Common use of Backstop Commitment Fee Clause in Contracts

Backstop Commitment Fee. (a) To compensate the Backstop Equity Investors for the risk of their undertakings herein, the Company shall pay to the Backstop Equity Investors, in the aggregate and in accordance with the terms of the Plan, on the Effective Date, a backstop commitment fee (the “Backstop Commitment Fee”) of such number of additional shares of New Common Stock equal to 6% of the Rights Offering Shares eligible to be purchased in the Rights Offering (the “Commitment Fee Shares”) provided that, if the Effective Date shall not occur and/or this Agreement is terminated prior to the Effective Date in accordance with the provisions hereof, then the Backstop Commitment Fee shall not be paid and the Company shall have no further liability with respect to the Backstop Commitment Fee. The Backstop Commitment Fee shall be paid to the Backstop Equity Investors on a ratable basis in accordance with their respective Total Commitment Percentages; provided, however, that any Backstop Equity Investor who is a Defaulting Backstop Equity Investor shall be deemed to irrevocably waive any right or entitlement to any portion of the Backstop Commitment Fee and the portion of the Backstop Commitment Fee otherwise payable to such Defaulting Backstop Equity Investor pursuant to its Total Commitment Percentage shall be paid to the Non-Defaulting Backstop Equity Investors on a pro rata basis based on the number of Default Shares (if any) such Non-Defaulting Backstop Equity Investors have elected to purchase pursuant to Section 1.2(b) over the total number of Default Shares available. Subject to Section 1.3(b) and in accordance with the Agreement Order, the Backstop Commitment Fee shall be paid on the Effective Date without any further action required of or entertained by the Bankruptcy Court. (b) In the event that a Non-Defaulting Equity Investor purchases Default Shares within five (5) Business Day or less prior to the Effective Date, the portion of the Backstop Commitment Fee payable in respect of those Default Share pursuant to the proviso in the first sentence of Section 1.3(a), shall instead be payable by the Debtors on the closing of the purchase and sale of such Default Shares. (c) The Backstop Commitment Fee shall be earned and payable without regard to whether the Rights Offering is fully subscribed. The provision for payment of the Backstop Commitment Fee is an integral part of the transactions contemplated by this Agreement and without this provision, the Backstop Equity Investors would not have entered into this Agreement.

Backstop Commitment Fee. The Backstop Commitment Fee means a nonrefundable aggregate premium equal to 10% of the aggregate amount of the Equity Rights Offering, excluding any oversubscription amounts, payable in, at the election of each Backstop Party, (a) To compensate Reorganized Common Equity or (b) Reorganized Preferred Equity, issued in each case at the Equity Rights Offering Value. The Backstop Commitment Fee shall be fully earned upon entry of an order approving the Backstop Equity Investors for the risk of Commitment Agreement (other than by Backstop Parties who default in their undertakings herein, the Company shall pay to obligations under the Backstop Equity Investors, in the aggregate Commitment Agreement) and in accordance with the terms payable upon earlier of the Plan, on consummation of the Effective Date, a backstop commitment fee (Plan and the “termination of the Backstop Commitment Fee”) of such number of additional shares of New Common Stock equal to 6% of Agreement. If the Rights Offering Shares eligible to be purchased in the Rights Offering (the “Backstop Commitment Fee Shares”) provided that, if the Effective Date shall not occur and/or this Agreement is terminated prior to the Effective Date in accordance with for any reason other than the provisions hereofbreach of the Backstop Parties, then the Backstop Commitment Fee shall be payable to the Backstop Parties in cash in an amount equal to 5% of the aggregate amount of the Equity Rights Offering, excluding any oversubscription amounts, within three (3) business days following the earlier of (a) the closing of an Alternative Transaction and (b) the effective date of a chapter 11 plan; it being understood that a Backstop Party shall not be paid and the Company shall have no further liability with respect entitled to the Backstop Commitment Fee. The Fee under any circumstances if such Backstop Party breaches the Backstop Commitment Fee Agreement. If any of the Backstop Parties fails to satisfy its obligations under the Backstop Commitment Agreement and some or all of the remaining Backstop Parties cure such breach, such curing Backstop Parties shall be paid entitled to the Backstop Equity Investors on a ratable basis in accordance with their respective Total Commitment Percentages; provided, however, that any Backstop Equity Investor who is a Defaulting Backstop Equity Investor shall be deemed to irrevocably waive any right or entitlement to any portion payment of the applicable Backstop Commitment Fee and the portion of the shall share such Backstop Commitment Fee otherwise payable to such Defaulting Backstop Equity Investor pursuant to its Total Commitment Percentage shall be paid to the Non-Defaulting Backstop Equity Investors on a pro rata basis based on participation. To the number of Default Shares (if any) such Non-Defaulting Backstop Equity Investors have elected to purchase pursuant to Section 1.2(b) over the total number of Default Shares available. Subject to Section 1.3(b) and in accordance with the Agreement Order, the Backstop Commitment Fee shall be paid on the Effective Date without any further action required of or entertained by the Bankruptcy Court. (b) In the event extent that a Non-Defaulting Equity Investor purchases Default Shares within