Common use of Early Termination Fee Clause in Contracts

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, the Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.

Early Termination Fee. Upon (a) Subject to the occurrence provisions of an Applicable Premium Trigger EventSection 2.15(b), in the event that the Termination Date occurs, on or prior to the second anniversary of the Amendment Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, the "Revolving Credit Early Termination Fee. Notwithstanding anything " (so referred to herein) determined and payable as follows: (i) 0.75% of the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that highest Maximum Revolving Credit Ceiling if the Obligations are accelerated as a result Termination Date occurs on or before the first anniversary of the occurrence and continuance of any Event of Default Amendment Effective Date. (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as ii) 0.50% of the date of acceleration, will also be due and payable and will be treated and deemed as though highest Maximum Revolving Credit Ceiling if the Loans were prepaid as of such date and shall constitute part Termination Date occurs after the first anniversary of the Obligations for all purposes herein and without further notice Amendment Effective Date but on or action shall be deemed to be capitalized and added to before the principal balance second anniversary of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations Amendment Effective Date. (and/or this Agreement or the other Loan Documentsb) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the No Revolving Credit Early Termination Fee shall be payable notwithstanding (i) after the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement second anniversary of the Loan Parties to pay Amendment Effective Date or (ii) if the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders Date occurs as a result of such Applicable Premium Trigger Event. funds borrowed from FRFI, Fleet National Bank or any of their Affiliates. (c) The Revolving Credit Early Termination Fee shall be payable allocated to the Revolving Credit Lenders pro rata based upon their Revolving Credit Dollar Commitment. (d) The Borrower shall have no right to reduce the Maximum Revolving Credit Dollar Ceiling, provided, however, that in connection with the sale or issuance of any of its equity interests to any Person, in terms satisfactory to the Agent, the Borrower shall, with at least 3-Business Days prior written notice to the Agent, have the right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an integral multiple thereof, provided, however, that no such reduction in the Maximum Revolving Credit Ceiling shall be greater than $75,000,000 in the aggregate and that no reduction in the Maximum Revolving Credit Ceiling may be reinstated.". (k) Section 2.18(b)(i) of the Loan Agreement is hereby amended by restating such section in its entirety as follows: (i) The aggregate Stated Amount of all L/C's then outstanding, does not exceed Thirty Five Million Dollars in immediately available funds($35,000,000).". (l) Sections 5.2(a) and 5.2(c) of the Loan Agreement is hereby amended by inserting the following clause at the end of such sections: ", provided, that, with the consent of the Agent and pursuant to documentation acceptable to the Agent, including without limitation documentation modifications to the Security Documents required by the Agent, the Borrower may change its State of organization to the State of Minnesota.". (m) Section 5.2 of the Loan Agreement is hereby amended by inserting the following subsection at the end of such section:

Early Termination Fee. Upon If the occurrence Borrower makes the Permitted No-Call Prepayment or, after the first anniversary of the Effective Date, in the event that the Borrower prepays or repays all or part of the Loans pursuant to Section 2.04 or as a result of an Applicable Premium Trigger Eventacceleration of the Loan pursuant to Section 8.02, unless such prepayment or repayment is required (and not otherwise waived by the Required Lenders) pursuant to Section 2.04(b) or (c), then the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) equal to (i) if such prepayment or repayment is the Permitted No-Call Prepayment, three percent (3%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (ii) if such prepayment or repayment is not the Permitted No-Call Prepayment, (A) if such prepayment or repayment occurs after the first anniversary of the Effective Date and prior to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result second anniversary of the occurrence and continuance of any Event of Default Effective Date, three percent (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as 3%) of the date outstanding principal amount of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of or repaid at such date time and shall constitute part (B) if such prepayment or repayment occurs on or after the second anniversary of the Obligations for all purposes herein Effective Date and without further notice or action shall be deemed to be capitalized and added prior to the principal balance third anniversary of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result Effective Date, one (1%) percent of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each outstanding principal amount of the Loan Parties expressly agrees prepaid or repaid at such time; provided, that (A) if such prepayment occurs on or after the Early Termination Fee is reasonable and is third anniversary of the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Effective Date no Early Termination Fee shall be payable notwithstanding due and payable. All parties to this Agreement agree and acknowledge that the then prevailing market rates at Lenders will have suffered damages on account of the time payment is made, (C) there has been a course prepayment of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for Loans during such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to timeframe set forth in this Section 2.04 2.08(b) and the Fee Letterthat, (E) the agreement in view of the Loan Parties to pay difficulty in ascertaining the amount of such damages, the Early Termination Fee is a material inducement constitutes reasonable compensation and liquidated damages to compensate the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundson account thereof.

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event, the Borrower shall pay If for any reason (a) this Extension Agreement is terminated prior to the Administrative Agentend of then current term or any renewal term of this Extension Agreement, for or (b) Borrower and NSC fail to enter into the ratable benefit Definitive Loan Agreement or the Definitive Loan Agreement fails to close (i) prior to the end of the Lenders, the Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter current term or any other Loan Documentrenewal term of this Extension Agreement or (ii) on or before September 30, it 2003, or (c) NSC's Plan of Reorganization in the Chapter 11 Case (as approved by Lender) is understood not consummated on or prior to September 30, 2003, in view of the impracticality and agreed that if extreme difficulty of ascertaining actual damages and by mutual agreement of the Obligations are accelerated parties as to a reasonable calculation of Lender's lost profits as a result of thereof, Borrower agrees to pay to Lender, on demand, an early termination fee in the occurrence amount set forth below if such termination or failure is effective in the period indicated: AMOUNT PERIOD ------ ------ (a) $4,000,000 From the Closing Date to and continuance of any Event of Default including the day which is 180 days thereafter, (b) $2,400,000 From the 181st day after the Closing Date to and including automaticallySeptember 30, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans2003. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter Such early termination fee shall be presumed to be equal to the liquidated amount of damages sustained by the Lenders Lender as the a result of the occurrence of the Applicable Premium Trigger Event, such early termination and the Loan Parties agree Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee In addition, Lender shall also be payable entitled to such early termination fee upon the occurrence of any Event of Default described in the event the Obligations Sections 11.1(g) 11.1(h) hereof, except if (and/or a)Lender does not exercise its right to terminate this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counselExtension Agreement, (Bb) Lender elects, at its option, to provide financing to Borrower or permit the Early Termination Fee use of cash collateral under the Bankruptcy Code and (c)such financing is approved on terms acceptable to Lender; PROVIDED THAT, such termination fee shall be remain payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction as otherwise provided herein. The early termination fee provided for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and 4.6 shall be deemed included in the Fee Letter, (E) the agreement Obligations. Borrower waives any claim for reduction of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits fees whether or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders not such fees are treated as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundspenalty.

Early Termination Fee. Upon In the occurrence of an Applicable Premium Trigger Eventevent that the Facility Termination Date occurs, for any reason, prior to the Maturity Date, or in the event that the Borrower reduces (but does not terminate) the Aggregate Revolving Commitments prior to the Maturity Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit account of each Lender in accordance with its Applicable Percentage, a fee (the Lenders, the “Early Termination Fee. Notwithstanding anything ”) in respect of amounts which are or become payable by reason thereof equal to the contrary following: (i) three percent (3%) of the Aggregate Revolving Commitments then in this Agreementeffect (without regard to any termination thereof), or of the Fee Letter amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any other Loan Documenttime on or before the first anniversary of the Closing Date; (ii) two percent (2%) of the Aggregate Revolving Commitments then in effect (without regard to any termination thereof), it is understood or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any time after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date; and agreed (iii) zero percent (0%) of the Aggregate Revolving Commitments then in effect (without regard to any termination thereof), or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Facility Termination Date or reduction, respectively, shall occur at any time after the second anniversary of the Closing Date; provided that if the Obligations are accelerated Facility Termination Date occurs during the period described in the foregoing clause (ii) solely as a result of the occurrence and continuance of any a Transformative Event of Default (including automatically, by operation of law or otherwiseas defined below), then the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter hereunder shall be presumed one and one quarter percent (1.25%) of the of the Aggregate Revolving Commitments then in effect (without regard to be equal any termination thereof). For purposes of the preceding sentence, “Transformative Event” shall mean any merger, acquisition, investment or consolidation, in any such case by the Borrower or any Subsidiary that either (i) is not permitted by the terms of any Loan Document immediately prior to the liquidated damages sustained consummation of such transaction or (ii) if permitted by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each terms of the Loan Parties expressly agrees that (A) Documents immediately prior to the Early Termination Fee is reasonable consummation of such transaction, would not provide the Borrower and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and its Subsidiaries with adequate flexibility under the Loan Parties giving specific consideration Documents for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate in each case of clauses (i) or (ii) to the extent Axos Bank (or its Affiliates) is afforded an opportunity to provide or participate in the debt facility replacing the debt facility contemplated by the Loan Documents in connection with the Transformative Event, which replacement debt facility is on terms and calculation conditions reasonably satisfactory to Axos Bank. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the lost profits or damages early termination of the Lenders Credit Agreement or any portion of the Aggregate Revolving Commitments and that it would be impractical and extremely difficult to ascertain that, in view of the actual difficulty in ascertaining the amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.such

