Common use of Restructuring Transactions Clause in Contracts

Restructuring Transactions. Section 5.05 is hereby amended and supplemented by adding the following at the end of Section 5.05: “After the Closing Date, the following terms and conditions shall apply to the procedures set forth in Section 4.3 of Schedule 5.05 for any Transferred Contracts (other than a Rail Car Lease Agreement) or Partially Transferred Contract that cannot be transferred to a member of the Xxxxxx Group: (i) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract (including any material amendment or material modification required or necessary to obtain the consent of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned); (ii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract in accordance with terms hereof, the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract in accordance with the terms thereof and, in connection therewith, the Seller shall use commercially reasonable efforts to follow reasonable directions provided by the applicable member of the Xxxxxx Group so long as such directions do not cause a breach of such contract (provided, that the Purchaser and the Xxxxxx Holdcos shall, and shall cause the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred Contract.”

Restructuring Transactions. Section 5.05 is hereby amended and supplemented by adding (a) Notwithstanding anything to the following at contrary set forth herein, as soon as practicable, but in no event more than twenty (20) days after the end of Section 5.05: “After the Closing Datedate hereof, the following Company and the Shareholders shall take or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate the Restructuring Transactions as set forth in Annex I attached hereto. The Restructuring Transactions shall be completed on terms and conditions shall apply acceptable to the procedures set forth Purchaser in Section 4.3 of Schedule 5.05 for any Transferred Contracts (other than a Rail Car Lease Agreement) all respects, and all documents, agreements, or Partially Transferred Contract that cannot instruments shall be transferred subject to a member the prior approval of the Xxxxxx Group: Purchaser. The Company shall, and each of the Shareholders shall cause the Company and Nagoya to, provide the Purchaser and its representatives with a reasonable opportunity to review and comment on any documents, agreements or instruments prior to such documents, agreements and instruments being executed and/or delivered in connection with the Restructuring Transactions. (b) Each of the Shareholders hereby acknowledges and agrees that (i) until any corporate actions, transfers or other actions taken in connection with the requisite approval Restructuring Transactions shall be made on an “AS-IS”, “WHERE-IS” basis, without representation or consent has been obtained under warranty of any kind, and without recourse to the Company or Nagoya with respect to any such Transferred Contract corporate actions, transfers or Partially Transferred Contractother actions, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract (including any material amendment or material modification required or necessary and without recourse to obtain the consent of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned)recipient thereof; (ii) until the requisite approval Shareholders shall, jointly and severally, assume, satisfy, discharge, perform, pay and remain responsible for any and all Liabilities or consent has been obtained under such Transferred Contract Losses based upon, related or Partially Transferred Contractpertaining to, arising from or with respect to any of the Seller will keep Restructuring Transactions, including any Taxes associated with or arising from the Purchaser reasonably informed Restructuring Transactions, in each case irrespective of any requests made by whether they exist or arise prior to or after the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred ContractClosing; and (iii) until the requisite approval Shareholders shall, jointly and severally, indemnify, defend and hold harmless each Purchaser Indemnified Person for any and all Liabilities or consent has been obtained under such Transferred Contract Losses related to the Restructuring Transactions, regardless of whether arising prior to or Partially Transferred Contract in accordance with terms hereof, after the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract in accordance with Closing Date. (c) Notwithstanding the terms thereof andforegoing, in connection therewith, no event shall this Section 6.18 limit or otherwise restrict the Seller shall use commercially reasonable efforts to follow reasonable directions provided by the applicable member representations and warranties of the Xxxxxx Group so long Shareholders, including any representations and warranties as such directions do not cause a breach of such contract (providedto the Company or its Subsidiaries, that the Purchaser set forth herein and the Xxxxxx Holdcos shall, and shall cause indemnification obligations of the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred ContractShareholders hereunder.”

