Common use of Pre Closing Matters Clause in Contracts

Pre Closing Matters. 2.2.1 The Sponsors hereby agree that the Board of Directors of the Buyer shall have the exclusive right to take any and all actions relating to the operation of the Buyer prior to the Closing, including, without limitation, any determination that the conditions to Closing specified in Sections 7.1 and 7.2 (the “Closing Conditions”) of the Merger Agreement are satisfied or waived, any requests of the Company for amendments or waivers of the Merger Agreement and compliance with the Buyer’s obligations under the Merger Agreement and Commitment Letters, and each Sponsor shall be deemed to have consented to any and all such actions. 2.2.2 The Sponsors hereby agree to do all things commercially reasonable, including, but not limited to, exercising their voting rights in the Buyer, and so far as they are able to, causing each of the directors appointed by them to the Buyer to exercise their powers to cause the Buyer and the Transitory Subsidiary to comply with the terms of the Transaction Agreements. Each of the Sponsors hereby agrees that it will promptly remove and replace any director designated by it who does not act in accordance with the provisions of this Section 2.2.2. 2.2.3 In the event that (a) the Buyer has determined that the Closing Conditions have been satisfied or waived and a Sponsor fails to fund (or provides written notice to the other Sponsor of its intent not to fund) its portion of the Merger Consideration in accordance with the terms of its Equity Commitment Letter, (b) a Sponsor is in default under the Guarantee or (c) the Buyer takes, or fails to take, any action (including the determination of satisfaction of the Closing Conditions) due to the failure of one director to approve, or not approve, such action pursuant to the process set forth in the succeeding provisions of this Section 2.2.3 (in such capacity, a “Non-Consenting Director”) that results in the Buyer, the Transitory Subsidiary or any Sponsor to be in breach of, or default under, any Transaction Document (including resulting in the payment of the Parent Termination Fee) (such Sponsor, in the case of clauses (a) and (b) above and the Sponsor that designated the Non-Consenting Director in the case of clause (c) above, the “Defaulting Sponsor”), then in each case in clauses (a), (b) and (c) above, the other Sponsor (the “Non-Defaulting Sponsor”) shall have the right to terminate with immediate effect the Defaulting Sponsor’s participation in the Merger and fund (or cause a third party to fund) any unpaid amount of the Defaulting Sponsor’s portion of the Merger Consideration and the Defaulting Sponsor shall (x) forfeit any right to receive any expense reimbursement pursuant to Section 2.5.1 and (y) immediately transfer to the Non-Defaulting Sponsor (or such third party, as the case may be) its equity interests in the Buyer in consideration therefor. Any Defaulting Sponsor hereby makes, constitutes and appoints the Non-Defaulting Sponsor as its true and lawful attorney-in-fact for it and in its name, place and stead to sign, execute, certify, acknowledge, file and record any instrument that is now or may hereafter be deemed necessary by a Non-Defaulting Sponsor in its reasonable discretion to carry out fully any transfer contemplated by clause (y) above (such power of attorney granted is a special power of attorney, coupled with an interest, and is irrevocable, and will survive the bankruptcy, insolvency, dissolution or cessation of existence of the Defaulting Sponsor). The termination of any Defaulting Sponsor’s participation in the Merger and the funding of the Defaulting Sponsor’s portion of the Merger Consideration in the manner set forth above shall not affect, alter or impair the Buyer’s, the Transitory Subsidiary’s or the Non-Defaulting Sponsor’s rights or remedies against the Defaulting Sponsor under this Agreement (including, without limitation, Sections 2.6 and 2.7) or the Transaction Agreements, with respect to the Defaulting Sponsor’s failure to fund or any other action or inaction (including any action or inaction of any Non-Consenting Director described in clause (c) above); provided that (i) the Defaulting Sponsor shall not be liable in respect of clause (c) above, and the Non-Consenting Director shall no longer be deemed to be a Non-Consenting Director and such Defaulting Sponsor shall no longer be deemed to be a Defaulting Sponsor (and neither the Non-Consenting Director nor the Defaulting Sponsor shall be deemed to have ever been a Non-Consenting Director or Defaulting Sponsor, respectively, at any time and for any purpose under this Agreement or otherwise), if the Non-Consenting Director changes his or her vote (or provides consent) with respect to the matter that resulted in such director becoming a Non-Consenting Director (the “Divided Matter”) following the completion of the process set forth below in clause (A) and (B) or the director designated by the Non-Defaulting Sponsor changes his or her vote with respect to the Divided Matter: (A) immediately following the taking of a vote of the Board of Directors that resulted in a director becoming a Non-Consenting Director (and during such meeting of the Board of Directors during which such vote was taken), the directors shall discuss the Divided Matter and each director shall present in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter and (B) in the event that following the actions contemplated by the foregoing clause (A), the Non-Consenting Director has not changed his or her vote with respect to the Divided Matter, upon the request of any director such meeting of the Board of Directors shall be adjourned and shall be re-convened within forty-eight (48) hours (or until such shorter time as is necessary in order to avoid a breach under any Transaction Document), at which time each director shall have the opportunity to change his or her vote with respect to the Divided Matter or shall re-state in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter, and shall comment on, in reasonable detail, the position set forth by the other director during the original vote with respect to the Divided Matter and (ii) for actions taken under this Section 2.2, the Defaulting Sponsor shall not be liable to the Buyer, the Transitory Subsidiary or the Non-Defaulting Sponsor for an amount in excess of the Aggregate Cap (as defined in the Guarantee). In the event that following the actions contemplated by the foregoing clauses (A) and (B) (if applicable), the Non-Consenting Director has not changed his or her vote (or otherwise provided his or her consent) with respect to the Divided Matter or the director designated by the Non-Defaulting Sponsor has changed his or her vote with respect to the Divided Matter, the Sponsors shall inform the Company of the taking, or failure to take, such action by the Board of Directors. Nothing in this Section 2.2.3 shall obligate or require the Non-Defaulting Sponsor to exercise its right to terminate the Defaulting Sponsor’s participation in the Merger or fund the Defaulting Sponsor’s portion of the Merger Consideration.