five (5) Business Day or less prior to the Effective Date, the portion of the Backstop Commitment Fee payable in respect of those Default Share pursuant to the proviso in the first sentence of Section 1.3(a), shall instead be payable by the Debtors on the closing of the purchase and sale of such Default Shares. (c) The Backstop Commitment Fee shall be earned and payable without regard to whether the Rights Offering is fully subscribed. The provision for payment of the Backstop Commitment Fee is payable in cash, it shall constitute an integral part administrative expense claim against each Debtor, which shall be pari passu with all other administrative expenses. Reorganized Preferred Equity The Reorganized Preferred Equity may be issued by the Reorganized Company on the Effective Date. The Reorganized Preferred Equity shall bear an annual dividend of 10%, which shall be paid in kind in additional shares of Reorganized Preferred Equity, and such shares shall be fully convertible into shares of Reorganized Common Equity at the Equity Rights Offering Value, provided that all such terms and all other terms of the transactions contemplated Reorganized Preferred Equity, including the issuance thereof, shall be subject in all respects to a Reorganized Equity term sheet to be agreed upon by this Agreement and without this provisionthe Required Backstop Parties, the Backstop Equity Investors would not have entered into this AgreementRequired Supporting Secured Noteholders, the Required Supporting Unsecured Noteholders and the Company.

Backstop Commitment Fee. Subject to the limitations contained below, the Backstop Commitment Fee means a nonrefundable aggregate premium equal to 10% of the aggregate amount of the Equity Rights Offering, excluding any oversubscription amounts, payable in, at the election of each Backstop Party, (a) To compensate Reorganized Common Equity or (b) Reorganized Preferred Equity. Subject to the limitations contained below, the Backstop Equity Investors for the risk Commitment Fee shall be fully earned upon entry of their undertakings herein, the Company shall pay to an order approving the Backstop Equity Investors, Commitment Agreement (other than by Backstop Parties who default in their obligations under the aggregate Backstop Commitment Agreement) and in accordance with the terms payable upon earlier of the Plan, on consummation of the Effective Date, a backstop commitment fee (Plan and the “termination of the Backstop Commitment Fee”) of such number of additional shares of New Common Stock equal to 6% of Agreement. If the Rights Offering Shares eligible to be purchased in the Rights Offering (the “Backstop Commitment Fee Shares”) provided that, if the Effective Date shall not occur and/or this Agreement is terminated prior to the Effective Date for any reason (other than a breach by the Backstop Parties or if any of the conditions precedent set forth in accordance with sections 7.1(j) and (r) of the provisions hereofBackstop Commitment Agreement are not met), then the Backstop Commitment Fee shall be payable to the Backstop Parties in cash in an amount equal to 5% of the aggregate amount of the Equity Rights Offering, including any oversubscription amounts, within three (3) business days following the earlier of (a) the closing of an Alternative Transaction and (b) the effective date of a chapter 11 plan; it being understood that a Backstop Party shall not be paid and the Company shall have no further liability with respect entitled to the Backstop Commitment Fee. The Fee under any circumstances if such Backstop Party breaches the Backstop Commitment Fee shall be paid to Agreement or if any of the Backstop Equity Investors on a ratable basis conditions precedent set forth in accordance with their respective Total Commitment Percentages; provided, however, that any Backstop Equity Investor who is a Defaulting Backstop Equity Investor shall be deemed to irrevocably waive any right or entitlement to any portion sections 7.1(j) and (r) of the Backstop Commitment Fee and the portion Agreement are not met. If any of the Backstop Parties fails to satisfy its obligations under the Backstop Commitment Agreement and some or all of the remaining Backstop Parties cure such breach, such curing Backstop Parties shall be entitled to payment of the applicable Backstop Commitment Fee otherwise payable to and shall share such Defaulting Backstop Equity Investor pursuant to its Total Commitment Percentage shall be paid to the Non-Defaulting Backstop Equity Investors Fee on a pro rata basis based on participation. To the number of Default Shares (if any) such Non-Defaulting Backstop Equity Investors have elected to purchase pursuant to Section 1.2(b) over the total number of Default Shares available. Subject to Section 1.3(b) and in accordance with the Agreement Order, the Backstop Commitment Fee shall be paid on the Effective Date without any further action required of or entertained by the Bankruptcy Court. (b) In the event extent that a Non-Defaulting Equity Investor purchases Default Shares within five (5) Business Day or less prior to the Effective Date, the portion of the Backstop Commitment Fee payable in respect of those Default Share pursuant to the proviso in the first sentence of Section 1.3(a), shall instead be payable by the Debtors on the closing of the purchase and sale of such Default Shares. (c) The Backstop Commitment Fee shall be earned and payable without regard to whether the Rights Offering is fully subscribed. The provision for payment of the Backstop Commitment Fee is payable in cash, it shall constitute an integral part of the transactions contemplated by this Agreement and without this provisionadministrative expense claim against each Debtor, the Backstop Equity Investors would not have entered into this Agreementwhich shall be pari passu with all other administrative expenses.