Restructuring Transactions. Section 5.05 is hereby amended and supplemented by adding the following at the end (a) As of Section 5.05: “After the Closing Date, all aspects of the following terms equity ownership and conditions corporate and operational governance of the Borrower effected by the Restructuring Transaction Documents (including the composition of the Board of Directors and the management of the Borrower) shall apply be satisfactory to the procedures Agent. Additionally, all agreements relating to, and the corporate and capital structure of, Borrower, as of the Closing Date and after giving effect to the transactions contemplated by the Loan Documents and the Restructuring Transaction Documents, and all organizational documents of Borrower, to the extent not expressly set forth in Section 4.3 the Plan of Schedule 5.05 for any Transferred Contracts Reorganization, shall be satisfactory to the Agent; and (other than a Rail Car Lease Agreementb) or Partially Transferred Contract that cannot be transferred to a member As of the Xxxxxx Group: Closing Date and after giving effect to the Restructuring Transaction Documents, the organizational structure and the capital structure of the Borrower shall be satisfactory to the Agent; (c) Agent shall have received a copy of the Confirmation Orders, each of which shall (i) until be in form and substance satisfactory to Agent, (ii) except as agreed to by Agent, be final orders on the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred ContractClosing Date, any material amendment ofand (iii) be certified by the Clerk of the Bankruptcy Court; (d) As of the Funding Date, Agent shall have either (X) received a certificate dated the Closing Date from the Clerk of the Bankruptcy Court, if available, certifying that (i) there is no order amending, modifying, staying, vacating, or material modification torescinding the Final Order entered on the docket of the Clerk of the Bankruptcy Court on May 17, 2005 or pending appeal or motion to vacate or rescind the same and (ii) there is no motion or other pleading on file seeking to amend, modify, stay, vacate, or rescind the Plan of Reorganization, or (Y) waived such Transferred Contract requirement; (e) As of the Funding Date, (i) A Certificate by the Borrower that all conditions to the Restructuring Transactions set forth in the Restructuring Transaction Documents shall have been satisfied or Partially Transferred Contract the fulfillment of any such conditions shall have been waived by the Agent, (including ii) the Restructuring Transactions shall have become effective in accordance with the terms of the Restructuring Transaction Documents; and (iii) the Effective Date with respect to the Plan of Reorganization shall have occurred; (f) As of the Closing Date, Agent shall have received a fully executed or conformed copy of each Restructuring Transaction Document and any material amendment documents executed in connection therewith, together with copies of each of the opinions of counsel delivered to the parties under the Restructuring Transaction Documents, accompanied by a letter from each such counsel (to the extent not inconsistent with such counsel’s established internal policies) authorizing Agent and Lender to rely upon such opinion to the same extent as though it were addressed to Agent and Lender; (g) As of the Closing Date and Funding Date, each Restructuring Transaction Document shall be in full force and effect, and shall be in form and substance satisfactory to Agent; and (h) As of the Closing Date and Funding Date, the Plan of Reorganization shall not have been amended, supplemented, restated or material modification required otherwise modified, whether pursuant to Section 1127 of the Bankruptcy Code, court order, or necessary to obtain otherwise, without the consent of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written approval Agent and, as of the Purchaser (such approval not Closing Date or as of the Funding Date and after giving effect to be unreasonably withheld, delayed or conditioned); (ii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred ContractRestructuring Transactions, the Seller will keep the Purchaser reasonably informed Plan of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has Reorganization shall have been obtained under such Transferred Contract or Partially Transferred Contract in accordance with terms hereof, the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract substantially consummated in accordance with the terms thereof and, in connection therewith, and the Seller terms of the Confirmation Orders. No document shall use commercially reasonable efforts be deemed delivered to follow reasonable directions provided the Agent until received by the applicable member of Agent at its offices in Boston, Massachusetts. Under no circumstances shall this Agreement take effect until executed and accepted by the Xxxxxx Group so long as such directions do not cause a breach of such contract (provided, that the Purchaser and the Xxxxxx Holdcos shall, and shall cause the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred ContractAgent at said office.”