Pre Closing Matters. 2.2.1 The Sponsors hereby agree that Section 7.1 Covenants of Seadrill Prior to the Board Closing Date. From the date of Directors this Agreement to the Closing Date, Seadrill shall cause each of the Buyer Transferred Subsidiaries to conduct their business in the usual, regular and ordinary course in substantially the same manner as previously conducted. Seadrill shall not permit any of the Transferred Subsidiaries to enter into any material contracts or other material written or oral agreements prior to the Closing Date, other than such contracts and agreements as have been disclosed to the exclusive right Company prior to the date of this Agreement, without the prior consent of the Company (such consent not to be unreasonably withheld). In addition, Seadrill shall not permit any of the Transferred Subsidiaries to take any and all actions relating action that would result in any of the conditions to the operation of contributions, purchases, sales and equity issuances set forth in Article II not being satisfied. Furthermore, Seadrill hereby agrees and covenants that it: (a) shall cooperate with the Buyer Company and use its reasonable best efforts to obtain, at or prior to the ClosingClosing Date, includingany consents required in respect of the transfer of the rights and benefits under each of the Transferred Subsidiary Contracts as a result of the contributions, purchases, sales and equity issuances set forth in Article II of this Agreement; (b) shall use its reasonable best efforts to take or cause to be taken promptly all actions and to do or cause to be done all things necessary, proper and advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement and to cooperate with the Company in connection with the foregoing, including using all reasonable best efforts to obtain all necessary consents, approvals and authorizations from any governmental authority and each other Person that are required to consummate the transactions contemplated under this Agreement; (c) shall take or cause to be taken all necessary corporate action, steps and proceedings to approve or authorize validly and effectively the contributions, purchases, sales and equity issuances set forth in Article II and the execution, delivery and performance of this Agreement and the other agreements and documents contemplated hereby; (d) shall not amend, alter or otherwise modify or permit any amendment, alteration or modification of any material provision of or terminate any of the Drilling Contracts or any other Transferred Subsidiary Contract prior to the Closing Date without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed; (e) shall not exercise or permit any exercise of any rights or options contained in any of the Drilling Contracts, without limitation, any determination that the conditions to Closing specified in Sections 7.1 and 7.2 (the “Closing Conditions”) prior written consent of the Merger Agreement are satisfied Company, not to be unreasonably withheld or waiveddelayed; (f) shall observe and perform in a timely manner, any requests all of the Company for amendments or waivers of the Merger Agreement its covenants and compliance with the Buyer’s obligations under the Merger Agreement and Commitment LettersTransferred Subsidiary Contracts, if any, and each Sponsor shall be deemed to have consented to any and all such actions. 2.2.2 The Sponsors hereby agree to do all things commercially reasonable, including, but not limited to, exercising their voting rights in the Buyer, and so far as they are able to, causing each of the directors appointed by them to the Buyer to exercise their powers to cause the Buyer and the Transitory Subsidiary to comply with the terms of the Transaction Agreements. Each of the Sponsors hereby agrees that it will promptly remove and replace any director designated by it who does not act in accordance with the provisions of this Section 2.2.2. 2.2.3 In the event that (a) the Buyer has determined that the Closing Conditions have been satisfied or waived and a Sponsor fails to fund (or provides written notice to the other Sponsor of its intent not to fund) its portion of the Merger Consideration in accordance with the terms of its Equity Commitment Letter, (b) a Sponsor is in default under the Guarantee or (c) the Buyer takes, or fails to take, any action (including the determination of satisfaction of the Closing Conditions) due to the failure of one director to approve, or not approve, such action pursuant to the process set forth in the succeeding provisions of this Section 2.2.3 (in such capacity, a “Non-Consenting Director”) that results in the Buyer, the Transitory Subsidiary or any Sponsor to be in breach of, or default under, any Transaction Document (including resulting in the payment of the Parent Termination Fee) (such Sponsor, in the case of clauses (a) a default by another party thereto, it shall forthwith advise the Company of such default and (b) above and shall, if requested by the Sponsor that designated the Non-Consenting Director in the case Company, enforce all of clause (c) above, the “Defaulting Sponsor”), then in each case in clauses (a), (b) and (c) above, the other Sponsor (the “Non-Defaulting Sponsor”) shall have the right to terminate with immediate effect the Defaulting Sponsor’s participation in the Merger and fund (or cause a third party to fund) any unpaid amount of the Defaulting Sponsor’s portion of the Merger Consideration and the Defaulting Sponsor shall (x) forfeit any right to receive any expense reimbursement pursuant to Section 2.5.1 and (y) immediately transfer to the Non-Defaulting Sponsor (or its rights under such third partyTransferred Subsidiary Contracts, as the case may be) its equity interests in the Buyer in consideration therefor. Any Defaulting Sponsor hereby makesapplicable, constitutes and appoints the Non-Defaulting Sponsor as its true and lawful attorney-in-fact for it and in its name, place and stead to sign, execute, certify, acknowledge, file and record any instrument that is now or may hereafter be deemed necessary by a Non-Defaulting Sponsor in its reasonable discretion to carry out fully any transfer contemplated by clause (y) above (such power of attorney granted is a special power of attorney, coupled with an interest, and is irrevocable, and will survive the bankruptcy, insolvency, dissolution or cessation of existence of the Defaulting Sponsor). The termination of any Defaulting Sponsor’s participation in the Merger and the funding of the Defaulting Sponsor’s portion of the Merger Consideration in the manner set forth above shall not affect, alter or impair the Buyer’s, the Transitory Subsidiary’s or the Non-Defaulting Sponsor’s rights or remedies against the Defaulting Sponsor under this Agreement (including, without limitation, Sections 2.6 and 2.7) or the Transaction Agreements, with respect to the Defaulting Sponsor’s failure to fund or any other action or inaction (including any action or inaction of any Non-Consenting Director described in clause (c) above); provided that (i) the Defaulting Sponsor