Early Termination Fee. Upon In the occurrence event that the Borrower prepays or repays all or part of the Loans pursuant to Section 2.04 (unless such prepayment or repayment is made pursuant to Section 2.04(b), 2.04(c), 2.04(d) (in each case, regardless of whether any prepayment or repayment is required to be made pursuant to Section 2.04 of the BoA Credit Agreement (as in effect on the Third Amendment Effective Date) at such time from the applicable proceeds) or 2.06(a)) or as a result of an Applicable Premium Trigger Eventacceleration of the Loans pursuant to Section 8.02, then the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) equal to (i) if such prepayment or repayment occurs on or after the Third Amendment Effective Date and prior to the contrary in this Agreementtwelfth (12th) month anniversary of the Third Amendment Effective Date, three percent (3%) of the Fee Letter outstanding principal amount of the Loans prepaid or any other Loan Documentrepaid at such time, it is understood (ii) if such prepayment or repayment occurs on or after the twelfth (12th) month anniversary of the Third Amendment Effective Date and agreed prior to the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (iii) if such prepayment or repayment occurs on or after the twenty-fourth (24th) month anniversary of the Third Amendment Effective Date and prior to the thirty-sixth (36th) month anniversary of the Third Amendment Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment or repayment occurs on or after the Obligations are accelerated as a result thirty-sixth (36th) month anniversary of the occurrence and continuance of any Event of Default (including automaticallyThird Amendment Effective Date, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The no Early Termination Fee shall also be payable due and payable; provided further, that if such prepayment or repayment is made in the event the Obligations (and/or this Agreement connection with or the other Loan Documents) are satisfied immediately following a Change of Control or released by foreclosure (whether by power of judicial proceeding or otherwise)Transformative Acquisition, deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall instead be payable notwithstanding (i) if such prepayment or repayment occurs on or after the then prevailing market rates Third Amendment Effective Date and prior to the twelfth (12th) month anniversary of the Third Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at the time payment is madesuch time, (Cii) there has been a course of conduct between Lenders and if such prepayment or repayment occurs on or after the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, twelfth (D12th) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement month anniversary of the Loan Parties to pay the Early Termination Fee is a material inducement Third Amendment Effective Date and prior to the Lenders to make the Loans, and twenty-fourth (F24th) the Early Termination Fee represents a good faith, reasonable estimate and calculation month anniversary of the lost profits or damages Third Amendment Effective Date, one percent (1%) of the Lenders and that it would be impractical and extremely difficult to ascertain the actual outstanding principal amount of damages to the Lenders Loans prepaid or profits lost by repaid at such time or (iii) if such prepayment or repayment occurs on or after the Lenders as a result twenty-fourth (24th) month anniversary of such Applicable Premium Trigger Event. The the Third Amendment Effective Date, no Early Termination Fee shall be payable due and payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the prepayment of the Loans during such timeframe set forth in Dollars this Section 2.08(b) and that, in immediately available fundsview of the difficulty in ascertaining the amount of such damages, the Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof.”

Early Termination Fee. Upon In the occurrence event of an Applicable Premium Trigger Eventany early termination of the Loan facilities hereunder pursuant to Section 1.8 or upon the acceleration of the Obligations pursuant to the provisions of Section 7.2, in addition to the payment of the subject principal amount and the other amounts required pursuant to Section 1.8 or Section 7.2, Borrower shall pay to Lender an early termination fee (the Administrative Agent, for the ratable benefit of the Lenders, the “Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result ”) of (i) 2.0% of the occurrence and continuance Maximum Revolving Facility Amount, if such termination occurs on or before the first anniversary of any Event the Closing Date, (ii) 1.0% of Default the Maximum Revolving Facility Amount, if such termination occurs after the first anniversary of the Closing Date, but on or before the second anniversary of the Closing Date, or (including automaticallyiii) 0.0% of the Maximum Revolving Facility Amount, by operation if such termination occurs after the second anniversary of law or otherwise)the Closing Date. For the avoidance of doubt, for purposes of calculating the Early Termination Fee, if anythe amount of the Maximum Revolving Facility Amount shall be determined without giving effect to any Availability Block, determined Reserves, or any other reduction in the Maximum Revolving Facility Amount. Provide Lender with each of the documents set forth below at the following times in form satisfactory to Lender: Twice per month, on the 5th Business Day after the 15th of each month and last day of each month (as of the 15th day of such month and the prior month end, respectively) (a) a completed and signed Borrowing Base certificate in the form provided to Borrower by Lender prior to the date hereof, (b) a roll-forward with supporting details with respect to Borrower’s Accounts (delivered electronically in an acceptable format). (c) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to Borrower’s Accounts, (d) a detailed aging, by total, of Borrower’s Accounts, together with a reconciliation and supporting documentation for any reconciling items noted, Monthly, no later than 5th Business Day after the 15th day of each month (as of such 15th day) (e) a summary aging, by vendor, of each Loan Party Obligor’s accounts payable and any book overdraft and an aging, by vendor, of any held checks (delivered electronically in an acceptable format), (f) a monthly Account roll-forward with respect to Borrower’s Accounts, in a format reasonably acceptable to Lender, tied to the beginning and ending Account balances of Borrower’s general ledger (delivered electronically in an acceptable format), Quarterly, no later than the 5th Business Day after each quarter end (as of such quarter end) (g) a report regarding each Loan Party Obligor’s accrued, but unpaid, ad valorem taxes, Annually, on the 15th day of each January (as of the prior Fiscal Year end) (h) a detailed list of each Loan Party Obligor’s customers, with address and contact information, (i) a detailed list of each Loan Party Obligor’s vendors, with address and contact information, (j) an updated Disclosure Schedule, true and correct in all material respects as of the date of accelerationdelivery, will also be due accompanied by a certificate executed by an officer of Borrower in a form reasonably acceptable to Lender (it being understood and payable and will be treated and deemed as though the Loans were prepaid as agreed that no such update shall serve to cure any existing Event of Default, including any Event of Default resulting from any failure to provide any such disclosure to Lender on an earlier date and shall constitute part or any breach of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (any earlier made representation and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwisewarranty), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.and

Early Termination Fee. Upon If the occurrence Borrowers shall voluntarily repay in full and terminate the Revolving Facility and all Revolving Commitments, it shall pay an early termination fee (the “Early Termination Fee”) equal to (x) (a) if such voluntary repayment and termination occurs after the Closing Date but on or prior to the first anniversary of an Applicable Premium Trigger Eventthe Closing Date, 2% of the Maximum Revolver Amount, (b) if such voluntary repayment and termination occurs after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, 1% of the Maximum Revolver Amount and (c) if such voluntary repayment and termination occurs after the second anniversary of the Closing Date, 0% of the Maximum Revolver Amount. Notwithstanding anything herein to the contrary, if the Parent or any of its Affiliates elects to increase the Revolving Commitments pursuant to Section 2.19 (and all conditions thereof would have been satisfied) and the Lenders elect not to participate in such Revolving Facility Increase, the Borrower shall pay Parent may then elect to repay in full and terminate the Revolving Facility and all Revolving Commitments, and provided that the new loan facility replacing the Revolving Facility has a commitment of at least 110% of the Maximum Revolver Amount and is on the same or better terms than the Revolving Facility (as reasonably determined by the Administrative Agent), for then and only in such event, the ratable benefit Borrowers shall pay 50% of the Lenders, the then applicable Early Termination FeeFee (if any). Notwithstanding anything to For the contrary in this Agreement, the Fee Letter or any other Loan Documentavoidance of doubt, it is understood and agreed that if Loans which are prepaid without a permanent reduction in the Obligations are accelerated as a result of the occurrence and continuance of Revolving Commitment shall not be subject to any Event of Default prepayment premium (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.

Early Termination Fee. Upon If the occurrence Borrowers shall voluntarily repay in full and terminate the Revolving Facility and all Revolving Commitments, it shall pay an early termination fee (the “Early Termination Fee”) equal to (x) (a) if such voluntary repayment and termination occurs after the Closing Date but on or prior to the first anniversary of an Applicable Premium Trigger Eventthe Closing Date, 22.0% of the Maximum Revolver Amount, (b) if such voluntary repayment and termination occurs after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, 11.0% of the Maximum Revolver Amount and (c) if such voluntary repayment and termination occurs after the second anniversary of the Closing Date, 00.0% of the Maximum Revolver Amount. Notwithstanding anything herein to the contrary, if the Parent or any of its Affiliates elects to increase the Revolving Commitments pursuant to Section 2.19 (and all conditions thereof would have been satisfied) and the Lenders elect not to participate in such Revolving Facility Increase, the Borrower shall pay Parent may then elect to repay in full and terminate the Revolving Facility and all Revolving Commitments, and provided that the new loan facility replacing the Revolving Facility has a commitment of at least 110% of the Maximum Revolver Amount and is on the same or better terms than the Revolving Facility (as reasonably determined by the Administrative Agent), for then and only in such event, the ratable benefit Borrowers shall pay 5050.0% of the Lenders, the then applicable Early Termination FeeFee (if any). Notwithstanding anything to For the contrary in this Agreement, the Fee Letter or any other Loan Documentavoidance of doubt, it is understood and agreed that if Loans which are prepaid without a permanent reduction in the Obligations are accelerated as a result of the occurrence and continuance of Revolving Commitment shall not be subject to any Event of Default prepayment premium (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.