Restructuring Transactions. Section 5.05 is hereby amended and supplemented by adding the following (a) Each Additional B-4 Dollar Term Lender agrees that, at the end election of Section 5.05: “After the Closing Borrower, in one or more transactions and from time to time after the Restructuring Consent Date, (i) (A) each of Omaha Holdings LLC (or any other Person otherwise constituting “Holdings I”) and Gates Holdings 1 LLC (or any other Person otherwise constituting “Holdings II”) (collectively, “Existing Holdings”) may assign all of its rights, title, interests, duties, liabilities and obligations (including the following terms Obligations) under the Loan Documents as “Holdings” and conditions a Guarantor to one or more Persons organized, formed or incorporated under the Laws of the United States, any state thereof or the District of Columbia or organized, formed or incorporated under the Laws of England and Wales (or such other jurisdiction as reasonably acceptable to the Administrative Agent) (such Person or Persons, individually or collectively, as applicable, “New Holdings”); provided that (1) one of New Holdings directly and collectively owns 100% of the issued and outstanding Equity Interests in the Borrower, (2) New Holdings issues a Guarantee of the Obligations and assumes all of such rights, title, interests, duties, liabilities and obligations of Existing Holdings under this Agreement and the other Loan Documents, (3) no Event of Default shall have occurred and be continuing at the time of the Holdings Restructuring Transaction (as defined below) or shall result therefrom, (4) the Administrative Agent shall have received all documentation and other information about New Holdings, required under applicable “know your customer” and anti-money laundering rules and regulations and reasonably requested by the Administrative Agent (or by any Lender through the Administrative Agent) in writing, (5) New Holdings shall have become party to the ABL Intercreditor Agreement pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent, (6) New Holdings shall have pledged 100% of the Equity Interests of the Borrower and, if applicable, the Equity Interests of its direct Subsidiaries, as applicable, in each case to the Collateral Agent for the benefit of the Secured Parties pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent, shall have become party to the Security Agreement and shall have satisfied the Collateral and Guarantee Requirement applicable to New Holdings (provided that (x) if New Holdings is organized under the Laws of England and Wales, New Holdings shall cause a Companies House filing to be made to the extent necessary to perfect the security interest of the Collateral Agent in the Equity Interests of the Borrower and, if applicable, the Equity Interests of its direct Subsidiaries, as applicable, and (y) if New Holdings is organized under the Laws of a jurisdiction other than the United States, any state thereof, the District of Columbia or England and Wales, New Holdings shall take such actions as it and the Collateral Agent may reasonably agree are necessary to perfect the security interest of the Collateral Agent in the Equity Interests of the Borrower and if applicable, the Equity Interests of its direct Subsidiaries, as applicable, in each case notwithstanding any limitations set forth in the Collateral and Guarantee Requirement) and (7) the Holdings Restructuring Transactions (as defined below) do not, taken as a whole, materially impair the aggregate value or the enforceability of the Guarantees under the Loan Documents of the Obligations or the Liens of the Collateral Agent in the Collateral (this clause (i)(A), the “Holdings Assignment and Assumption”) and (B) immediately after giving effect to the Holdings Assignment and Assumption, and without affecting the continuing rights, title, interest, duties, liabilities and obligations of New Holdings, Existing Holdings shall be released from all of its rights, title, interests, duties, liabilities and obligations (including the Obligations) under the Loan Documents (including any Collateral and Guarantee Requirement) (if any) as “Holdings” (this clause (i), the “Holdings Restructuring Transactions”) and (ii) (A) the Borrower (in such capacity, the “Existing Borrower”) may assign all of its rights, title, interests, duties, liabilities and obligations (including the Obligations) under the Loan Documents as the “Borrower” to any other Person (including any Co-Borrower) organized under the Laws of the United States, any state thereof or the District of Columbia (a “New Borrower”); provided that (1) the New Borrower assumes all of such rights, title, interests, duties, liabilities and obligations of the Existing Borrower under this Agreement and the other Loan Documents, (2) no Event of Default shall have occurred and be continuing at the time of the Borrower Restructuring Transactions or shall result therefrom, (3) the Administrative Agent shall have received all documentation and other information about the New Borrower, required under applicable “know your customer” and anti-money laundering rules and regulations and reasonably requested by the Administrative Agent (or by any Lender through the Administrative Agent) in writing, (4) New Borrower shall have become party to the ABL Intercreditor Agreement pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent, (5) the Collateral owned by or transferred to the New Borrower from the Existing Borrower shall continue to