shall not be liable in respect of clause such default; (cg) aboveshall not cause or, to the extent reasonably within its control, permit any Encumbrances to attach to any of the Rigs other than in connection with the Rig Financing Agreements; and (h) shall permit representatives of the Company to make, prior to the Closing Date, at the Company’s risk and expense, such searches, surveys, tests and inspections of the Rigs as the Company may deem desirable; provided, however, that such surveys, tests or inspections shall not damage the Rigs or interfere with the activities of Seadrill or the customer thereon and that the Company shall furnish to Seadrill with evidence that the Company has adequate liability insurance in full force and effect. Section 7.2 Covenant of the Company Prior to the Closing Date. The Company hereby agrees and covenants that during the period of time after the date of the Agreement and prior to the Closing Date, the Company shall, in respect of the contributions, purchases, sales and equity issuances to be effected hereunder at the Closing Date, take, or cause to be taken, to the extent not already taken, all necessary limited liability company action, steps and proceedings to approve or authorize validly and effectively the contributions, purchases, sales and equity issuances and the Non-Consenting Director shall no longer be deemed to be a Non-Consenting Director execution, delivery and such Defaulting Sponsor shall no longer be deemed to be a Defaulting Sponsor (and neither the Non-Consenting Director nor the Defaulting Sponsor shall be deemed to have ever been a Non-Consenting Director or Defaulting Sponsor, respectively, at any time and for any purpose under performance of this Agreement or otherwise), if the Non-Consenting Director changes his or her vote (or provides consent) with respect to the matter that resulted in such director becoming a Non-Consenting Director (the “Divided Matter”) following the completion of the process set forth below in clause (A) and (B) or the director designated by the Non-Defaulting Sponsor changes his or her vote with respect to the Divided Matter: (A) immediately following the taking of a vote of the Board of Directors that resulted in a director becoming a Non-Consenting Director (any other agreements and during such meeting of the Board of Directors during which such vote was taken), the directors shall discuss the Divided Matter and each director shall present in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter and (B) in the event that following the actions documents contemplated by the foregoing clause (A), the Non-Consenting Director has not changed his or her vote with respect to the Divided Matter, upon the request of any director such meeting of the Board of Directors shall be adjourned and shall be re-convened within forty-eight (48) hours (or until such shorter time as is necessary in order to avoid a breach under any Transaction Document), at which time each director shall have the opportunity to change his or her vote with respect to the Divided Matter or shall re-state in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter, and shall comment on, in reasonable detail, the position set forth by the other director during the original vote with respect to the Divided Matter and (ii) for actions taken under this Section 2.2, the Defaulting Sponsor shall not be liable to the Buyer, the Transitory Subsidiary or the Non-Defaulting Sponsor for an amount in excess of the Aggregate Cap (as defined in the Guarantee). In the event that following the actions contemplated by the foregoing clauses (A) and (B) (if applicable), the Non-Consenting Director has not changed his or her vote (or otherwise provided his or her consent) with respect to the Divided Matter or the director designated by the Non-Defaulting Sponsor has changed his or her vote with respect to the Divided Matter, the Sponsors shall inform the Company of the taking, or failure to take, such action by the Board of Directors. Nothing in this Section 2.2.3 shall obligate or require the Non-Defaulting Sponsor to exercise its right to terminate the Defaulting Sponsor’s participation in the Merger or fund the Defaulting Sponsor’s portion of the Merger Considerationhereby.

Pre Closing Matters. 2.2.1 The Sponsors hereby agree that the Board of Directors 5.1 Each of the Buyer shall have Sellers hereby undertakes with the exclusive right Purchaser and SPAC that if at any time before Closing, such Seller comes to take know of any fact, circumstance or event which: (a) (i) is in any way inconsistent with such Seller’s Warranties contained in paragraphs 1.1, 1.2 and all actions relating to the operation 2 in Part A of Schedule 4, or suggests that any fact warranted may not be as warranted or may be misleading in any respect or (ii) is in any way inconsistent with any of the Buyer prior to the Closingundertakings or Sellers’ Warranties made by such Seller (save for those warranties set out in 5.1(a)(i) above), including, without limitation, or suggests that any determination that the conditions to Closing specified fact warranted may not be as warranted or may be misleading in Sections 7.1 and 7.2 any material respect; and/or (the b) may have occurred any material adverse effect (“Closing ConditionsSellers’ Material Adverse Effect”) on: - (i) the business, assets, properties, results of operations or condition (financial or otherwise) of any of the Merger Windrace Group Companies or one or more Windrace Group Companies taken as a whole; or (ii) the ability of such Seller to consummate the transactions contemplated by this Agreement are satisfied or waivedperform its obligations under this Agreement; provided, any requests however, that none of the Company for amendments or waivers of the Merger Agreement and compliance with the Buyer’s obligations under the Merger Agreement and Commitment Letters, and each Sponsor following shall be deemed to have consented to any and all such actions. 2.2.2 The Sponsors hereby agree to do all things commercially reasonable, including, but not limited to, exercising their voting rights in the Buyerconstitute, and so far as they are able to, causing each none of the directors appointed by them following shall be taken into account in determining whether there has been a Sellers’ Material Adverse Effect: any adverse change, event, development, or effect arising from or relating to the Buyer to exercise their powers to cause the Buyer and the Transitory Subsidiary to comply with the terms of the Transaction Agreements. Each of the Sponsors hereby agrees that it will promptly remove and replace any director designated by it who does not act in accordance with the provisions of this Section 2.2.2. 