Early Termination Fee. Upon (i) If, before the occurrence third anniversary of an Applicable Premium Trigger Eventthe Closing Date, the Borrower Revolving Loan Commitment is reduced or terminated for any reason (including any voluntary, mandatory or automatic reduction or termination, regardless of whether an Event of Default has occurred and is then continuing, and including by reason of acceleration, automatic acceleration or otherwise), in each case pursuant to Section 2.6, Section 11.2 or otherwise, then in each such case, in addition to any required payment of principal and unpaid accrued interest and other amounts due thereon, Borrowers immediately shall be required to pay to the Administrative Agent, for the ratable benefit of the Lenders, the a premium (each, an “Early Termination Fee. Notwithstanding anything ”) (as liquidated damages and compensation for the cost of the Lenders being prepared to make funds available under the contrary in Revolving Loan Commitment during the scheduled term of this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable ) in accordance with this Section 2.04 and the Fee Letter shall be presumed to be an amount equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is Percentage (as defined below) of the product amount of an arm’s length transaction between sophisticated business peoplethe Revolving Loan Commitment or portion thereof so reduced or terminated. The “Early Termination Fee Percentage” shall be (A) 3.00%, ably represented by counselif such event occurs on or before the first anniversary of the Closing Date, (B) 2.00%, if such event occurs after the first anniversary of the Closing Date, but on or before the second anniversary of the Closing Date or (C) 1.00%, if such event occurs after the second anniversary of the Closing Date, but on or before the third anniversary of the Closing Date; provided that no Early Termination Fee shall be payable notwithstanding due for any voluntary termination occurring during the then prevailing market rates at sixty (60) day period immediately preceding the time payment is madeScheduled Maturity Date, so long as the Borrower Representative provides Agent thirty (C30) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result days’ prior written notice of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsvoluntary termination.

Early Termination Fee. Upon If this Agreement is terminated by Fremont upon the occurrence of an Applicable Premium Trigger EventEvent of Default, or is terminated at Borrower's request other than pursuant to Section 3.1, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Fremont's lost profits as a result thereof, Borrower shall pay to Fremont upon the Administrative Agent, for the ratable benefit effective date of the Lenders, the such termination a fee ("Early Termination Fee. Notwithstanding anything ") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the contrary in first (1st) anniversary of this Agreement; or (b) one percent (1%) of the Advance Limit if such termination occurs after the first (1st) anniversary of this Agreement; provided, however, that no Early Termination Fee shall be payable if (x) termination occurs on the Fee Letter Renewal Date or any other Loan Documentsubsequent anniversary of the Renewal Date, it is understood (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and agreed that if conditions of Section 3.1 and (z) the Obligations are accelerated as a result indefeasibly paid in full on or before the termination date specified in such notice of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loanstermination. Any The Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated amount of damages sustained by the Lenders Fremont as the result of the occurrence of the Applicable Premium Trigger Event, early termination and the Loan Parties agree Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall also be payable deemed included in the event Obligations. Notwithstanding anything contained herein to the Obligations (and/or this Agreement or contrary, if and to the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) extent the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business peopleconstitutes interest under applicable law, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed when added to in all other interest contracted for, charged or received under this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits Agreement or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.any

Early Termination Fee. Upon In the occurrence of an Applicable Premium Trigger Event, event that the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, the Early Termination Fee. Notwithstanding anything to the contrary Revolving Loan and Term Loan C and Term Loan D are paid in this Agreement, the Fee Letter or any full (other Loan Document, it is understood and agreed that if the Obligations are accelerated than as a result of payment of Term Loan C or Term Loan D at maturity or by reason of mandatory prepayments from Excess Cash Flow or scheduled reduction of the occurrence and continuance Term Loans C or Term Loan D by way of payments in accordance with the applicable Term Note or the expiration of the Revolving Loan at maturity), or in the event of any Event intentional non-compliance by either Borrower with any provisions of Default this Agreement which results in a termination of the Credit Facility by Lender pursuant to Section 11.2 or 11.4 hereof, Borrowers will pay to Lender an early termination fee of (including automatically, by operation a) 3% of law or otherwise), the Early Termination Feeline of credit approved for Borrowers under the Revolving Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan C and Term Loan D, if anythe same occurs during the first year following the execution of Consolidated Amendment No. 2 to this Loan Agreement, determined as (b) 2% of the date line of accelerationcredit approved for Borrowers under the Revolving Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan C and Term Loan D, will also be due if the same occurs during the second year following the execution of Consolidated Amendment No. 2 to this Loan Agreement, and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part (c) 1% of the Obligations line of credit approved for all purposes herein Borrowers under the Revolving Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan C and without further notice or action Term Loan D, if the same occurs during the third year following the execution of Consolidated Amendment No. 2 to this Loan Agreement, in order to compensate Lender for its reliance expenses and loss of anticipated profits. It is acknowledged that this fee shall be deemed to be capitalized liquidated damages for loss of a bargain and added not a penalty and the same is acknowledged to the principal balance be an integral part of the applicable Loansconsideration for Lender to execute Consolidated Amendment No. Any Early Termination Fee payable in accordance with 2 to this Section 2.04 Loan Agreement; provided, however, that such fee will not be due and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event that the Obligations (and/or Borrowers make the foregoing prepayments exclusively from funds generated from a sale of substantially all of the assets of the Borrowers or a sale of the controlling interest in the voting securities in the Borrowers or if the outstanding borrowings under this Agreement are replaced by borrowings under a new credit facility granted by Lender to a borrower who is affiliated with either Borrower or the other Loan DocumentsGeneral Partner of either Borrower." Section 8.1 (O) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) Agreement is, effective the Early Termination Fee is reasonable date hereof, hereby amended and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration restated to read in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than its entirety as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.follows:

Early Termination Fee. Upon If for any reason this Agreement is terminated prior to the occurrence third anniversary of an Applicable Premium Trigger Eventthe Effective Date, in view of the Borrower shall impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Agent's and each Lender's lost profits as a result thereof, Borrowers agree to pay to the Administrative Agent, for the ratable benefit of the Lenders, upon the effective date of such termination, an early termination fee ("Early Termination Fee. Notwithstanding anything ") in the amount equal to (i) two (2%) percent of the Total Loan Commitment, if such termination occurs on or prior to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result second anniversary of the occurrence and continuance Effective Date or (ii) one (1%) percent of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination FeeTotal Loan Commitment, if any, determined as such termination occurs after the second anniversary of the date of acceleration, will also be due Effective Date and payable and will be treated and deemed as though on or prior to the Loans were prepaid as of such date and shall constitute part third anniversary of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable LoansEffective Date. Any Such Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated amount of damages sustained by the Agent and Lenders as the a result of the occurrence of the Applicable Premium Trigger Event, such early termination and the Loan Parties Borrowers and Guarantors agree that it is reasonable under the circumstances currently existingexisting (including, but not limited to, the borrowings that are reasonably expected by Borrowers hereunder and the interest, fees and other charges that are reasonably expected to be received by Agent and Lenders pursuant hereto). In addition, Agent and Lenders shall be entitled to such Early Termination Fee upon the occurrence of any Event of Default described in Sections 8.01(f) and 8.01(g) hereof, even if Agent and Lenders do not exercise the right to terminate this Agreement, but elect, at their option, to provide financing to any Borrower or permit the use of cash collateral under the United States Bankruptcy Code. The Early Termination Fee provided for in this Section 2.06(f) shall also be payable deemed included in the event Obligations. Notwithstanding that prepayment shall be made on the Obligations (and/or termination of this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise)Agreement, deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination no Prepayment Fee shall be payable notwithstanding the then prevailing market rates at the time payment is maderequired with respect to such prepayments, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to but instead Borrowers shall pay the Early Termination Fee. If for any reason this Agreement is terminated prior to the Final Maturity Date, (D) Borrowers and Guarantors agree that the Loan Parties Obligations shall be estopped hereafter from claiming differently than as agreed to Paid in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsFull.

