Common use of Early Termination Fee Clause in Contracts

Early Termination Fee. If this Agreement is terminated by Fremont upon the occurrence of an Event 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 effective date of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or any

Early Termination Fee. Without limiting any other term or provision in Section 7.2: (a) If this Agreement is terminated by Fremont upon the occurrence of an Event of Default, or is terminated terminates at Borrower's request other than pursuant to Section 3.1, in view of the impracticability any time 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 effective date of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination for any reason in accordance with the terms and conditions of Section 3.1 and this Agreement prior to the expiration of the Primary Term (z) other than because of an Event of Default with respect to JPM CCC), then Purchaser shall pay to JPM CCC a fee in an amount equal to [*], to compensate JPM CCC for lost profits suffered or incurred from, as a result of or in connection with such early termination (the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination“Early Termination Fee”). The Early Termination Fee shall be presumed to be paid in full on the date which is [*] Banking Days following the receipt by Purchaser of a statement setting forth the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The such Early Termination Fee provided for in this Section 3.2 shall be deemed included in on or following the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the related Early Termination Fee constitutes interest under applicable lawDate. (b) THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY PAYMENT OF THE EARLY TERMINATION FEE PROVIDED FOR IN THIS SECTION 4.2 SHALL BE A PAYMENT OF LIQUIDATED DAMAGES WHICH IS BASED ON THE PARTIES’ ESTIMATE OF THE LOST PROFITS JPM CCC WILL SUFFER OR INCUR FROM, the Early Termination FeeAS A RESULT OF OR IN CONNECTION WITH THE EARLY TERMINATION OF THIS AGREEMENT, when added to all other interest contracted forTHAT SUCH LIQUIDATED DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT THE EARLY TERMINATION FEE IS INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY. PURCHASER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO RAISE AS A DEFENSE THAT ANY SUCH LIQUIDATED DAMAGES ARE UNREASONABLE, charged or received under this Agreement or anyEXCESSIVE OR PUNITIVE OR THAT SUCH DAMAGES ARE BARRED OR OTHERWISE LIMITED BY ANY OTHER PROVISION OF THIS AGREEMENT. Section 4.3 [*].

Early Termination Fee. If this Agreement is terminated by Fremont upon In the occurrence event of an Event of Defaultthe termination by, or is terminated at on behalf of, the 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 Revolving Credit Commitment, the parties as to a reasonable calculation of Fremont's lost profits as a result thereof, Borrower shall pay to Fremont upon the effective date of such termination a fee (the "Early Termination Fee") in an equal to following amount equal toat the following times: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the first (1st) anniversary of this Agreement; or (b) one percent (PERIOD EARLY TERMINATION FEE ------ --------------------- Closing Date through and including June 30, 1998 $75,000.00 July 1%) of the Advance Limit if such termination occurs after the first (1st) anniversary of this Agreement; provided, however1998 through and including June 30, that no 1999 $50,000.00 July 1, 1999 through and including June 30, 2000 $35,000.00 Thereafter No Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary Payment of the Renewal DateRevolving Loan in whole or in part by or on behalf of the Borrower, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms by court order or otherwise, following and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the a result of the early termination and Borrower agrees that it is reasonable under institution of any bankruptcy proceeding by or against the circumstances currently existing. The Borrower, shall be deemed to be a prepayment of the Revolving Loan subject to the Early Termination Fee provided for in this Section 3.2 subsection, except that there shall not, however, be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the an Early Termination Fee constitutes interest due if the termination of the Revolving Credit Commitment and repayment of the Revolving Credit Facility is made solely as a result of (i) the closing and consummation of an initial public offering of Securities by Holding which generates sufficient proceeds and is in fact used to repay all Obligations in full, (ii) acceleration of the Obligations by the Lender or demand for payment under applicable lawSection 7.2.1, (iii) the Early Termination Feesale by the Borrower of all or substantially all of its Assets which generates sufficient proceeds and is in fact used to repay all Obligations in full, when added (iv) a simultaneous initial public offering of Borrower's common stock with net proceeds to the Parent and/or the Borrower of $25,000,000 or more, (v) the sale by Holdings of its securities or of all other interest contracted of the securities issued by the Borrower to Holding which generates sufficient proceeds and is in fact used to repay all Obligations in full, or (vi) the generation and retention of excess cash flow sufficient to have maintained the outstanding principal balance of the Revolving Loan at zero for at least one fiscal quarter and the Lender's reasonable satisfaction based on projections provided by the Borrower that there is no use, need for, charged or received under this Agreement or anycontemplation of senior debt (other than that evidenced by the Senior Notes) for the then next four (4) fiscal quarters.