constitute Collateral under the Collateral Documents, (6) New Borrower shall have become party to the Security Agreement and satisfied the Collateral and Guarantee Requirement, applicable to “Borrowers”, (7) each Guarantor shall have confirmed in writing that its Guarantee of the Obligations shall apply to the procedures set forth New Borrower’s obligations under the Loan Documents and shall have confirmed its prior grant of Liens under the Collateral Documents continue in Section 4.3 of Schedule 5.05 for any Transferred Contracts full force and effect after giving effect to the Borrower Restructuring Transaction, and (other than a Rail Car Lease Agreement) 8) the Borrower Restructuring Transactions do not materially impair the aggregate value or Partially Transferred Contract that cannot be transferred to a member the enforceability of the Xxxxxx Group: Guarantees under the Loan Documents of the Obligations or the Liens of the Collateral Agent in the Collateral (this clause (ii)(A), the “Borrower Assignment and Assumption”) and (B) immediately after giving effect to such Borrower Assignment and Assumption, and without affecting the continuing rights, title, interest, duties, liabilities and obligations of such New Borrower, such Existing Borrower shall be released from all of its rights, title, interests, duties, liabilities and obligations (including the Obligations) under the Loan Documents (including any Collateral and Guarantee Requirement) (if any) as a “Borrower” (this clause (ii), the “Borrower Restructuring Transactions” and, together with the Holdings Restructuring Transactions, the “Restructuring Transactions”). (b) Each Additional B-4 Dollar Term Lender hereby consents to each of the Restructuring Transactions, the Equity Pledge Limitation (as defined below) and the Guarantor Limitation (as defined below) and acknowledges and agrees that in no event shall any Restructuring Transaction be deemed to constitute a Change of Control. Following the Restructuring Consent Date, the Administrative Agent and the Borrower may amend this Agreement (i) until to reflect the requisite approval Restructuring Transactions and such other related changes to this Agreement as may be applicable, including that, for purposes of Section 7.14, New Holdings shall be permitted to directly own the Equity Interests of Subsidiaries that are not the Borrower (in addition to the Equity Interests of the Borrower) and (ii) notwithstanding anything to the contrary in the Loan Documents, with respect to a Loan to a U.S. Borrower, to limit the pledge of voting Equity Interests in any CFC or consent has been obtained under such Transferred Contract FSHCO in each case that is a direct or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract indirect Subsidiary of a U.S. Borrower (including any material amendment or material modification required or necessary such Equity Interests previously pledged to obtain secure the consent Obligations), in each case, to 65% of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written approval voting power of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned); (ii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms all outstanding Equity Interests of such Transferred Contract CFC or Partially Transferred Contract; FSHCO (the “Equity Pledge Limitation”) and (iii) until notwithstanding anything to the requisite approval contrary in the Loan Documents, with respect to a Loan to a U.S. Borrower, to exclude from the requirement to be a Subsidiary Guarantor (including removing any existing Subsidiary Guarantor) any CFC or FSHCO in each case that is a direct or indirect Subsidiary of a U.S. Borrower (the “Guarantor Limitation”), and, notwithstanding anything to the contrary in Section 10.01, such amendment shall become effective without any further action or consent has been obtained under of any other party to this Agreement. Each Additional B-4 Dollar Term Lender authorizes the Administrative Agent and the Collateral Agent to execute and deliver such Transferred Contract documents, and take such other actions as the Borrower or Partially Transferred Contract in accordance with terms hereofHoldings may reasonably request, to give effect to the Restructuring Transactions, the Seller Equity Pledge Limitation and the Guarantor Limitation. (c) From and after the consummation of the Holdings Restructuring Transactions and the Restructuring Consent Date, New Holdings shall perform itsbe “Holdings” and a “Guarantor” under this Agreement and the other Loan Documents and a “Grantor” under the Security Agreement. New Holdings shall represent and warrant that, or cause its Affiliates to perform theiras of the date of the Holdings Restructuring Transactions, obligations under such Transferred Contract or Partially Transferred Contract in accordance with one of New Holdings directly and collectively owns 100% of the terms thereof and, in connection therewithEquity Interests of the Borrower. (d) From and after the Borrower Restructuring Transactions and the Restructuring Consent Date, the Seller New Borrower shall use commercially reasonable efforts to follow reasonable directions provided by the applicable member of the Xxxxxx Group so long as such directions do not cause be a breach of such contract (provided, that the Purchaser “Borrower” under this Agreement and the Xxxxxx Holdcos shall, other Loan Documents and shall cause a “Grantor” under the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred ContractSecurity Agreement.”