Early Termination Fee. Upon In the occurrence of an Applicable Premium Trigger Eventevent that (i) the Termination Date occurs, for any reason, prior to the Maturity Date or (ii) the Borrowers reduce (but do not terminate) the Aggregate Commitments prior to the Maturity Date, the Borrower Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) equal to the contrary following: (x) two percent (2%) of (I) in this Agreementthe event the Termination Date occurs, the Fee Letter Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date, payment or reduction shall occur at any time on or before the first anniversary of the Closing Date; (y) one percent (1%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date or reduction shall occur at any time on or after the first anniversary of the Closing Date, but prior to the second anniversary of the Closing Date; and (z) one-half of one percent (0.50%) of (I) in the event the Termination Date occurs, the Commitments then in effect (without regard to any termination thereof) or (II) in the event that the Borrowers reduce the Aggregate Commitments, the amount of such reduction, if the Termination Date shall occur at any time on or after the second anniversary of the Closing Date but prior to the third anniversary of the Closing Date. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result portion of the occurrence Commitments and continuance that, in view of any Event the difficulty in ascertaining the amount of Default (including automatically, by operation of law or otherwise)such damages, the Early Termination FeeFee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof. Notwithstanding the foregoing, if any, determined as of during the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added period beginning six months prior to the principal balance of Maturity Date and ending on the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger EventMaturity Date, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the no Early Termination Fee shall be payable notwithstanding due if the then prevailing market rates Lead Borrower provides prior written notice to Agent at the time payment is made, least ninety (C90) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement days prior to the Lenders to make the Loans, and (F) the Early applicable Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsDate.

Early Termination Fee. Upon In the occurrence event prior to the fourth anniversary of the Third Amendment Effective Date, whether before or after an Applicable Premium Trigger EventEvent of Default or acceleration of the Obligations, the Borrower Borrowers prepay or are otherwise required to prepay all or any part of the Term Loan for any reason, the Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) in respect of amounts which are prepaid or are or become payable by reason thereof equal to (a) if such prepayment occurs on or prior to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result first anniversary of the occurrence Third Amendment Effective Date, four percent (4.0%) of the amounts so prepaid, (b) if such prepayment occurs after the first anniversary of the Third Amendment Effective Date and continuance on or prior to the second anniversary of the Third Amendment Effective Date, two percent (2.0%) of the amounts so prepaid and (C) if such prepayment occurs after the second anniversary of the Third Amendment Effective Date and on or prior to the third anniversary of the Third Amendment Effective Date, one percent (1.0%) of the amounts so prepaid. For greater certainty, if any such prepayment occurs after the third anniversary of the Third Amendment Effective Date, no Early Termination Fee or other fee arising solely on account of prepayment of the Term Loan shall be payable. All parties to this Agreement agree and acknowledge that (i) the Lenders will have suffered damages on account of the early prepayment of the Term Loans, whether before or after an Event of Default (including automaticallyor acceleration of the Obligations, by operation and that, in view of law or otherwise)the difficulty in ascertaining the amount of such damages, the Early Termination Fee, if any, determined as of the date of acceleration, will also be due Fee constitutes reasonable compensation and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by to compensate the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, on account thereof and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (Aii) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been constitutes neither a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction penalty for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsprepayment nor unaccrued interest on any Term Loan.

Early Termination Fee. Upon (a) Subject to the occurrence provisions of an Applicable Premium Trigger EventSection 2.15(b), in the event that the Termination Date occurs, on or prior to the second anniversary of the Restatement Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, a fee (the “Revolving Credit Early Termination Fee. Notwithstanding anything to ”) determined and payable as follows: (i) 0.75% of the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that highest Maximum Revolving Credit Ceiling if the Obligations are accelerated as a result Termination Date occurs on or before January 1, 2007. (ii) 0.50% of the occurrence and continuance of any Event of Default highest Maximum Revolving Credit Ceiling if the Termination Date occurs after January 1, 2007, but on or before January 1, 2008. (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documentsb) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the No Revolving Credit Early Termination Fee shall be payable notwithstanding (i) after January 1, 2008 or (ii) if the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders Date occurs as a result of such Applicable Premium Trigger Event. funds borrowed from Bank of America or any of its Affiliates. (c) The Revolving Credit Early Termination Fee shall be payable allocated to the Revolving Credit Lenders pro rata based upon their Revolving Credit Dollar Commitment. (d) The Borrower shall have no right to reduce the Maximum Revolving Credit Ceiling, provided, however, that in Dollars connection with the sale or issuance of any of its equity interests to any Person, in immediately available fundsterms satisfactory to the Agent, the Borrower shall, with at least three (3) Business Days prior written notice to the Agent, have the right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an integral multiple thereof, provided, however, that no such reduction in the Maximum Revolving Credit Ceiling shall be greater than $75,000,000 in the aggregate and that no reduction in the Maximum Revolving Credit Ceiling may be reinstated.

Early Termination Fee. Upon If the occurrence Borrower shall voluntarily repay in full and terminate the Revolving Facility and all Revolving Commitments, it shall pay an early termination fee (the “Early Termination Fee”) equal to (x) if such voluntary repayment and termination occurs after the Closing Date but on or prior to the first anniversary of an Applicable Premium Trigger Eventthe Closing Date, 2% of the Maximum Revolver Amount, (b) if such voluntary repayment and termination occurs after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, 1% of the Maximum Revolver Amount and (c) if such voluntary repayment and termination occurs after the second anniversary of the Closing Date, 0% of the Maximum Revolver Amount. Notwithstanding anything herein to the contrary, if the Parent or any of its Affiliates elects to increase the Revolving Commitments pursuant to Section 2.19 (and all conditions thereof would have been satisfied) and the Lenders elect not to participate in such Revolving Facility Increase, the Parent may then elect to repay in full and terminate the Revolving Facility and all Revolving Commitments, and provided that the new loan facility replacing the Revolving Facility has a commitment of at least 110% of the Maximum Revolver Amount and is on the same or better terms than the Revolving Facility (as reasonably determined by the Administrative Agent), then and only in such event, the Borrower shall pay to the Administrative Agent, for the ratable benefit 50% of the Lenders, the then applicable Early Termination FeeFee (if any). Notwithstanding anything to For the contrary in this Agreement, the Fee Letter or any other Loan Documentavoidance of doubt, it is understood and agreed that if Revolving Loans which are prepaid without a permanent reduction in the Obligations are accelerated as a result of the occurrence and continuance of Revolving Commitment shall not be subject to any Event of Default prepayment premium (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.

Early Termination Fee. Upon Section 2.06(a) of the occurrence Credit Agreement is hereby amended by adding the following at the end thereof: “Notwithstanding anything to the contrary contained in this Agreement, if for any reason this Agreement is terminated on or prior to the second anniversary of an Applicable Premium Trigger Eventthe Amendment No. 3 Effective Date, in view of the Borrower shall pay impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of the Administrative Agent’s and Lenders’ lost profits as a result thereof, for Borrowers agree to pay to Administrative Agent and Lenders, upon the ratable benefit effective date of the Lenderssuch termination, the Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any The Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated amount of damages sustained by the Administrative Agent and Lenders as the a result of the occurrence of the Applicable Premium Trigger Event, such early termination and the Loan Parties Borrowers agree that it is reasonable under the circumstances currently existingexisting (including, but not limited to, the borrowings that are reasonably expected by Borrowers hereunder and the interest, fees and other charges that are reasonably expected to be received by Administrative Agent and Lenders hereunder) and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel. The In addition, Administrative Agent and Lenders shall be entitled to the Early Termination Fee shall also be payable in the event (a) upon any acceleration (whether automatic or otherwise) of the Obligations upon the occurrence of any Event of Default (and/or this Agreement or the other Loan Documentsincluding, but not limited to, any Event of Default described in Section 8.01(f) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwisehereof), deed whether or not any such Event of Default is caused intentionally by a Loan Party and (b) upon the occurrence of any Event of Default described in lieu Section 8.01(f) hereof even if Administrative Agent and Lenders do not exercise their right to terminate this Agreement, but elect, at their option, to provide financing to Borrowers or permit the use of foreclosure or by any other means whatsoevercash collateral under the United States Bankruptcy Code. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES BORROWERS EXPRESSLY WAIVES WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISEOF THE OBLIGATIONS. Each of the Loan Parties The Borrowers expressly agrees agree that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (Ba) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (Cb) there has been a course of conduct between the Lenders and the Loan Parties Borrowers giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (Dc) the Loan Parties Borrowers shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 2.06(a), and the Fee Letter, (Ed) the their agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Revolving Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee provided for in this Section 2.06(a) shall be payable deemed included in Dollars in immediately available fundsthe Obligations.”

