OBLIGATIONS, OR
(Y) ANY RIGHT OF GUARANTOR TO RECEIVE NOTICE UNDER THE MERGER AGREEMENT, THIS
AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
THE OBLIGATIONS SHALL BE
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE MERGER AGREEMENT, THIS
AGREEMENT OR ANY OF THE OTHER EGI-TRB TRANSACTION DOCUMENTS.
WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, (A) IF AN OBLIGATION IS COMPROMISED IN
ACCORDANCE WITH THE PROVISIONS OF THE MERGER
24
Agreement, this Agreement or any of the other EGI-TRB Transaction Documents,
such Obligation shall be compromised for purposes of this Guarantee, and (B) if
EGI-TRB is entitled to assert a defense, counterclaim or right of setoff to an
Obligation in accordance with the provisions of the Merger Agreement, this
Agreement or any of the other EGI-TRB Transaction Documents, Guarantor shall be
entitled to assert the same defense, counterclaim or right of offset under this
Guarantee.
(D)
UNTIL THE FINAL PAYMENT AND PERFORMANCE IN FULL OF ALL OF THE
OBLIGATIONS, GUARANTOR SHALL NOT EXERCISE AND HEREBY WAIVES ANY RIGHTS AGAINST
EGI-TRB ARISING AS A RESULT OF PAYMENT BY GUARANTOR HEREUNDER, BY WAY OF
SUBROGATION, REIMBURSEMENT, RESTITUTION, CONTRIBUTION OR OTHERWISE, AND WILL NOT
FILE OR ASSERT ANY CLAIM IN COMPETITION WITH THE COMPANY IN RESPECT OF ANY
PAYMENT HEREUNDER IN ANY BANKRUPTCY, INSOLVENCY OR REORGANIZATION CASE OR
PROCEEDINGS OF ANY NATURE INVOLVING EGI-TRB, NOR WILL GUARANTOR ASSERT ANY
SETOFF, RECOUPMENT OR COUNTERCLAIM TO ANY OF ITS OBLIGATIONS HEREUNDER IN
RESPECT OF ANY LIABILITY OF EGI-TRB TO GUARANTOR.
SECTION 8.19
TERMINATION.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS
AGREEMENT TO THE CONTRARY, THIS AGREEMENT MAY BE TERMINATED AND ABANDONED AT ANY
TIME PRIOR TO THE FIRST CLOSING OR THE SECOND CLOSING AS FOLLOWS:
(A)
BY THE MUTUAL WRITTEN CONSENT OF THE COMPANY AND EGI-TRB;
(B)
BY EITHER THE COMPANY OR EGI-TRB IF AN INJUNCTION, ORDER, DECREE
OR RULING SHALL HAVE BEEN ENTERED PERMANENTLY RESTRAINING, ENJOINING OR
OTHERWISE PROHIBITING THE CONSUMMATION OF THE MERGER OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND SUCH INJUNCTION, ORDER, DECREE OR RULING SHALL HAVE
BECOME FINAL AND NON-APPEALABLE;
(C)
BY EITHER THE COMPANY OR EGI-TRB UPON TERMINATION OF THE MERGER
AGREEMENT IN ACCORDANCE WITH ITS TERMS;
(D)
BY THE COMPANY, IF EGI-TRB OR GUARANTOR SHALL HAVE BREACHED OR
FAILED TO PERFORM IN ANY MATERIAL RESPECT ANY OF ITS REPRESENTATIONS,
WARRANTIES, COVENANTS OR OTHER AGREEMENTS CONTAINED IN THIS AGREEMENT, WHICH
BREACH OR FAILURE TO PERFORM (I)(A) WOULD RESULT IN A FAILURE OF A CONDITION SET
FORTH IN SECTION 6.1 OR 6.2 AND (B) CANNOT BE CURED BY THE FIRST CLOSING END
DATE (AS HEREINAFTER DEFINED), OR (II)(A) WOULD RESULT IN A FAILURE OF A
CONDITION SET FORTH IN SECTION 7.1 AND (B) CANNOT BE CURED BY THE END DATE,
PROVIDED THAT THE COMPANY SHALL HAVE GIVEN EGI-TRB WRITTEN NOTICE, DELIVERED AT
LEAST THIRTY (30) DAYS PRIOR TO SUCH TERMINATION, STATING THE COMPANY'S
INTENTION TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 8.19(D) AND THE
BASIS FOR SUCH TERMINATION;
(E)
BY THE EGI-TRB, IF THE COMPANY SHALL HAVE BREACHED OR FAILED TO
PERFORM IN