2.2.3 In the event that (a) the Buyer has determined that the Closing Conditions have been satisfied economy in general or waived and a Sponsor fails to fund (or provides written notice to the other Sponsor of its intent not to fund) its portion of the Merger Consideration in accordance with the terms of its Equity Commitment Letter, (b) a Sponsor is the industry in default under which the Guarantee or (c) the Buyer takes, or fails to take, any action (including the determination of satisfaction of the Closing Conditions) due to the failure of one director to approve, or not approve, such action pursuant to the process set forth Windrace Group operates in the succeeding provisions of this Section 2.2.3 general (in such capacity, a “Non-Consenting Director”) that results in the Buyer, the Transitory Subsidiary or any Sponsor to be in breach of, or default under, any Transaction Document (including resulting in the payment of the Parent Termination Fee) (such Sponsor, in the each case of clauses under (a) and (b) above not specifically relating to or disproportionately affecting the Windrace Group), such Seller shall as soon as practicable give written notice thereof to the Purchaser and SPAC. 5.2 Each of the Sponsor Founders hereby undertakes with the Purchaser and SPAC that designated if at any time before Closing, such Founder comes to know of any fact, circumstance or event which: (a) (i) is in any way inconsistent with any such Founders’ Warranties contained in paragraph 2 in Part B of Schedule 4, or suggests that any fact warranted may not be as warranted or may be misleading in any respect; or (ii) is in any way inconsistent with any of the Non-Consenting Director undertakings or Founders’ Warranties made by such Founder (save for those warranties set out in the case of clause Clause 5.2 (ca)(i) above, the “Defaulting Sponsor”), then or suggests that any fact warranted may not be as warranted or may be misleading in each case in clauses (a), any material respect; and/or (b) and may have occurred any material adverse effect (c) above, the other Sponsor (the “Non-Defaulting SponsorFounders’ Material Adverse Effect”) shall have the right to terminate with immediate effect the Defaulting Sponsor’s participation in the Merger and fund (or cause a third party to fund) any unpaid amount of the Defaulting Sponsor’s portion of the Merger Consideration and the Defaulting Sponsor shall (x) forfeit any right to receive any expense reimbursement pursuant to Section 2.5.1 and (y) immediately transfer to the Nonon: -Defaulting Sponsor (or such third party, as the case may be) its equity interests in the Buyer in consideration therefor. Any Defaulting Sponsor hereby makes, constitutes and appoints the Non-Defaulting Sponsor as its true and lawful attorney-in-fact for it and in its name, place and stead to sign, execute, certify, acknowledge, file and record any instrument that is now or may hereafter be deemed necessary by a Non-Defaulting Sponsor in its reasonable discretion to carry out fully any transfer contemplated by clause (y) above (such power of attorney granted is a special power of attorney, coupled with an interest, and is irrevocable, and will survive the bankruptcy, insolvency, dissolution or cessation of existence of the Defaulting Sponsor). The termination of any Defaulting Sponsor’s participation in the Merger and the funding of the Defaulting Sponsor’s portion of the Merger Consideration in the manner set forth above shall not affect, alter or impair the Buyer’s, the Transitory Subsidiary’s or the Non-Defaulting Sponsor’s rights or remedies against the Defaulting Sponsor under this Agreement (including, without limitation, Sections 2.6 and 2.7) or the Transaction Agreements, with respect to the Defaulting Sponsor’s failure to fund or any other action or inaction (including any action or inaction of any Non-Consenting Director described in clause (c) above); provided that (i) the Defaulting Sponsor shall not be liable in respect business, assets, properties, results of clause operations or condition (cfinancial or otherwise) aboveof any of the Windrace Group Companies or one or more Windrace Group Companies taken as a whole; or (ii) the ability of such Founder to consummate the transactions contemplated by this Agreement or perform its obligations under this Agreement; provided, and however, that none of the Non-Consenting Director shall no longer be deemed to be a Non-Consenting Director and such Defaulting Sponsor shall no longer be deemed to be a Defaulting Sponsor (and neither the Non-Consenting Director nor the Defaulting Sponsor following shall be deemed to have ever constitute, and none of the following shall be taken into account in determining whether there has been a NonFounders’ Material Adverse Effect: any adverse change, event, development, or effect arising from or relating to (a) the economy in general or (b) the industry in which the Windrace Group operates in general (in each case under (a) and (b) not specifically relating to or disproportionately affecting the Windrace Group), such Founder shall as soon as practicable give written notice thereof to the Purchaser. 5.3 Each of the Sellers hereby undertakes with the Purchaser and SPAC that pending Closing, it /he shall not: -Consenting Director (a) do (directly or Defaulting Sponsor, respectively, indirectly) or allow to be done any act or omission which would constitute or give rise to a breach of any of the Sellers’ Warranties if the Sellers’ Warranties were given at any time up to the Closing Date; or (b) dispose of any interest in any shares or equity interests in Windrace or create or grant any Encumbrance over or in respect of any of them. 5.4 Each of the Founders hereby undertakes with the Purchaser and for SPAC that pending Closing: (a) it/he shall, and shall procure that each Windrace Group Company shall: (i) not do (directly or indirectly) or allow to be done any purpose under this Agreement act or otherwise), omission which would constitute or give rise to a breach of any of the Founders’ Warranties if the Non-Consenting Director changes his or her vote Founders’ Warranties were given at any time up to the Closing Date; (ii) procure that the Purchaser, SPAC and their respective authorised representatives and advisers are promptly given full access to all the Records and other documents of each Windrace Group Company and all such information, explanations and copies with respect thereto (or provides consentthereof) with respect and to the matter business, affairs, assets, liabilities and contracts of each Windrace Group Company as the Purchaser, SPAC or their respective authorised representatives or advisers may reasonably request; (iii) not dispose of any interest in any shares or equity interests in any of the Windrace Group Company or any of them or create or grant any Encumbrance over or in respect of any of them; (iv) not pass any resolution in general meeting of any Windrace Group Company (other than any resolution constituting ordinary business conducted at an annual general meeting) without sending prior written notice to the Purchaser and SPAC; (b) it/he will procure that resulted in such director becoming at all times up to Closing each Windrace Group Company will comply with the provisions of Schedule 5. 