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event, If the Borrower shall voluntarily repay in full and terminate the Revolving Facility and all Revolving Commitments, it shall pay an early termination fee (the “Early Termination Fee”) equal to (x)(a) if such voluntary repayment and termination occurs after the ClosingFifth Amendment Effective Date but on or prior to the first anniversary of the ClosingFifth Amendment Effective Date, 2% of the Maximum Revolver Amount. (b) if such voluntary repayment and termination occurs after the first anniversary of the ClosingFifth Amendment Effective Date but on or prior to the second anniversary of the ClosingFifth Amendment Effective Date, 1% of the Maximum Revolver Amount and (c) if such voluntary repayment and termination occurs after the second anniversary of the ClosingFifth Amendment Effective Date, 0% of the Maximum Revolver Amount. Notwithstanding anything herein to the contrary, if the Parent or any of its Affiliates elects to increase the Revolving Commitments pursuant to Section 2.19 (and all conditions thereof would have been satisfied) and the Lenders elect not to participate in such Revolving Facility Increase, the Parent may then elect to repay in full and terminate the Revolving Facility and all Revolving Commitments, and provided that the new loan facility replacing the Revolving Facility has a commitment of at least 110% of the Maximum Revolver Amount and is on the same or better terms than the Revolving Facility (as reasonably determined by the Administrative Agent), for then and only in such event, the ratable benefit BorrowerBorrowers shall pay 50% of the Lenders, the then applicable Early Termination FeeFee (if any). Notwithstanding anything to For the contrary in this Agreement, the Fee Letter or any other Loan Documentavoidance of doubt, it is understood and agreed that if Revolving Loans which are prepaid without a permanent reduction in the Obligations are accelerated as a result of the occurrence and continuance of Revolving Commitment shall not be subject to any Event of Default prepayment premium (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.

Early Termination Fee. Upon If (i) Borrower terminates the Revolving Facility under Section 11.1 hereof, (ii) Agent or any Lender accelerates any Revolving Loan or Borrower is otherwise required to make payment in full of the Obligations relating to the Revolving Facility or Lender’s obligation to make Advances pursuant to the Revolving Facility shall terminate in each case upon the occurrence of an Applicable Premium Trigger EventEvent of Default, or (iii) a Change of Control or final payment of the Revolving Facility pursuant to Section 11.1 occurs, any voluntary or involuntary termination of the Revolving Facility and final prepayment of the Obligations relating to the Revolving Facility by Borrower or any other Person occurs (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Agent’s exercising its right of set off or otherwise; or (iv) any payment in full of the principal amount of any Revolving Loan or other satisfaction of the outstanding balance of any Revolving Loan and/or the Revolving Facility is made during a bankruptcy, reorganization or other proceeding or is made pursuant to any plan of reorganization or liquidation or any Debtor Relief Law (each, a “Revolver Termination”), then, at the effective date of any such Revolver Termination, Borrower shall pay to the Administrative Agent, for the ratable benefit account of Lenders (in addition to the Lendersthen outstanding principal, accrued interest and other Obligations pursuant to the Early terms of this Agreement and any other Loan Document), as yield maintenance for the loss of bargain and not as a penalty, an amount equal to the Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Documentprovision hereof, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early no Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been due if Borrower merges or enters into a course of conduct between Lenders business combination with another person and the Loan Parties giving specific consideration surviving person becomes the Borrower hereunder, or enters into economically similar, financing arrangements with Agent in this transaction for such agreement to pay the Early Termination Feewhich Agent remains, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 at least, a co-lead lender and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundscollateral agent.

Early Termination Fee. Upon If (i) Borrower terminates the Revolving Facility under Section 11.1 hereof, (ii) Agent or any Lender accelerates any Revolving Loan or Borrower is otherwise required to make payment in full of the Obligations relating to the Revolving Facility or Lender's obligation to make Advances pursuant to the Revolving Facility shall terminate upon the occurrence of an Applicable Premium Trigger EventEvent of Default, or (iii) a Change of Control or final payment of the Revolving Facility pursuant to Section 11.1 occurs, any voluntary or involuntary termination of the Revolving Facility and final prepayment of the Obligations relating to the Revolving Facility by Borrower or any other Person occurs (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Agent's exercising its right of set off or otherwise; (vi) any payment in full of the principal amount of any Revolving Loan or other satisfaction of the outstanding balance of any Revolving Loan and/or the Revolving Facility is made during a bankruptcy, reorganization or other proceeding or is made pursuant to any plan of reorganization or liquidation or any Debtor Relief Law, or (vii) if the Revolving Facility is otherwise terminated prior to last day of the Term for any reason whatsoever (each, a "REVOLVER TERMINATION"), then, at the effective date of any such Revolver Termination, Borrower shall pay to the Administrative Agent, for the ratable benefit account of Lenders (in addition to the Lendersthen outstanding principal, accrued interest and other Obligations pursuant to the Early terms of this Agreement and any other Loan Document), as yield maintenance for the loss of bargain and not as a penalty, an amount equal to the Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Documentprovision hereof, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early no Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been due if Borrower merges or enters into a course of conduct between Lenders business combination with another person and the Loan Parties giving specific consideration surviving person becomes the Borrower hereunder, or enters into economically similar, financing arrangements with Agent in this transaction for such agreement to pay the Early Termination Feewhich Agent remains, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 at least, a co-lead lender and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundscollateral agent.

Early Termination Fee. Upon In the occurrence event that the Borrower prepays or repays all or part of the Loans pursuant to Section 2.04 (unless such prepayment or repayment is required to be made (and not otherwise waived by the Required Lenders) pursuant to Section 2.04(b), 2.04(c), 2.04(d) or 2.06(a)) or as a result of an Applicable Premium Trigger Eventacceleration of the Loans pursuant to Section 8.02, then the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) equal to (i) if such prepayment or repayment occurs on or after the First Amendment Effective Date and prior to the contrary in this Agreementtwelfth (12th) month anniversary of the First Amendment Effective Date, three percent (3%) of the Fee Letter outstanding principal amount of the Loans prepaid or any other Loan Documentrepaid at such time, it is understood (ii) if such prepayment or repayment occurs on or after the twelfth (12th) month anniversary of the First Amendment Effective Date and agreed prior to the twenty-fourth (24th) month anniversary of the First Amendment Effective Date, two percent (2%) of the outstanding principal amount of the Loans prepaid or repaid at such time or (iii) if such prepayment or repayment occurs on or after the twenty-fourth (24th) month anniversary of the First Amendment Effective Date and prior to the thirty-sixth (36th) month anniversary of the First Amendment Effective Date, one percent (1%) of the outstanding principal amount of the Loans prepaid or repaid at such time; provided, that if such prepayment occurs on or after the Obligations are accelerated as a result thirty-sixth (36th) month anniversary of the occurrence and continuance of any Event of Default (including automaticallyFirst Amendment Effective Date, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the no Early Termination Fee shall be payable notwithstanding due and payable. All parties to this Agreement agree and acknowledge that the then prevailing market rates at Lenders will have suffered damages on account of the time payment is made, (C) there has been a course prepayment of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for Loans during such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to timeframe set forth in this Section 2.04 2.08(b) and the Fee Letterthat, (E) the agreement in view of the Loan Parties to pay difficulty in ascertaining the amount of such damages, the Early Termination Fee is a material inducement constitutes reasonable compensation and liquidated damages to compensate the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundson account thereof.