Restructuring Transactions. Section 5.05 is hereby amended (i) In accordance with the plan of restructuring previously approved by the Board of Directors and supplemented by adding the following at the end stockholders of Section 5.05: “After the Closing DateZ-D, the following terms and conditions shall apply prior to the procedures date hereof Z-D has sold all of the businesses listed on Section 3.2(r) of the Z-D Disclosure Schedule (the "Divested Businesses"). Set forth on Section 3.2(r) of the Z-D Disclosure Schedule is a list of all agreements, arrangements and understandings to which Z-D or any of its Subsidiaries is a party or pursuant to which they may have any obligations or liabilities (whether absolute, contingent or otherwise and whether or not required to be set forth or reflected in a consolidated balance sheet of Z-D prepared in accordance with GAAP) relating to the Divested Businesses or the sale thereof other than obligations or liabilities against which Z-D is indemnified by the buyer thereof (the "Divestiture Agreements"). Z-D has provided to CNET true and correct copies of the Divestiture Agreements. All of the Divestiture Agreements are in full force and effect and are unmodified. Except for obligations and liabilities arising under or described in the Divestiture Agreements, neither Z-D nor any of its Subsidiaries has any liabilities or obligations of any nature (whether absolute, contingent or otherwise and whether or not required to be set forth or reflected in a consolidated balance sheet of Z-D prepared in accordance with GAAP) arising out of or relating to the Divested Businesses or their respective businesses, assets, liabilities or obligations or the sale thereof other than obligations or liabilities against which Z-D is indemnified by the buyer thereof. Except as set forth in Section 4.3 3.2(r) of Schedule 5.05 the Z-D Disclosure Schedule, no claims have been asserted or threatened against Z-D or any of its Subsidiaries under any of the Divestiture Agreements (including, without limitation, any claims in respect of a breach of any term of any such agreement or for any Transferred Contracts indemnification provided by Z-D or any of its Subsidiaries in any Divestiture Agreement) nor to the knowledge of Z-D is there any basis for any such claim, in each case other than immaterial claims arising following the date hereof and prior to the Effective Time. (ii) Except as disclosed in the Spin Co. S-1 as filed with the SEC prior to the date hereof, (A) Spin Co. and its Subsidiaries do not own or have any rights to use any properties, assets or other rights used in the conduct of the business of Z-D or any of Z-D's Subsidiaries (other than a Rail Car Lease AgreementSpin Co. and Spin Co.'s Subsidiaries), (B) there are no agreements, arrangements, understandings or Partially Transferred Contract that cannot be other transactions between Spin Co. or any of its Subsidiaries, on the one hand, and Z-D and any of its Subsidiaries (other than Spin Co. and its Subsidiaries) on the other and (C) since December 31, 1999 no officer or key employee of Z-D or any of its Subsidiaries (other than Spin Co. and its Subsidiaries) has transferred to a member to, or otherwise become an employee or consultant of, Spin Co. or any of the Xxxxxx Group: its Subsidiaries. The assets of Spin Co. and its Subsidiaries consist entirely of (i) until assets reflected as "Net assets of discontinued operations" on the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract consolidated balance sheets of Z-D included in the Z-D Filed SEC Reports (including any material amendment or material modification required or necessary to obtain the consent of the counterparty to such Transferred Contract or Partially Transferred Contract"Z-D Financial Statements") shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned); and (ii) until assets acquired by Spin Co. and its Subsidiaries after the requisite approval date of the Z-D Financial Statements. Since the date of the Z-D Financial Statements, neither Z-D nor any of its Subsidiaries (other than Spin Co. and its Subsidiaries) has transferred any assets or consent has been obtained under such Transferred Contract other rights to Spin Co. and its Subsidiaries except cash transfers prior to the date hereof that are fully reflected in the net inter-company payable from Spin Co. and its Subsidiaries to Z-D. Z-D and its Subsidiaries (other than Spin Co. and its Subsidiaries) do not have any liabilities or Partially Transferred Contractother obligations (whether absolute, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty contingent or otherwise and whether or not required to such Transferred Contract be set forth in or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract reflected on a balance sheet prepared in accordance with terms hereof, the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract in accordance with the terms thereof and, in connection therewith, the Seller shall use commercially reasonable efforts to