CONFIDENTIALITY AGREEMENT, DATED AS OF NOVEMBER 8, 2006, BETWEEN THE COMPANY AND
EQUITY GROUP INVESTMENTS, L.L.C., CONSTITUTE THE ENTIRE AGREEMENT, AND SUPERSEDE
ALL OTHER PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND ORAL, BETWEEN
THE PARTIES, OR ANY OF THEM, WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND IS NOT INTENDED TO AND SHALL NOT CONFER UPON ANY PERSON OTHER THAN
THE PARTIES HERETO ANY RIGHTS OR REMEDIES HEREUNDER.
SECTION 8.14
AMENDMENTS; WAIVERS.
ANY PROVISION OF THIS AGREEMENT MAY
BE AMENDED OR WAIVED IF, AND ONLY IF, SUCH AMENDMENT OR WAIVER IS IN WRITING AND
SIGNED, IN THE CASE OF AN AMENDMENT, BY THE COMPANY AND EGI-TRB, OR IN THE CASE
OF A WAIVER, BY THE PARTY AGAINST WHOM THE WAIVER IS TO BE EFFECTIVE.
NOTWITHSTANDING THE FOREGOING, NO FAILURE OR DELAY BY THE COMPANY OR EGI-TRB IN
EXERCISING ANY RIGHT HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE OF ANY
OTHER RIGHT HEREUNDER.
SECTION 8.15
HEADINGS.
HEADINGS OF THE ARTICLES AND SECTIONS OF THIS
AGREEMENT ARE FOR CONVENIENCE OF THE PARTIES ONLY AND SHALL BE GIVEN NO
SUBSTANTIVE OR INTERPRETIVE EFFECT WHATSOEVER.
SECTION 8.16
INTERPRETATION.
WHEN A REFERENCE IS MADE IN THIS
AGREEMENT TO AN ARTICLE OR SECTION, SUCH REFERENCE SHALL BE TO AN ARTICLE OR
SECTION OF THIS AGREEMENT UNLESS OTHERWISE INDICATED.
WHENEVER THE WORDS
"INCLUDE," "INCLUDES" OR "INCLUDING" ARE USED IN THIS AGREEMENT, THEY SHALL BE
DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION."
THE WORDS "HEREOF,"
"HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR IMPORT WHEN USED IN THIS AGREEMENT
SHALL REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF
THIS AGREEMENT.
ALL TERMS DEFINED IN THIS AGREEMENT SHALL HAVE THE DEFINED
MEANINGS WHEN USED IN ANY CERTIFICATE OR OTHER DOCUMENT MADE OR DELIVERED
PURSUANT THERETO UNLESS OTHERWISE DEFINED THEREIN.
THE DEFINITIONS CONTAINED IN
THIS AGREEMENT ARE APPLICABLE TO THE SINGULAR AS WELL AS THE PLURAL FORMS OF
SUCH TERMS AND TO THE MASCULINE AS WELL AS TO THE FEMININE AND NEUTER GENDERS OF
SUCH TERM.
ANY AGREEMENT, INSTRUMENT OR STATUTE DEFINED OR REFERRED TO HEREIN
OR IN ANY AGREEMENT OR INSTRUMENT THAT IS REFERRED TO HEREIN MEANS SUCH
AGREEMENT, INSTRUMENT OR STATUTE AS FROM TIME TO TIME AMENDED, MODIFIED OR
SUPPLEMENTED, INCLUDING (IN THE CASE OF AGREEMENTS OR INSTRUMENTS) BY WAIVER OR
CONSENT AND (IN THE CASE OF STATUTES) BY SUCCESSION OF COMPARABLE SUCCESSOR
STATUTES AND REFERENCES TO ALL ATTACHMENTS THERETO AND INSTRUMENTS INCORPORATED
THEREIN.
EACH OF THE PARTIES HAS PARTICIPATED IN THE DRAFTING AND NEGOTIATION
OF THIS AGREEMENT.
IF AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION
ARISES, THIS AGREEMENT MUST BE CONSTRUED AS IF IT IS DRAFTED BY ALL THE PARTIES,
AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY
PARTY BY VIRTUE OF AUTHORSHIP OF ANY OF THE PROVISIONS OF THIS AGREEMENT.
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SECTION 8.17
NO RECOURSE.
THIS AGREEMENT MAY ONLY BE ENFORCED
AGAINST, AND ANY CLAIMS OR