Early Termination Fee. Upon (i) In the event that, at any time on or prior to the third anniversary of the Closing Date, either the Borrowers prepay or repay (whether voluntarily or mandatorily), or are required to prepay or repay, the Term Loan in whole or in part, as a result of an acceleration of the Obligations after the occurrence of an Applicable Premium Trigger Event of Default, as a result of an occurrence of a Prepayment Event set forth in Section 1.6(b), a mandatory prepayment required by Section 1.6(c), as a result of the occurrence of a Change in Control, or as a result of any refinancing of the Obligations (such prepayment or required prepayment, or commitment reduction or termination, as the case may be, an “Early Termination Fee Event”), then, on the date of such Early Termination Fee Event, the Borrower Borrowers shall pay an early termination fee (the “Early Termination Fee”) to the Administrative Term Agent, for the ratable benefit of the applicable Term Lenders, in an amount equal to (A) at any time on or prior to the first anniversary of the Closing Date, the Make-Whole Amount, (B) at any time after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, two percent (2.00%) of the amount of the Term Loan so prepaid or repaid or required to be prepaid or repaid, as the case may be, or (C) at any time after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date, one percent (1.00%) of the amount of the Term Loan so prepaid or repaid or required to be prepaid or repaid, as the case may be. (ii) All parties to this Agreement agree and acknowledge that the Term Lenders will have suffered damages on account of the Early Termination Fee Event and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination FeeFee constitutes reasonable compensation and liquidated damages to compensate the Term Lenders on account thereof. Notwithstanding anything The Early Termination Fee shall be earned and due and payable upon the earlier of the date any prepayment or repayment is made or is required to be made, or the date of such commitment reduction or termination, as the case may be. Anything to the contrary contained herein notwithstanding, with respect to Events of Loss and Dispositions (A) for the purposes of calculating the amount of the Early Termination Fee that is due and payable in this Agreementconnection therewith, the Term Loan shall be deemed to have been repaid on the date of the Prepayment Event, and (B) the Early Termination Fee Letter shall be earned in full on the date of the Prepayment Event and due and payable when the Term Loan is repaid with the proceeds of such Event of Loss or any other Loan DocumentDisposition. (iii) Without limiting the generality of the foregoing, it is understood and agreed that if the Term Loan and the related Obligations are accelerated as a result for any reason, including because of default or the occurrence and continuance commencement of any Event of Default (including automatically, Insolvency Proceeding or by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, acceleration will also be due and payable and will be treated and deemed as though the Loans were Term Loan was voluntarily prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance Obligations, in view of the applicable Loansimpracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Term Lender’s lost profits as a result thereof. Any The Borrowers agree that payment of any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it due hereunder is reasonable under the circumstances currently existing. The Early Termination Fee Fee, if any, shall also be payable in the event the Obligations (and/or this the Term Loan Agreement or the other Loan DocumentsTerm Notes evidencing the Obligations) are satisfied or released by disposition of Collateral, foreclosure (whether by power of judicial proceeding or otherwise), agreement or deed in lieu of foreclosure or by any other means whatsoevermeans. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES BORROWERS EXPRESSLY WAIVES WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR OTHERWISEINVOLUNTARY ACCELERATION OF THE TERM LOAN AND THE RELATED OBLIGATIONS PURSUANT TO ANY INSOLVENCY PROCEEDING OR PURSUANT TO A PLAN OF REORGANIZATION. Each of the Loan Parties The Borrowers expressly agrees that agree that: (A) the Early Termination Fee is reasonable and is the product of an arm’s arm’s-length transaction between sophisticated business people, ably represented by counsel, ; (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, ; (C) there has been a course of conduct between Term Lenders and the Loan Parties Borrowers giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, ; and (D) the Loan Parties Borrowers shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the paragraph. The Borrowers expressly acknowledge that their agreement of the Loan Parties to pay the Early Termination Fee to the Term Lenders as herein described is a material inducement to the Term Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsTerm Loan.

Early Termination Fee. Upon If the occurrence of an Applicable Premium Trigger EventTotal Commitment is terminated prior to February 26, 2001, the Borrower Borrowers shall jointly and severally pay to the Administrative Agent, Agent for the ratable benefit Pro Rata Share of the Lenders, on the Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result date of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise)such termination, the Early Termination Fee, if anyprovided, determined as of that the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also not be payable in if (i) the event Loans are prepaid from the Obligations (and/or this Agreement or proceeds generated by the other Loan Documents) are satisfied or released by foreclosure (whether by power public sale of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each Capital Stock of the Loan Parties expressly agrees that Company or any of its Subsidiaries, or (ii) the Loans are prepaid in connection with a transaction resulting in a Change in Control caused by the sale of the Capital Stock of the Company or any of the Borrowers, or (iii) the Loans are prepaid after the occurrence of each of the following events: (A) the Early Termination Fee Company or any of its Subsidiaries establishes or acquires a Subsidiary not existing on the Effective Date, which Subsidiary is reasonable not a Subsidiary of ECI and is requires working capital financing in an amount in excess of $5,000,000 (the product of an arm’s length transaction between sophisticated business people, ably represented by counsel"Subsidiary Financing"), (B) the Early Termination Fee shall be payable notwithstanding Company provides the then prevailing market rates at Lenders with a good faith right of first offer to provide the time payment is madeSubsidiary Financing, and (C) there has been (1) the Lenders fail to deliver a course financing proposal to the Company within twenty (20) Business Days of conduct between the receipt by the Lenders of all information necessary or reasonably requested to make a financing proposal for the Subsidiary Financing or (2) the Lenders deliver a financing proposal to the Company to provide the Subsidiary Financing and the Company rejects such financing proposal from the Lenders and accepts a financing proposal from another lender or lenders to both refinance the financing provided pursuant to this Agreement and the Loan Parties giving specific consideration Documents and to provide the Subsidiary Financing (a "Third-Party Financing Proposal"), which Third-Party Financing Proposal contains in each such case, economic terms (including, without limitation interest rates, fees, factoring commissions, commitment amounts and maturities) that are in all material respects more favorable to the Company and its Subsidiaries than the economic terms contained in this transaction for such agreement to pay the Early Termination Fee, (D) Agreement and the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 Documents and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost economic terms offered by the Lenders as a result of in their financing proposal for such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundsSubsidiary Financing.

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event, the Borrower The Customers shall pay to the Administrative Agent, for Metal Supplier an early termination fee (the ratable benefit of the Lenders, the “Early Termination Fee. Notwithstanding anything to ”) in the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that amount of $400,000 if the Obligations are accelerated as a result Customers terminate this Agreement prior to December 29, 2006, or $200,000 if the Customers terminate this Agreement on or after December 29, 2006, and prior to December 29, 2007. The Customers may terminate this Agreement at any time on or after December 29, 2007, without payment of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the an Early Termination Fee.” 5. To induce the Metal Supplier to enter into this Amendment, if anyeach Customer hereby represents and warrants to the Metal Supplier that (a) it has the power and authority and legal right to execute and deliver this Amendment, determined (b) the execution and delivery by such Customer of this Amendment, and the performance of its obligations hereunder, have been duly authorized by proper proceedings, (c) this Amendment constitutes a legal, valid and binding obligation of such Customer enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and except as the same may be subject to general principles of equity, (d) on and as of the date hereof, no Default or Event of accelerationDefault exists under the Agreement, will also be due and payable (e) the Customers have paid in full all of their indebtedness and will be treated and deemed as though the Loans were prepaid obligations heretofore owed under that certain Loan Agreement dated as of such date December 4, 2003, as amended, with certain Lenders described therein and shall constitute part Guggenheim Corporate Funding, LLC, as Collateral Agent. 6. The effectiveness of this Amendment is conditioned upon the execution and delivery by JPMorgan Chase Bank, N.A. (“Agent”), of an amendment to the existing Intercreditor Agreement dated April 29, 2005, between the Meal Supplier and Agent, in form and substance reasonably acceptable to the Metal Supplier, pursuant to which the Agent agrees that the “Maximum Dollar Amount” of the Obligations for all purposes herein Customers’ obligations to the Metal Supplier entitled to the benefits of said Intercreditor Agreement is increased to $80,000,000. 7. This Amendment and without further notice or action the rights and obligations of the parties hereunder shall be construed and interpreted in accordance with the laws of the State of New York (excluding the laws applicable to conflicts or choice of law). 8. The Agreement (including the Exhibits and Schedules thereto), as amended hereby, together with the other Precious Metal Documents, is intended by the parties as the final, complete and exclusive statement of the transactions evidenced by the Agreement. Except for the Existing Copper Swap, all prior or contemporaneous promises, agreements and understandings, whether oral or written, are deemed to be capitalized superseded by the Agreement, as amended hereby, and added no party is relying on any promise, agreement or understanding not set forth in the Agreement, as amended hereby. The Agreement, as amended hereby, may not be amended or modified except by a written instrument describing such amendment or modification executed by the Customers and the Metal Supplier. The parties hereto agree that this Amendment shall in no manner affect or impair the liens and security interests evidenced or granted by the Agreement. 9. Except as amended hereby, the Agreement shall remain in full force and effect and is in all respects hereby ratified and affirmed. 10. The Customers covenant and agree jointly and severally to pay all out-of-pocket expenses, costs and charges incurred by Metal Supplier (including reasonable fees and disbursement of counsel) in connection with the preparation and implementation of this Amendment. 11. This Amendment may be executed in separate counterparts and all such counterparts shall constitute one agreement binding on all parties, notwithstanding that the parties are not signatories to the principal balance of the applicable Loanssame counterpart. Any Early Termination Fee payable in accordance with The parties may execute this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained Amendment by the Lenders as the result of the occurrence of the Applicable Premium Trigger Eventfacsimile transmission, and all such facsimile signatures shall have the Loan Parties agree that it is reasonable under the circumstances currently existingsame force and effect as manual signatures delivered in person. (The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and next page is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundssignature page.)