5.5 Each of the Sellers hereby further undertakes with the Purchaser and SPAC that each of them will use all reasonable efforts to assist the Purchaser and SPAC, to the extent as permissible, to satisfy all the requirements as imposed by SEC or other applicable regulatory authorities to effect the transfer of the Sale Shares and transactions contemplated hereunder, including but not limited to, the provision of the following to the Purchaser or SPAC:- (a) on or before May 13, 2009, a Non-Consenting Director signed original or certified copy of the Accounts by any accounting firm of recognised international standard approved by the Purchaser (the “Divided MatterReporting Accountants”) following the completion ), accompanied by a signed original or certified copy of an opinion of the process set forth below Reporting Accountants, which opinion shall state that such audits were conducted in clause (A) accordance with the IFRS. All such financial statements shall be complete and (B) or the director designated by the Non-Defaulting Sponsor changes his or her vote with respect to the Divided Matter: (A) immediately following the taking of a vote of the Board of Directors that resulted correct in a director becoming a Non-Consenting Director (all material respects and during such meeting of the Board of Directors during which such vote was taken), the directors shall discuss the Divided Matter and each director shall present prepared in reasonable detail and in good faith accordance with generally accepted accounting principles applied consistently throughout the underlying reasons period reflected therein except as stated therein; (b) from time to time such information (including any results of the business, affairs, operations, assets, financial condition or prospects of the Windrace Group, annual budgets, cash flow analyses, projections, minutes of any meetings of any of its board) as may be required for the purpose of proxy filing with the SEC; and (c) from time to time any fairness opinion or other opinion as may be required by SEC for the purpose of completing the transactions hereunder. 5.6 Each of the Purchaser and SPAC hereby undertakes with the Sellers that resulted if at any time before Closing, either the Purchaser or SPAC comes to know of any fact, circumstance or event which: (a) (i) is in such directorany way inconsistent with any of the Purchaser’s vote on and SPAC’s Warranties contained in paragraphs 1.1, 1.2 and 2 in Part C of Schedule 4, or suggests that any fact warranted may not be as warranted or may be misleading in any respect or (ii) is in any way inconsistent with any of the Divided Matter undertakings or Purchaser’s and SPAC’s Warranties (save for those set out in Clause 5.6(a)(i) above), or suggests that any fact warranted may not be as warranted or may be misleading in any material respect; and/or (b) may have occurred any material adverse effect (“Purchaser’s Material Adverse Effect”) on: - (i) the business, assets, properties, results of operations or condition (financial or otherwise) of any of the Purchaser or SPAC; or (ii) the ability of any of the Purchaser or SPAC to consummate the transactions contemplated by this Agreement or perform its obligations under this Agreement; provided, however, that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been a Purchaser’s Material Adverse Effect: any adverse change, event, development, or effect arising from or relating to (a) the economy in general or (b) the industry in which the Purchaser or SPAC operates in general (in each case under (a) and (Bb) not specifically relating to or disproportionately affecting the Purchaser or SPAC), the Purchaser or SPAC shall as soon as practicable give written notice thereof to the Sellers. 5.7 Each of the Purchaser and SPAC hereby undertakes with the Sellers that pending Closing: (a) it shall not do (directly or indirectly) or allow to be done any act or omission which would constitute or give rise to a breach of any of the Purchaser’s and SPAC’s Warranties if the Purchaser’s and SPAC’s Warranties were given at any time up to the Closing Date; and (b) it will procure that at all times up to Closing the Purchaser and SPAC will comply with the provisions of Schedule 6. 5.8 Each of the Purchaser and SPAC hereby further undertakes with the Sellers that, subject to compliance with all applicable Regulations, it will use all reasonable efforts to complete the following not later than 10 days after the Closing Date: - (a) the merger with and into the Purchaser by SPAC with the Purchaser as the surviving entity (the “Merged Entity”), and the registration of the Merged Entity under the securities laws of the United States (the “Redomestication Merger”); (b) the change of name of the Merged Entity to such other name as may be agreed between the parties hereto (the “Name Change”); (c) the relocation of the listing of securities of the Merged Entity to the NYSE or such other stock exchange as may be agreed between the parties hereto (the “Listing Relocation”); and (d) the removal of all existing directors from the board of the Merged Entity (“Removal”) and the nomination of Xx. Xxx and not less than two (2) persons who satisfy the independence requirements set forth in applicable Regulations (including without limitation, the event US Exchange Act and NYSE listing standards) for election as directors of the Merged Entity (“Appointments”); provided further that following the actions contemplated by the foregoing clause (A)Appointments, the Non-Consenting Director has not changed his or her vote with respect to the Divided Matter, upon the request of any director such meeting composition of the Board board of Directors shall be adjourned and shall be re-convened within forty-eight (48) hours (or until such shorter time as is necessary in order to avoid a breach under any Transaction Document), at which time each director shall have the opportunity to change his or her vote with respect to the Divided Matter or shall re-state in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter, and shall comment on, in reasonable detail, the position set forth by the other director during the original vote with respect to the Divided Matter and (ii) for actions taken under this Section 2.2, the Defaulting Sponsor shall not be liable to the Buyer, the Transitory Subsidiary or the Non-Defaulting Sponsor for an amount in excess directors of the Aggregate Cap (as defined in the Guarantee). In the event that following the actions contemplated by the foregoing clauses (A) and (B) (if applicable), the Non-Consenting Director has not changed his or her vote (or otherwise provided his or her consent) Merged Entity complies with respect to the Divided Matter or the director designated by the Non-Defaulting Sponsor has changed his or her vote with respect to the Divided Matter, the Sponsors shall inform the Company of the taking, or failure to take, such action by the Board of Directors. Nothing in this Section 2.2.3 shall obligate or require the Non-Defaulting Sponsor to exercise its right to terminate the Defaulting Sponsor’s participation in the Merger or fund the Defaulting Sponsor’s portion of the Merger Considerationall applicable Regulations.