Backstop Commitment Fee. (a) To compensate the Backstop Equity Investors Parties for the risk of their undertakings herein, the Company Aquilex Parties shall pay to the Backstop Equity InvestorsParties, in the aggregate and in accordance with the terms of the Plan, on the Effective DateRestructuring Support Agreement, a backstop commitment fee (the “Backstop Commitment Fee”) of such number of additional shares of New Common Stock in an amount equal to 64.0% of the sum of (i) the Aggregate Rights Offering Shares eligible to be purchased Amount, (ii) the Noteholder Cash Option Amount, (iii) the Consent Payment Amount and (iv) the Plan Additional Units Purchase Price (in each case, assuming the full exercise of the applicable amounts and assuming, in the Rights Offering case of clause (ii), that 75% of the “Commitment Fee Shares”) provided thatprincipal amount of the Senior Notes is held by holders of Senior Notes that are Eligible Holders and 25% of the principal amount of the Senior Notes is held by holders of Senior Notes that are not Eligible Holders), if the Effective Date shall not occur and/or this Agreement is terminated prior to the Effective Date in accordance with the provisions hereof, then the which Backstop Commitment Fee shall not be equal to $3,631,753 and paid and in the form of an immediate increase, on the date upon which the Company shall have no further liability with respect received a fully underwritten commitment agreement for the DIP Facility, in the aggregate principal amount outstanding under the Bridge Facility in an amount equal to the Backstop Commitment Fee; provided that, in the event that any Backstop Party is not a lender under the Bridge Facility as of the date on which the Backstop Commitment Fee is paid, the lenders under the Bridge Facility will agree that the borrowers under the Bridge Facility may, and the Aquilex Parties that are parties to the Bridge Facility shall, issue and deliver notes (or other instruments) under the Bridge Facility to such non-lender Backstop Parties in an amount equal to such non-lender Backstop Party’s Total Commitment Percentage of the Backstop Commitment Fee. Pursuant to the terms of the Restructuring Support Agreement and, if necessary, the Plan, on the Effective Date, the aggregate principal amount outstanding under the Bridge Facility (including the Backstop Commitment Fee), together with all interest accrued thereon (provided that no interest shall accrue on the Backstop Commitment Fee), will be converted into the Bridge Units, which will be issued by the Company on the Effective Date. (b) The Backstop Commitment Fee (i) shall be deemed earned in full on the date upon which the Company shall have received a fully underwritten commitment agreement for the DIP Facility, (ii) will not be refundable under any circumstance or creditable against any other fee or other amount paid or payable in connection with the Contemplated Transactions or otherwise and (iii) shall be paid without setoff or recoupment and shall not be subject to defense or offset on account of any claim, defense or counterclaim. Subject to Section 1.2(e)(ii), the Backstop Commitment Fee shall be paid to the Backstop Equity Investors on a ratable basis Parties in accordance with their respective Total Commitment Percentages; provided, however, that any Backstop Equity Investor who is a Defaulting Backstop Equity Investor shall be deemed to irrevocably waive any right or entitlement to any portion of the Backstop Commitment Fee and the portion of the Backstop Commitment Fee otherwise payable to such Defaulting Backstop Equity Investor pursuant to its Total Commitment Percentage shall be paid to the Non-Defaulting Backstop Equity Investors on a pro rata basis based on the number of Default Shares (if any) such Non-Defaulting Backstop Equity Investors have elected to purchase pursuant to Section 1.2(b) over the total number of Default Shares available. Subject to Section 1.3(b) and in accordance with the Agreement Order, the The Backstop Commitment Fee shall be paid on the Effective Date without any further action required of or entertained by the Bankruptcy Court. (b) In the event that a Non-Defaulting Equity Investor purchases Default Shares within five (5) Business Day Court or less prior to the Effective Date, the portion of the Backstop Commitment Fee payable in respect of those Default Share pursuant to the proviso in the first sentence of Section 1.3(a), shall instead be payable by the Debtors on the closing of the purchase and sale of such Default Sharesany other Person. (c) The Backstop Commitment Fee shall be, and as of the date upon which the Company shall have received a fully underwritten commitment agreement for the DIP Facility shall be deemed, earned and payable shall be payable, in each case, without regard to whether the Rights Offering is fully subscribed. The provision for payment of the Backstop Commitment Fee is an integral part of the transactions contemplated by this Agreement Contemplated Transactions, and without this provision, provision the Backstop Equity Investors Parties would not have entered into this Agreement.