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event(Early Termination Fee), the Borrower shall pay have the right to reduce permanently (each a "Revolving Credit Optional Reduction" and collectively the "Revolving Credit Optional Reductions") the Total Revolving Credit Committed Amount in effect from time to time in the amount of any integral multiple of Five Hundred Thousand Dollars ($500,000), upon at least five (5) Business Days prior written notice to the Administrative AgentAgent specifying the date and amount of such Revolving Credit Optional Reduction; provided, for that no Revolving Credit Optional Reduction shall be permitted if, after giving effect thereto and to any Revolving Loan Optional Prepayment made on the ratable benefit effective date thereof, the then outstanding principal amount of the LendersRevolving Loan and Outstanding Letter of Credit Obligations exceeds the Total Revolving Credit Committed Amount as so reduced. Such notice shall be irrevocable as to the amount and date of such Revolving Credit Optional Reduction. After each such Revolving Credit Optional Reduction, the Early Termination FeeRevolving Credit Unused Line Fee provided for in Section (J) REVOLVING CREDIT UNUSED LINE FEE. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood (Revolving Credit Unused Line Fees) and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations provided for all purposes herein and without further notice or action in Section (K) EARLY TERMINATION FEE. (Early Termination Fee) shall be deemed to be capitalized and added calculated with respect to the principal balance of the applicable LoansRevolving Credit Committed Amount as so reduced. Any Early Termination Fee payable Revolving Credit Optional Reduction shall be made to each Lender's Revolving Credit Commitment in accordance with this Section 2.04 and its Pro Rata Share of such Revolving Credit Optional Reduction. (M)REQUIRED AVAILABILITY UNDER THE REVOLVING CREDIT FACILITY. On an average monthly basis, tested of the Fee Letter last day of each calendar month, commencing with the first such date following the Closing Date, the outstanding principal amount of the Revolving Loan shall be presumed to be not exceed an amount equal to (i) the liquidated damages sustained by the Lenders as the result lesser of the occurrence of Borrowing Base, or (ii) the Applicable Premium Trigger EventTotal Revolving Credit Committed Amount, and MINUS $10,000,000 (the Loan Parties agree that it is reasonable under the circumstances currently existing"Required Availability"). The Early Termination Fee Borrower shall also be payable in the event the Obligations (and/or this Agreement or the other make a Revolving Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement Mandatory Prepayment pursuant to the Lenders to make the Loans, and provisions of Section (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.)

Early Termination Fee. Upon In the occurrence event (x) the Borrowers prepay any portion of an Applicable Premium Trigger Eventthe Term Loan or Delayed Draw Term Loan pursuant to Sections 2.06(a) or (d) hereof, or (y) the Borrowers terminate or reduce the Revolving Commitments pursuant to Section 2.01(b), Section 2.06(a) or Section 2.07(a) hereof, or (z) the Termination Date occurs for any reason (except pursuant to clause (i) thereof), including the acceleration of the Obligations, then on the date of any such prepayment, acceleration, termination or reduction, the Borrower Borrowers shall pay to the Administrative Agent, for the ratable benefit of the applicable Lenders, a fee (the “Early Termination Fee”) equal to the following: (i) the greater of (A) the difference between (1) the maximum total interest which would be earned on the Obligations (or portion thereof prepaid or due) through and including the date of such prepayment, acceleration, termination or reduction (assuming no Revolving Loans have been drawn if no such Loans are outstanding on the prepayment date and if Revolving Loans have been drawn, assuming the amount outstanding on the date of prepayment had remained outstanding through such anniversary), and (2) the total interest actually paid by the Borrowers to the Lenders on the Obligations (or portion thereof prepaid) prior to the date of date of such prepayment, acceleration, termination or reduction or due date of such Obligations (or portion thereof prepaid or due) and (B) an amount equal to the following percentages of the Loans being prepaid (or required to be prepaid) and Commitments being reduced or terminated on such date (1) 4.5% if such prepayment, acceleration, termination or reduction shall occur at any time after the First Amendment Effective Date but on or prior to July 31, 2014, (2) 4.0% if such prepayment, acceleration, termination or reduction shall occur at any time after July 31, 2014 but on or prior to August 31, 2014, (3) 3.5% if such prepayment, acceleration, termination or reduction shall occur at any time after August 31, 2014 but on or prior to September 30, 2014, and (4) 3.0% if such prepayment, acceleration, termination or reduction shall occur at any time after September 30, 2014 but prior to the first anniversary of the Closing Date; (ii) two percent (2%) of the sum of the Loans being prepaid (or required to be prepaid) and Commitments being reduced or terminated on such date if such prepayment, acceleration, termination or reduction shall occur on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date; and (iii) 0% thereafter. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early prepayment of the Loans, early termination of this Agreement or any portion of the Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood constitutes reasonable compensation and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by to compensate the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundson account thereof.

Early Termination Fee. Upon (a) Subject to the occurrence provisions of an Applicable Premium Trigger EventSection 2.15(b), in the event that the Termination Date occurs, on or prior to the second anniversary of the Restatement Effective Date, the Borrower Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, a fee (the “Revolving Credit Early Termination Fee. Notwithstanding anything to ”) determined and payable as follows: (i) 0.75% of the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that highest Maximum Revolving Credit Ceiling if the Obligations are accelerated as a result Termination Date occurs on or before January 1, 2008. (ii) 0.50% of the occurrence and continuance of any Event of Default highest Maximum Revolving Credit Ceiling if the Termination Date occurs after January 1, 2008, but on or before January 1, 2009. (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documentsb) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the No Revolving Credit Early Termination Fee shall be payable notwithstanding (i) after January 1, 2009 or (ii) if the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders Date occurs as a result of such Applicable Premium Trigger Event. funds borrowed from Bank of America or any of its Affiliates. (c) The Revolving Credit Early Termination Fee shall be payable allocated to the Revolving Credit Lenders pro rata based upon their Revolving Credit Dollar Commitment. (d) The Borrowers shall have no right to reduce the Maximum Revolving Credit Ceiling, provided, however, that in Dollars connection with the sale or issuance of any of its equity interests to any Person, in immediately available fundsterms satisfactory to the Agent, the Borrowers shall, with at least three (3) Business Days prior written notice to the Agent, have the right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an integral multiple thereof, provided, however, that no such reduction in the Maximum Revolving Credit Ceiling shall be greater than $75,000,000 in the aggregate and that no reduction in the Maximum Revolving Credit Ceiling may be reinstated.

Early Termination Fee. Upon the occurrence of an Applicable Premium Trigger Event, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, the “Early Termination Fee. Notwithstanding anything to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be ” means an amount equal to the liquidated damages sustained product of 1.25 multiplied by the Lenders as total Revenue earned during the result twelve (12) month period prior to the month in which the termination notice was duly delivered (provided that if such termination notice is delivered during the first twelve (12) months after the Effective Date, the amount of Revenues will be calculated on an annualized basis) payable: (i) pursuant to Section 14.2(a) (Early Termination for Convenience) or (ii) during the Initial Term, upon the exercise by New University of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Buyout Option in connection with a termination pursuant to Section 14.4 (Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwisefor Certain Financial Results), deed in lieu of foreclosure Section 14.5(b)(v) (Termination for New University Material Breach), or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that Section 14.5(c) (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger EventContributor Material Breach). The Early Termination Fee shall be payable in Dollars the form of a ten (10) year senior note, substantially in immediately available fundsthe form of Exhibit I-1, secured by the assets of New University, with monthly payments equal to the quotient of the entire Early Termination Fee due divided by 120, and bearing interest at Current Fair Market Rate (“Early Termination Note”). Fifty percent (50%) of the principal of the Early Termination Note shall be unconditionally and irrevocably guaranteed by Purdue, another third party guarantor acceptable to Contributor or by the provision of a letter of credit, all on terms and conditions and in such form as is acceptable to Contributor. Purdue hereby agrees to unconditionally and irrevocably guarantee fifty percent (50%) of the principal of any Early Termination Note issued by New University to Contributor if New University chooses Purdue to be the guarantor of such Note. “Current Fair Market Rate” means LIBOR plus two percent (2%). To secure timely payments of the Early Termination Fee in accordance with the terms of the Early Termination Note (which Early Termination Fee, the Parties acknowledge and agree, is a contingent obligation until the termination date on which the Early Termination Fee becomes payable), New University hereby grants to Contributor a continuing security interest in, and a right to set off against, any and all right, title and interest of New University in and to all of the assets described, and pursuant to the terms set forth, in Exhibit I-3. At the time of execution and delivery to Contributor of an Early Termination Note, the Parties also shall execute and deliver a Security Agreement, which amends and supplements the terms of the security interest herein, containing reasonable and customary terms designed to secure New University’s obligations under the Early Termination Note and otherwise in form and substance reasonably acceptable to the Parties.

Early Termination Fee. Upon (a) Subject to the occurrence provisions of an Applicable Premium Trigger EventSection 2.15(b), in the event that the Termination Date occurs, on or prior to the second anniversary of the Restatement Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, a fee (the “Revolving Credit Early Termination Fee. Notwithstanding anything to ”) determined and payable as follows: (i) 0.75% of the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that highest Maximum Revolving Credit Ceiling if the Obligations are accelerated as a result Termination Date occurs on or before January 1, 2008. (ii) 0.50% of the occurrence and continuance of any Event of Default highest Maximum Revolving Credit Ceiling if the Termination Date occurs after January 1, 2008, but on or before January 1, 2009. (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documentsb) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the No Revolving Credit Early Termination Fee shall be payable notwithstanding (i) after January 1, 2009 or (ii) if the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders Date occurs as a result of such Applicable Premium Trigger Event. funds borrowed from Bank of America or any of its Affiliates. (c) The Revolving Credit Early Termination Fee shall be payable allocated to the Revolving Credit Lenders pro rata based upon their Revolving Credit Dollar Commitment. (d) The Borrower shall have no right to reduce the Maximum Revolving Credit Ceiling, provided, however, that in Dollars connection with the sale or issuance of any of its equity interests to any Person, in immediately available fundsterms satisfactory to the Agent, the Borrower shall, with at least three (3) Business Days prior written notice to the Agent, have the right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an integral multiple thereof, provided, however, that no such reduction in the Maximum Revolving Credit Ceiling shall be greater than $75,000,000 in the aggregate and that no reduction in the Maximum Revolving Credit Ceiling may be reinstated.