follow reasonable directions provided by the applicable member GAAP) arising out of the Xxxxxx Group so long as such directions do not cause a breach of such contract (provided, that the Purchaser and the Xxxxxx Holdcos shall, and shall cause the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s Spin Co. or its Affiliates’ compliance with this subsection Subsidiaries or their respective properties, assets and other activities other than (iii); i) those to be expressly provided for in the Distribution Agreement (as defined below) and (ivii) those for which Spin Co. will indemnify Z-D and its Subsidiaries pursuant to the SellerDistribution Agreement. For all purposes of this Agreement, the Xxxxxx Holdcos Subsidiaries of Spin Co. will include those entities being transferred to Spin Co. pursuant to the Distribution Agreement. All outstanding indebtedness of Spin Co. and its Subsidiaries (including the $150,000,000 interim debt facility) is non-recourse to Z-D and its Subsidiaries (other than Spin Co. and its Subsidiaries). The Preliminary Spin-Off Prospectus included as part of the Spin Co. S-1 as filed with the SEC prior to the date hereof accurately describes in all material respects Z-D's current plans with respect to the Spin-Off and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred Contract.”Cash

Restructuring Transactions. Section 5.05 is hereby amended (i) The Borrower or a holding company entity formed by the Backstop Parties shall have received the gross cash proceeds of a preferred equity rights offering to be made available to the Senior Noteholders in an amount sufficient to meet the requirements of clause (iv) below (the “Rights Offering”), and supplemented if received by adding the following at the end of Section 5.05: “After the Closing Datesuch holding company, the following terms and conditions holding company shall apply have contributed the same (less any expenses to be paid by such holding company in connection with the Restructuring) to the procedures Borrower as cash common equity or preferred equity on the terms set forth in Section 4.3 of Schedule 5.05 for any Transferred Contracts the Restructuring Support Agreement or otherwise reasonable acceptable to the Arranger and the Required Lenders. (other than a Rail Car Lease Agreementii) or Partially Transferred Contract that cannot be transferred to a member of the Xxxxxx Group: The Restructuring shall have been consummated either (i) until substantially upon the requisite approval Exchange Offer having been consummated (or consent has been obtained under such Transferred Contract or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract (including any material amendment or material modification required or necessary to obtain shall be consummated substantially contemporaneously with the consent occurrence of the counterparty to such Transferred Contract or Partially Transferred ContractEffective Date) shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned); (ii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract in accordance with terms hereof, the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract in accordance with the terms thereof andof the Restructuring Support Agreement, or (ii) if the Chapter 11 Cases (as defined in the Restructuring Support Agreement) shall have been commenced, then substantially upon the effective date of the Borrower’s Pre-Packaged Plan of Reorganization (as defined below) (which shall occur substantially contemporaneously with the occurrence of the Effective Date). The Borrower’s pre-packaged plan of reorganization constituting the “Plan” as defined in that certain Aquilex Holdings LLC Restructuring Support Agreement, dated as of December 20, 2011 (such restructuring support agreement, together with all exhibits, schedules and all related documents, in connection therewitheach case, as amended, supplemented or modified from time to time in accordance with the terms thereof, collectively, the Seller shall use commercially reasonable efforts to follow reasonable directions provided “Restructuring Support Agreement”) by and among (a) the applicable member Company, (b) certain of the Xxxxxx Group so long Company’s subsidiaries and affiliates, (c) the holders or investment advisors or managers for the account of the holders of at least two-thirds in principal amount of 11 1/8% Senior Notes due 2016 of the Company (such Notes, the “Senior Notes”, and any holder of Senior Notes, a “Senior Noteholder”), (d) certain Senior Noteholders, as Backstop Parties (as defined below), (e) the Existing Agent, (f) the holders of at least two-thirds in principal amount of the loans under the Existing Credit Agreement, (g) U.S. Bank National Association, in its capacity as administrative agent and collateral agent (in such directions do not cause a breach capacity, the “Existing Second Lien Agent”) under that certain Credit Agreement, dated as of such contract November 15, 2011 (providedthe “Existing Second Lien Credit Agreement”), that by and among the Purchaser Company, as the borrower, the Existing Second Lien Agent and the Xxxxxx Holdcos shalllenders party thereto (the “Existing Second Lien Lenders”), (h) the holders of at least two-thirds in principal amount of the loans under the Existing Second Lien Credit Agreement, (i) Aquilex HoldCo L.P., and shall cause the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (ivj) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred Contract.”Ontario Teachers