Pre Closing Matters. 2.2.1 The Sponsors hereby agree that (i) From the Board date hereof until the Closing, Seller shall (A) operate the Seller Property in the ordinary course of Directors business consistent with past practices, (B) use its commercially reasonable efforts to preserve intact its relationships with third parties (including suppliers, customers, and governmental authorities), in each case in all material respects, (C) comply in all material respects with all of the Buyer shall have rules, regulations, laws, statutes and orders of the exclusive right to take any and all actions relating appropriate regulatory agencies that are applicable to the operation of the Buyer prior to the Closing, including, without limitation, any determination that the conditions to Closing specified in Sections 7.1 and 7.2 (the “Closing Conditions”) of the Merger Agreement are satisfied or waived, any requests of the Company for amendments or waivers of the Merger Agreement and compliance with the Buyer’s obligations under the Merger Agreement and Commitment LettersSeller Property, and each Sponsor shall be deemed to have consented to any and (D) pay all such actions. 2.2.2 The Sponsors hereby agree to do all things commercially reasonable, including, but not limited to, exercising their voting rights in the Buyer, and so far as they are able to, causing each of the directors appointed by them to the Buyer to exercise their powers to cause the Buyer and the Transitory Subsidiary to comply with the terms of the Transaction Agreements. Each of the Sponsors hereby agrees that it will promptly remove and replace any director designated by it who does not act in accordance with the provisions of this Section 2.2.2. 2.2.3 In the event that (a) the Buyer has determined that the Closing Conditions have been satisfied or waived and a Sponsor fails to fund (or provides written notice to the other Sponsor of its intent not to fund) its portion of the Merger Consideration in accordance with the terms of its Equity Commitment Letter, (b) a Sponsor is in default under the Guarantee or (c) the Buyer takes, or fails to take, any action (including the determination of satisfaction of the Closing Conditions) due to the failure of one director to approve, or not approve, such action pursuant to the process set forth in the succeeding provisions of this Section 2.2.3 (in such capacity, a “Non-Consenting Director”) that results in the Buyer, the Transitory Subsidiary or any Sponsor to be in breach of, or default under, any Transaction Document (including resulting in the payment of the Parent Termination Fee) (such Sponsor, in the case of clauses (a) and (b) above and the Sponsor that designated the Non-Consenting Director in the case of clause (c) above, the “Defaulting Sponsor”), then in each case in clauses (a), (b) and (c) above, the other Sponsor (the “Non-Defaulting Sponsor”) shall have the right to terminate with immediate effect the Defaulting Sponsor’s participation in the Merger and fund (or cause a third party to fund) any unpaid amount of the Defaulting Sponsor’s portion of the Merger Consideration and the Defaulting Sponsor shall (x) forfeit any right to receive any expense reimbursement pursuant to Section 2.5.1 and (y) immediately transfer to the Non-Defaulting Sponsor (or such third party, as the case may be) its equity interests in the Buyer in consideration therefor. Any Defaulting Sponsor hereby makes, constitutes and appoints the Non-Defaulting Sponsor as its true and lawful attorney-in-fact for it and in its name, place and stead to sign, execute, certify, acknowledge, file and record any instrument that is now or may hereafter be deemed necessary by a Non-Defaulting Sponsor in its reasonable discretion to carry out fully any transfer contemplated by clause (y) above (such power of attorney granted is a special power of attorney, coupled with an interest, and is irrevocable, and will survive the bankruptcy, insolvency, dissolution or cessation of existence of the Defaulting Sponsor). The termination of any Defaulting Sponsor’s participation in the Merger and the funding of the Defaulting Sponsor’s portion of the Merger Consideration in the manner set forth above shall not affect, alter or impair the Buyer’s, the Transitory Subsidiary’s or the Non-Defaulting Sponsor’s rights or remedies against the Defaulting Sponsor under this Agreement (including, without limitation, Sections 2.6 and 2.7) or the Transaction Agreements, taxes with respect to the Defaulting Sponsor’s failure Seller Property that become due and payable prior to fund the Closing Date. Without limiting the generality of the foregoing, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, and except as provided below, from the date hereof until the Closing, Seller shall not: (1) make any other action material change in the conduct of the business related to the Seller Property or inaction (including any action sell, lease, or inaction otherwise dispose of any Non-Consenting Director described in part of the Seller Property, except any part of the Seller Property having an aggregate value not exceeding fifty thousand dollars (US $50,000), provided, however, that if the Closing is delayed by Buyer pursuant to clause (c) above); provided that (i) of Section 14(g), the Defaulting Sponsor aggregate value shall not be liable increased to one hundred thousand dollars (US $100,000); (2) create or allow any lien, security interest or other encumbrance on any part of the Seller Property except for Permitted Encumbrances; (3) make, or commit to make, any capital improvements to the Seller Property which could reasonably be anticipated to require future capital expenditures by Seller or Buyer in an aggregate cost in excess of fifty thousand dollars (US $50,000); (4) amend in any material respect or otherwise terminate any material Assumed Contract or material Real Estate Agreement; or (5) materially increase the compensation or benefits payable to any Potential Employee (as herein defined) or enter into or amend any employment, severance or special pay arrangement or agreement with any Potential Employee except (x) as required by applicable law, (y) as required by existing contractual arrangements, or (z) pursuant to existing compensation policies or arrangements consistent with past practice. From and after the date hereof until the Closing, Seller may, notwithstanding the provisions of clause (3) above, make any capital improvements to the Seller Property if reasonably necessary under emergency circumstances, and the cost thereof shall be taken into consideration for the adjustment of the Base Purchase Price pursuant to Section 4(g) below. Seller shall notify Buyer as soon thereafter as reasonably practicable. (ii) Until the earlier of the Closing or the termination of this Agreement pursuant to Section 14, neither Seller, its partners, members or shareholders, nor their respective officers, directors, managers, employees, representatives, agents