MR. ZELL TO THE CLASS OF DIRECTORS
WHOSE TERMS EXPIRE THE FURTHEST FROM THE DATE OF THIS AGREEMENT AND TO USE ITS
REASONABLE BEST EFFORTS TO ENABLE MR. ZELL TO SERVE AS THE CHAIRMAN OF THE BOARD
UNTIL AT LEAST THE THIRD ANNIVERSARY OF THE DATE OF THIS AGREEMENT, IN EACH
CASE, IF HE IS WILLING AND ABLE TO SERVE IN SUCH CAPACITY.
SECTION 5.12
S-CORPORATION ELIGIBILITY.
GUARANTOR REPRESENTS,
WARRANTS AND COVENANTS THAT, AS OF THE DATE HEREOF AND AT ALL TIMES DURING THE
TERM OF THIS AGREEMENT, EACH OF THE SUCCESSORS-IN-INTEREST TO ANY MEMBERSHIP OR
OTHER INTEREST IN EGI-TRB IN THE EVENT OF GUARANTOR'S DEATH ARE AND WILL ALL BE
ELIGIBLE TO HOLD INTERESTS IN AN S-CORPORATION AND, IN THE AGGREGATE, WILL NOT
EXCEED TWENTY SUCH ELIGIBLE SUCCESSORS.
FOR PURPOSES OF THIS SECTION 5.12, ALL
ELIGIBLE SUCCESSORS TREATED AS A SINGLE SHAREHOLDER PURSUANT TO
SECTION 1361(C)(1) OF THE CODE SHALL BE TREATED AS A SINGLE ELIGIBLE SUCCESSOR.
ARTICLE VI
CONDITIONS TO THE FIRST CLOSING
SECTION 6.1
CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
FIRST CLOSING.
THE RESPECTIVE OBLIGATIONS OF EACH PARTY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THE FIRST CLOSING SHALL BE SUBJECT TO THE
FULFILLMENT (OR WAIVER BY ALL PARTIES) AT OR PRIOR TO THE FIRST CLOSING OF THE
FOLLOWING CONDITIONS:
16
(A)
NO RESTRAINING ORDER, INJUNCTION OR OTHER ORDER BY ANY COURT OR
OTHER TRIBUNAL OF COMPETENT JURISDICTION WHICH PROHIBITS THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THE FIRST CLOSING SHALL HAVE BEEN ENTERED AND SHALL
CONTINUE TO BE IN EFFECT.
(B)
ANY APPLICABLE WAITING PERIOD UNDER THE HSR ACT WITH RESPECT TO
THE ACQUISITION OF THE PURCHASED SHARES AND THE EXCHANGEABLE NOTE SHARES SHALL
HAVE EXPIRED OR BEEN EARLIER TERMINATED.
SECTION 6.2
CONDITIONS TO OBLIGATION OF THE COMPANY TO EFFECT THE
FIRST CLOSING.
THE OBLIGATION OF THE COMPANY TO EFFECT THE TRANSACTIONS
CONTEMPLATED BY THE FIRST CLOSING IS FURTHER SUBJECT TO THE FULFILLMENT OF THE
FOLLOWING CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF EGI-TRB AND GUARANTOR SET
FORTH HEREIN SHALL BE TRUE AND CORRECT BOTH WHEN MADE AND AT AND AS OF THE FIRST
CLOSING DATE, AS IF MADE AT AND AS OF SUCH TIME (EXCEPT TO THE EXTENT EXPRESSLY
MADE AS OF AN EARLIER DATE, IN WHICH CASE AS OF SUCH DATE), EXCEPT WHERE THE
FAILURE OF SUCH REPRESENTATIONS AND WARRANTIES TO BE SO TRUE AND CORRECT
(WITHOUT GIVING EFFECT TO ANY LIMITATION AS TO "MATERIALITY" OR "MATERIAL
ADVERSE EFFECT" QUALIFIERS SET FORTH THEREIN) WOULD NOT HAVE, INDIVIDUALLY OR IN
THE AGGREGATE, AN EGI-TRB MATERIAL ADVERSE EFFECT.
(B)
EGI-TRB AND GUARANTOR SHALL HAVE IN ALL MATERIAL RESPECTS
PERFORMED ALL OBLIGATIONS AND COMPLIED WITH ALL COVENANTS REQUIRED BY THIS
AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY THEM PRIOR TO THE FIRST CLOSING.
(C)
EGI-TRB SHALL HAVE DELIVERED TO THE COMPANY A CERTIFICATE, DATED
THE DATE OF THE FIRST CLOSING AND SIGNED BY ITS CHIEF EXECUTIVE OFFICER OR
ANOTHER SENIOR OFFICER, AND GUARANTOR SHALL HAVE DELIVERED TO THE COMPANY A
CERTIFICATE, DATED THE DATE