Early Termination Fee. Upon In the occurrence event prior to the fourth anniversary of an Applicable Premium Trigger Eventthe Second Amendment Effective Date, the Borrower Borrowers prepay or are otherwise required to prepay all or any part of the Term Loan for any reason, the Borrowers shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee. Notwithstanding anything ”) in respect of amounts which are prepaid or are or become payable by reason thereof equal to (a) if such prepayment occurs on or prior to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result first anniversary of the occurrence Second Amendment Effective Date, four percent (4.0%) of the amounts so prepaid, (b) if such prepayment occurs after the first anniversary of the Second Amendment Effective Date and continuance on or prior to the second anniversary of the Second Amendment Effective Date, three percent (3.0%) of the amounts so prepaid, (C) if such prepayment occurs after the second anniversary of the Second Amendment Effective Date and on or prior to the third anniversary of the Second Amendment Effective Date, two percent (2.0%) of the amounts so prepaid, and (D) if such prepayment occurs after the third anniversary of the Second Amendment Effective Date and on or prior to the fourth anniversary of the Second Amendment Effective Date, one percent (1.0%) of the amounts so prepaid. For greater certainty, if any Event such prepayment occurs after the fourth anniversary of Default (including automaticallythe Second Amendment Effective Date, by operation no Early Termination Fee or other fee arising solely on account of law or otherwise)prepayment of the Term Loan shall be payable. All parties to this Agreement agree and acknowledge that the Lenders will have suffered damages on account of the early termination of this Agreement and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee, if any, determined as of the date of acceleration, will also be due Fee constitutes reasonable compensation and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by to compensate the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available fundson account thereof.

Early Termination Fee. Upon In the occurrence of an Applicable Premium Trigger Eventevent that the Termination Date occurs, for any reason, prior to the Maturity Date, or in the event that the Borrowers reduce (but do not terminate) the Aggregate Revolving Commitments prior to the Maturity Date, the Borrower Borrowers shall pay to the Administrative Agent, for the ratable benefit account of each Revolving Lender in accordance with its Applicable Percentage, a fee (the “Early Termination Fee”) in respect of amounts which are or become payable by reason thereof equal to the following: (i) three percent (3%) of the LendersRevolving Credit Commitments then in effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time on or before the first anniversary of the First Amendment Effective Date; (ii) two percent (2%) of the Revolving Credit Commitments then in effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the first anniversary of the First Amendment Effective Date and on or prior to the second anniversary of the First Amendment Effective Date; (iii) one percent (1%) of the Revolving Credit Commitments then in effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the second anniversary of the First Amendment Effective Date and on or prior to the third anniversary of the First Amendment Effective Date and (iii) zero percent (0%) of the Revolving Credit Commitments then in effect (without regard to any termination thereof) or of the amount of any reduction in the Aggregate Revolving Commitments, as applicable, if the Termination Date or reduction shall occur at any time after the third anniversary of the Closing Date. All parties to this Agreement agree and acknowledge that the Revolving Lenders will have suffered damages on account of the early termination of this Agreement or any portion of the Revolving Credit Commitments and that, in view of the difficulty in ascertaining the amount of such damages, the Early Termination Fee. Notwithstanding anything Fee constitutes reasonable compensation and liquidated damages to compensate the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result Revolving Lenders on account thereof.” (p) Section 2.09 (Fees) of the occurrence Credit Agreement is hereby amended by deleting clause (c) as it appears therein and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed inserting in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of thereof the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable in Dollars in immediately available funds.following:

Early Termination Fee. Upon (a) Subject to the occurrence provisions of an Applicable Premium Trigger EventSection 2.15(b), in the event that the Termination Date occurs, on or prior to the second anniversary of the Restatement Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Credit Lenders, a fee (the “Revolving Credit Early Termination Fee. Notwithstanding anything to ”) determined and payable as follows: (i) 0.75% of the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that highest Maximum Revolving Credit Ceiling if the Obligations are accelerated as a result Termination Date occurs on or before January 1, 2006. (ii) 0.50% of the occurrence and continuance of any Event of Default highest Maximum Revolving Credit Ceiling if the Termination Date occurs after January 1, 2006, but on or before January 1, 2007. (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added to the principal balance of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documentsb) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (B) the No Revolving Credit Early Termination Fee shall be payable notwithstanding (i) after January 1, 2007 or (ii) if the then prevailing market rates at the time payment is made, (C) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement of the Loan Parties to pay the Early Termination Fee is a material inducement to the Lenders to make the Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders Date occurs as a result of such Applicable Premium Trigger Event. funds borrowed from FRGI or any of its Affiliates. (c) The Revolving Credit Early Termination Fee shall be payable allocated to the Revolving Credit Lenders pro rata based upon their Revolving Credit Dollar Commitment. (d) The Borrower shall have no right to reduce the Maximum Revolving Credit Ceiling, provided, however, that in Dollars connection with the sale or issuance of any of its equity interests to any Person, in immediately available fundsterms satisfactory to the Agent, the Borrower shall, with at least three (3) Business Days prior written notice to the Agent, have the right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an integral multiple thereof, provided, however, that no such reduction in the Maximum Revolving Credit Ceiling shall be greater than $75,000,000 in the aggregate and that no reduction in the Maximum Revolving Credit Ceiling may be reinstated.

Early Termination Fee. Upon If Lender terminates this Agreement upon or after the occurrence of an Applicable Premium Trigger Eventany Termination Fee Default, or if Borrower shall terminate this Agreement as permitted herein effective prior to the end of the initial term or the end of any renewal term, in addition to all other Obligations, Borrower shall pay to Lender, upon the Administrative Agenteffective date of termination, for the ratable benefit in view of the Lendersimpracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Lender's lost profits, an early termination fee equal to: (a) Three (3%) percent of the Early Termination Fee. Notwithstanding anything Maximum Credit if such termination occurs after the date hereof, but on or prior to the contrary in this Agreement, the Fee Letter or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including automatically, by operation of law or otherwise), the Early Termination Fee, if any, determined as first anniversary of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part hereof; and (b) One (1%) percent of the Obligations for all purposes herein and without further notice or action shall be deemed to be capitalized and added Maximum Credit if such termination occurs after the first anniversary of the date hereof but prior to the principal balance second anniversary of the applicable Loans. Any Early Termination Fee payable in accordance with this Section 2.04 and the Fee Letter shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result date hereof; and (c) One (1%) percent of the occurrence Maximum Credit if such termination occurs at any time after the second anniversary of the Applicable Premium Trigger Event, and the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee shall also be payable in the event the Obligations (and/or this Agreement or the other Loan Documents) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by date hereof but prior to any other means whatsoever. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LOAN PARTIES EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION OR OTHERWISE. Each anniversary of the Loan Parties expressly agrees that (A) the Early Termination Fee is reasonable and is the product of an arm’s length transaction between sophisticated business peopledate hereof; EXCEPT THAT, ably represented by counsel, (B) the no Early Termination Fee shall be payable notwithstanding by Borrower to Lender if, and only if: (i) Borrower has requested in writing ("Notice") that Lender increase the then prevailing market rates at Maximum Credit to an amount not to exceed the time payment is made, sum of Borrower's average Accounts Availability plus average Inventory Availability for the immediately preceding sixty (C60) there has been a course of conduct between Lenders and consecutive days prior to the Loan Parties giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04 and the Fee Letter, (E) the agreement date of the Loan Parties to pay Notice (the Early Termination Fee is a material inducement to the Lenders to make the Loans"Proposed Increased Maximum Credit"), and Lender, in its sole discretion, has elected not to increase the Maximum Credit; and (Fii) the Early Termination Fee represents a good faith, reasonable estimate and calculation Borrower has provided Lender with sixty (60) days prior written notice of the lost profits or damages termination of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders this Agreement solely as a result of such Applicable Premium Trigger Event. The Early Termination Fee shall be payable Lender's refusal to increase the Maximum Credit to the Proposed Increased Maximum Credit; and (iii) as of the date of termination in Dollars in immediately available fundsaccordance with clause (ii) hereof, no Event of Default exists.