or advisors shall do any of the following, directly or indirectly, with any third party (other than Buyer regarding the transactions contemplated by this Agreement): (A) discuss, negotiate, authorize, participate in, propose or enter into, any transaction involving a disposition of the Seller Property (any such transaction, an “Acquisition Transaction”); (B) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers from any third party in respect of clause an Acquisition Transaction; or (cC) above, and the Non-Consenting Director shall no longer be deemed furnish or cause to be a Non-Consenting Director furnished to any third party any information concerning the Seller Property or Seller in connection with an Acquisition Transaction. (iii) Buyer and such Defaulting Sponsor Tristream shall no longer be deemed use their commercially reasonable efforts to be a Defaulting Sponsor (and neither obtain the Non-Consenting Director nor financing under that certain commitment letter dated May 10, 2010 with Amegy Bank National Association required to effect the Defaulting Sponsor shall be deemed to have ever been a Non-Consenting Director or Defaulting Sponsor, respectively, at any time and for any purpose under this Agreement or otherwise), if the Non-Consenting Director changes his or her vote (or provides consent) with respect to the matter that resulted in such director becoming a Non-Consenting Director (the “Divided Matter”) following the completion of the process set forth below in clause (A) and (B) or the director designated by the Non-Defaulting Sponsor changes his or her vote with respect to the Divided Matter: (A) immediately following the taking of a vote of the Board of Directors that resulted in a director becoming a Non-Consenting Director (and during such meeting of the Board of Directors during which such vote was taken), the directors shall discuss the Divided Matter and each director shall present in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter and (B) in the event that following the actions transactions contemplated by the foregoing clause (A), the Non-Consenting Director has not changed his or her vote with respect to the Divided Matter, upon the request of this Agreement. If any director such meeting of the Board of Directors shall be adjourned and shall be re-convened within forty-eight (48) hours (or until such shorter time as is necessary in order to avoid a breach under any Transaction Document), at which time each director shall have the opportunity to change his or her vote with respect to the Divided Matter or shall re-state in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter, and shall comment on, in reasonable detail, the position set forth by the other director during the original vote with respect to the Divided Matter and (ii) for actions taken under this Section 2.2, the Defaulting Sponsor shall not be liable to the Buyer, the Transitory Subsidiary or the Non-Defaulting Sponsor for an amount in excess of the Aggregate Cap (as defined in the Guarantee). In the event that following the actions contemplated by the foregoing clauses (A) and (B) (if applicable), the Non-Consenting Director has not changed his or her vote (or otherwise provided his or her consent) with respect to the Divided Matter or the director designated by the Non-Defaulting Sponsor has changed his or her vote with respect to the Divided Matter, the Sponsors shall inform the Company of the taking, or failure to take, such action by the Board of Directors. Nothing in this Section 2.2.3 shall obligate or require the Non-Defaulting Sponsor to exercise its right to terminate the Defaulting Sponsor’s participation in the Merger or fund the Defaulting Sponsor’s portion of the Merger Considerationfunds to be provided by Amegy Bank National Association under such commitment letter becomes unavailable, regardless of the reason therefor, Buyer shall, upon learning thereof, promptly so advise Seller and Buyer and Tristream shall use their commercially reasonable efforts to obtain alternative financing from other sources. For purposes of this Agreement, “Lender” shall refer to Amegy Bank National Association or any successor lender obtained by Buyer pursuant to the preceding sentence and “Commitment” shall refer to the above-described commitment letter with Amegy Bank National Association or any commitment letter received from any successor lender.

Pre Closing Matters. 2.2.1 The Sponsors hereby agree that the Board of Directors of the Buyer shall have the exclusive right to take any and all actions relating to the operation of the Buyer prior to the Closing, including, without limitation, any determination that the conditions to Closing specified in Sections 7.1 and 7.2 (the “Closing Conditions”) of the Merger Agreement are satisfied or waived, any requests of the Company for amendments or waivers of the Merger Agreement and compliance with the Buyer’s obligations under the Merger Agreement and Commitment Letters, and each Sponsor shall be deemed to have consented to any and all such actions. 2.2.2 The Sponsors hereby agree to do all things commercially reasonable, including, but not limited to, exercising their voting rights in the Buyer, and so far as they are able to, causing each of the directors appointed by them to the Buyer to exercise their powers to cause the Buyer and the Transitory Subsidiary to comply with the terms of the Transaction Agreements. Each of the Sponsors hereby agrees that it will promptly remove and replace any director designated by it who does not act in accordance with the provisions of this Section 2.2.2. 2.2.3 In the event that (a) the Buyer has determined that the Closing Conditions have been satisfied or waived Full Access. Prior to Closing, Seller shall afford to Purchaser and a Sponsor fails to fund (or provides written notice Purchaser's representatives upon request full access to the Premises in order that Purchaser may have full opportunity to make such visual inspections as it may desire, provided, however, that such inspections shall not include any further environmental sampling or other Sponsor intrusive testing of the Premises unless such sampling or other testing is specifically recommended in a Phase I environmental report and required by Purchaser's potential mortgage lender as a condition to funding of that loan or Purchaser's potential joint venture partner as a condition to funding of its intent not to fund) its portion of co-investment in the Merger Consideration in accordance with the terms Property. Purchaser shall notify Seller of its Equity Commitment Letter, (b) a Sponsor is in default under the Guarantee or (c) the Buyer takes, or fails to take, any action (including the determination of satisfaction of the Closing Conditions) due to the failure of one director to approve, or not approve, such action pursuant to the process set forth in the succeeding provisions of this Section 2.2.3 (in such capacity, a “Non-Consenting