Restructuring Transactions. Section 5.05 is hereby The Borrower, each Lender, each Exiting Lender and the Agent agree that on the Restructuring Date the following transactions shall be deemed to occur automatically, without further action by any party hereto: (i) The Existing Credit Facility shall be replaced by the Restated Credit Facility and the Existing Credit Agreement shall be deemed to be amended and supplemented by adding restated in its entirety in the following at form of this Agreement; (ii) Each Exiting Lender shall cease to be a party hereto and shall have no further obligation to extend credit hereunder; (iii) All Existing Obligations, to the end of Section 5.05: “After extent not paid on the Closing Restructuring Date, shall be renewed, extended and restated hereunder and shall continue to be outstanding hereunder and, as such, shall constitute Obligations hereunder, and nothing herein shall be construed to deem such Existing Obligations paid. Each Existing Lender shall, promptly after receipt of (a) the following terms payment in immediately available funds of all amounts owing to such Existing Lender pursuant to Section 4.1(xi), and conditions shall apply (b) its Notes hereunder (in the case of Lenders only), return to the procedures Borrower the promissory note (marked "Superseded" or, in the case of Exiting Lenders, "Cancelled") received by it in connection with the Existing Credit Agreement. The Borrower, each Lender, each Exiting Lender and the Agent agree that (a) the restructuring transactions provided in the foregoing clauses (i), (ii) and (iii) shall not be effective until the conditions set forth in Section 4.3 4.1 are satisfied and the initial Advance shall have been made hereunder; (b) all terms and conditions of Schedule 5.05 for any Transferred Contracts the Existing Credit Agreement which are amended and restated by this Agreement shall remain effective until such amendment and restatement becomes effective hereunder; (c) the representations, warranties and covenants set forth herein shall become effective concurrently with the making of the initial Advance hereunder; and (d) this Agreement (other than a Rail Car Lease Section 9.7) shall terminate if the Restructuring Date shall not have occurred on or prior to June 30, 1996. Each Exiting Lender's execution hereof shall be deemed to evidence only its agreement with this Section 9.17 and its consent, solely in its capacity as an Existing Lender under the Existing Credit Agreement) or Partially Transferred Contract that cannot be transferred , to a member the amendments of the Xxxxxx Group: (i) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, any material amendment of, or material modification to, such Transferred Contract or Partially Transferred Contract (including any material amendment or material modification required or necessary to obtain the consent of the counterparty to such Transferred Contract or Partially Transferred Contract) shall require the prior written approval of the Purchaser (such approval not to be unreasonably withheld, delayed or conditioned); (ii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract, the Seller will keep the Purchaser reasonably informed of any requests made by the counterparty to such Transferred Contract or Partially Transferred Contract to amend or modify the terms of such Transferred Contract or Partially Transferred Contract; (iii) until the requisite approval or consent has been obtained under such Transferred Contract or Partially Transferred Contract in accordance with terms hereof, the Seller shall perform its, or cause its Affiliates to perform their, obligations under such Transferred Contract or Partially Transferred Contract in accordance with the terms thereof and, in connection therewith, the Seller shall use commercially reasonable efforts to follow reasonable directions provided by the applicable member of the Xxxxxx Group so long as such directions do not cause a breach of such contract (provided, that the Purchaser and the Xxxxxx Holdcos shall, and shall cause the Xxxxxx Subsidiaries to, be responsible for and indemnify the Seller and its Affiliates against all Losses arising from or relating to the Seller’s or its Affiliates’ compliance with this subsection (iii); and (iv) the Seller, the Xxxxxx Holdcos and the Purchaser shall use commercially reasonable efforts to agree to commercially reasonable terms for purposes of effectuating the benefits and burdens of such Transferred Contract or Partially Transferred ContractExisting Credit Agreement embodied herein.”