR
PURPOSES OF ITS BUSINESSES AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND (2) TO
GOVERNMENTAL AUTHORITIES AND THIRD PARTIES FOR PURPOSES OF OBTAINING APPROVALS
FOR THE TRANSACTIONS CONTEMPLATED HEREBY.
ALL CONFIDENTIAL INFORMATION SHALL BE
TREATED AS INFORMATION COVERED BY THE CONFIDENTIALITY AGREEMENT, WHICH SHALL
REMAIN IN FULL FORCE AND EFFECT AND SHALL NOT BE MODIFIED OR SUPERSEDED IN ANY
WAY BY THIS AGREEMENT.
WITH RESPECT TO AN ACTIVE ASSET OR RESERVE ASSET FOR
WHICH SUMITOMO (OR ITS AFFILIATES) RECEIVES ASSET DEVELOPMENT DOCUMENTS OR
REVIEW DOCUMENTS BUT DOES NOT ACQUIRE AN INTEREST IN SUCH ASSET, SUMITOMO (OR
ITS AFFILIATES) (I) SHALL PROMPTLY RETURN TO APEX ALL COPIES OF SUCH ASSET
DEVELOPMENT DOCUMENTS OR REVIEW DOCUMENTS IN THE POSSESSION OR SUMITOMO (OR ITS
AFFILIATES), AND, UNLESS SPECIFICALLY PROHIBITED BY COURT ORDER, SUMITOMO (OR
ITS AFFILIATES) WILL DESTROY ALL COPIES OF ANY ANALYSES, COMPILATIONS, STUDIES
OR OTHER DOCUMENTS PREPARED BY IT OR FOR ITS USE CONTAINING OR REFLECTING ANY
SUCH ASSET DEVELOPMENT DOCUMENT OR REVIEW DOCUMENT, AND (II) SHALL BE PROHIBITED
FROM USING ANY INFORMATION IN SUCH ASSET DEVELOPMENT DOCUMENT OR REVIEW DOCUMENT
FOR ITS (OR ITS AFFILIATES) FUTURE BENEFIT WITHOUT THE PRIOR WRITTEN CONSENT OF
APEX.
SECTION 7.3
GOVERNING LAW; LANGUAGE.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY
CHOICE OR CONFLICTS OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
THIS AGREEMENT
HAS BEEN NEGOTIATED AND EXECUTED BY THE PARTIES IN ENGLISH.
IN THE EVENT ANY
TRANSLATION OF THIS AGREEMENT IS PREPARED FOR CONVENIENCE OR ANY OTHER PURPOSE,
THE PROVISIONS OF THE ENGLISH VERSION SHALL GOVERN.
IF ANY DOUBT,
MISUNDERSTANDING, OR DISPUTE ARISES IN THEIR INTERPRETATION, THE ENGLISH VERSION
SHALL GOVERN.
SECTION 7.4
DISPUTE RESOLUTION.
ANY CONTROVERSY, CLAIM, OR
DISPUTE BETWEEN THE PARTIES THAT