Director”) that results in the Buyer, the Transitory Subsidiary or any Sponsor to be in breach of, or default under, any Transaction Document (including resulting in the payment of the Parent Termination Fee) (such Sponsor, in the case of clauses (a) and (b) above and the Sponsor that designated the Non-Consenting Director in the case of clause (c) above, the “Defaulting Sponsor”), then in each case in clauses (a), (b) and (c) above, the other Sponsor (the “Non-Defaulting Sponsor”) shall have the right to terminate with immediate effect the Defaulting Sponsor’s participation in the Merger and fund (or cause a third party to fund) any unpaid amount of the Defaulting Sponsor’s portion of the Merger Consideration and the Defaulting Sponsor shall (x) forfeit any right to receive any expense reimbursement pursuant to Section 2.5.1 and (y) immediately transfer to the Non-Defaulting Sponsor (or such third party, as the case may be) its equity interests in the Buyer in consideration therefor. Any Defaulting Sponsor hereby makes, constitutes and appoints the Non-Defaulting Sponsor as its true and lawful attorney-in-fact for it and in its name, place and stead to sign, execute, certify, acknowledge, file and record any instrument that is now or may hereafter be deemed necessary by a Non-Defaulting Sponsor in its reasonable discretion to carry out fully any transfer contemplated by clause (y) above (such power of attorney granted is a special power of attorney, coupled with an interest, and is irrevocable, and will survive the bankruptcy, insolvency, dissolution or cessation of existence of the Defaulting Sponsor). The termination of any Defaulting Sponsor’s participation in the Merger and the funding of the Defaulting Sponsor’s portion of the Merger Consideration in the manner set forth above shall not affect, alter or impair the Buyer’s, the Transitory Subsidiary’s intention or the Non-Defaulting Sponsor’s rights intention of its agents or remedies against representatives or lender's or a joint venturer's representatives to enter the Defaulting Sponsor under this Agreement (including, without limitation, Sections 2.6 and 2.7) or the Transaction Agreements, with respect to the Defaulting Sponsor’s failure to fund or any other action or inaction (including any action or inaction of any Non-Consenting Director described in clause (c) above); provided that (i) the Defaulting Sponsor shall not be liable in respect of clause (c) above, and the Non-Consenting Director shall no longer be deemed to be a Non-Consenting Director and such Defaulting Sponsor shall no longer be deemed to be a Defaulting Sponsor (and neither the Non-Consenting Director nor the Defaulting Sponsor shall be deemed to have ever been a Non-Consenting Director or Defaulting Sponsor, respectively, at any time and Property for any purpose under this Agreement such inspection, sampling or otherwise), if the Non-Consenting Director changes his or her vote (or provides consent) with respect to the matter that resulted in such director becoming a Non-Consenting Director (the “Divided Matter”) following the completion of the process set forth below in clause (A) and (B) or the director designated by the Non-Defaulting Sponsor changes his or her vote with respect to the Divided Matter: (A) immediately following the taking of a vote of the Board of Directors that resulted in a director becoming a Non-Consenting Director (and during such meeting of the Board of Directors during which such vote was taken), the directors shall discuss the Divided Matter and each director shall present in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter and (B) in the event that following the actions contemplated by the foregoing clause (A), the Non-Consenting Director has not changed his or her vote with respect to the Divided Matter, upon the request of any director such meeting of the Board of Directors shall be adjourned and shall be re-convened within other testing at least forty-eight (48) hours prior to such intended entry. If Purchaser or any such other Person intends to conduct any sampling or other testing of the Premises, Purchaser shall describe the scope of the proposed sampling or testing in its notice and the scope of such work shall be subject to approval by Seller, which approval shall not be In conducting any inspection or investigation of the Property, Purchaser, General Partner and the Purchaser's Representatives shall (i) not disturb or until such shorter time as is necessary interfere in order any material respect with any Tenant's use of the Premises pursuant to avoid a breach under any Transaction Document)its Lease, at which time each director shall have the opportunity to change his or her vote with respect to the Divided Matter or shall re-state in reasonable detail and in good faith the underlying reasons that resulted in such director’s vote on the Divided Matter, and shall comment on, in reasonable detail, the position set forth by the other director during the original vote with respect to the Divided Matter and (ii) for actions taken under this Section 2.2not interfere in any material respect with the operations and maintenance of the Property, the Defaulting Sponsor shall not be liable (iii)subject to the Buyerimmediately preceding paragraph which permits sampling and other invasive testing under certain circumstances and subject to certain conditions, the Transitory Subsidiary or the Non-Defaulting Sponsor for an amount not damage in excess any material respect any part of the Aggregate Cap Property or any property owned or held by any Tenant or any other Person, (as defined iv) not injure or otherwise cause bodily harm to Seller or its Tenants, agents, guests, invitees, contractors and employees or any other Person, (v) promptly pay when due the costs of all such inspections and investigations, (vi) not permit any Encumbrance to attach to the Property by reason of the exercise of its rights hereunder, (vii) at no cost to Seller restore the Property to substantially the condition in the Guarantee). In the event that following the actions contemplated by the foregoing clauses (A) which it was found before any such inspection or investigation was undertaken, and (Bviii) (if applicable)comply with all statutes, the Non-Consenting Director has not changed his laws, ordinances and regulations of any Governmental Entity applicable to any such inspection or her vote (or otherwise provided his or her consent) with respect to the Divided Matter or the director designated by the Non-Defaulting Sponsor has changed his or her vote with respect to the Divided Matter, the Sponsors shall inform the Company of the taking, or failure to take, such action by the Board of Directors. Nothing in this Section 2.2.3 shall obligate or require the Non-Defaulting Sponsor to exercise its right to terminate the Defaulting Sponsor’s participation in the Merger or fund the Defaulting Sponsor’s portion of the Merger Considerationinvestigation.