Early Termination Fee. If this Agreement is terminated by Fremont upon (a) If, prior to May 1, 2020, (i) Agent demands or accelerates the occurrence of an Event of DefaultObligations, or Borrower is terminated at Borrower's request other than otherwise required to make payment in full of the Obligations, (ii) a Change of Control occurs, and/or final payment of all outstanding Obligations 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 2.7(a) occurs or is required to a reasonable calculation of Fremont's lost profits occur as a result thereof, Borrower shall pay (iii) any other termination of this Agreement and/or final prepayment (in full) of the Loan or the Obligations occur, whether by virtue of Agent’s exercising its right of set-off or otherwise, or (iv) any automatic acceleration of the Loan or the Obligations or cessation of lending on account of or during a bankruptcy, reorganization or other proceeding or liquidation or pursuant to Fremont upon any Debtor Relief Law (each, a “Termination”), then, at the effective date of any such termination Termination, Borrower shall pay Agent, for the ratable benefit of Lenders (in addition to the then outstanding principal, accrued interest and fees and other Obligations owing pursuant to the terms of this Agreement and any other Loan Document), as yield maintenance for the loss of bargain and not as a penalty, a fee ("an “Early Termination Fee"”) in an amount equal to: to (ax) two if such Termination occurs on or before October 31, 2019, one percent (21.0%) of the Advance Limit Maximum Loan Amount in effect as of such date of Termination, and (y) if such termination Termination occurs on or prior to the first (1st) anniversary after November 1, 2019, but on or before April 30, 2020, one-half of this Agreement; or (b) one percent (10.5%) of the Advance Limit if Maximum Loan Amount in effect as of such termination occurs date of Termination. (b) Notwithstanding the foregoing, in the event that on or after the first (1st) anniversary of this Agreement; providedJanuary 15, however2019, that no Early Termination Fee shall be payable if Borrower delivers to Agent a written request to (x) termination occurs on modify this Agreement to increase the Renewal Date maximum Leverage Ratio pursuant to Section 7.21 hereof to a ratio equivalent to a BDC Leverage Ratio of 1.40 to 1.00 or subsequent anniversary of the Renewal Datehigher, (y) modify the definition of “Unsecured Longer-Term Indebtedness” or otherwise grant a limited waiver with respect thereto to permit Borrower has provided Fremont at least to incur Unsecured Longer-Term Indebtedness, the aggregate amount of which is in excess of fifty percent (50%) of the Maximum Loan Amount (provided, that such Indebtedness otherwise satisfies the requirements for Unsecured Longer-Term Indebtedness under clauses (a) through (c) of the definition thereof), or (z) some combination of (I) an increase to the maximum Leverage Ratio pursuant to Section 7.21 hereof and (II) a modification or waiver with respect to the definition of “Unsecured Longer-Term Indebtedness” (of the sort described in the foregoing clause (y)) that, taken together, will otherwise equate to an increase in the maximum Leverage Ratio pursuant to Section 7.21 hereof to a ratio equivalent to a BDC Leverage Ratio of 1.40 to 1.00 or higher (a “Leverage Ratio Request”), Agent shall deliver to Borrower written notice (a “Leverage Ratio Response”), on or before the date that is sixty (60) days' prior written notice days after Agent’s receipt of termination such Leverage Ratio Request, of whether Agent and the Lenders (in accordance with their Permitted Discretion) intend to modify this Agreement to accommodate the terms and conditions substance of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified modifications requested in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contraryLeverage Ratio Request (any such proposed modification and/or waiver, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyan “Accommodating Modification”).

Early Termination Fee. If this Agreement is terminated by Fremont In the event prior to the third anniversary of the Second Amendment Effective Date, upon the occurrence of an Event of DefaultApplicable Premium Trigger Event, 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 Borrowers shall pay to Fremont upon the effective date Administrative Agent, for the ratable benefit of such termination a fee ("the Lenders, the Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 in respect of any prepayment of Second Amendment Tranche B U.S. Term Loan that is prepaid (xor in the case of an Applicable Premium Trigger Event occurring under clauses (ii), (iii) termination occurs on the Renewal Date or subsequent anniversary (iv) of the Renewal Datedefinition thereof, deemed to be prepaid) after December 15, 2015. Notwithstanding anything to the contrary in this Agreement 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 (y) Borrower has provided Fremont at least sixty (60) days' prior written notice including by operation of termination 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 Term Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein. Any Early Termination Fee payable in accordance with the terms and conditions of this Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee 3.2.1 shall be presumed to be equal to the amount of liquidated damages sustained by Fremont the Lenders as the result of the early termination occurrence of the Applicable Premium Trigger Event, and Borrower agrees the Loan Parties agree that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 Fee, if any, shall also be deemed included payable in the Obligationsevent the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. Notwithstanding anything contained herein to the contrary, if and to the extent THE LOAN PARTIES EXPRESSLY 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. The Loan Parties expressly agree that (A) the Early Termination Fee constitutes interest under applicable lawis 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, when added (D) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to all other interest contracted forin this Section 3.2.1, charged (E) their agreement to pay the Early Termination Fee is a material inducement to the Lenders to make the Term Loans, and (F) the Early Termination Fee represents a good faith, reasonable estimate and calculation of the lost profits or received under this Agreement damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or anyprofits lost by the Lenders as a result of such Applicable Premium Trigger Event. ”

Early Termination Fee. If this Agreement is terminated by Fremont upon In the occurrence event of an Event of Defaultthe termination by, or is terminated at on behalf of, the Borrower's request other than pursuant to Section 3.1, in view of the impracticability and extreme difficulty Revolving Credit Commitments at any time prior to the Revolving Credit Expiration Date (as extended from time to time in accordance with the provisions of ascertaining actual damages and by mutual agreement of this Agreement), the parties as to a reasonable calculation of Fremont's lost profits as a result thereof, Borrower shall pay to Fremont upon the effective date of such termination a fee (the "Early Termination Fee") in an equal to following amount equal toat the following times: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 ------------------------------------------------------------------------------- Period Early Termination Fee shall be payable if (x) termination occurs on ------------------------------------------------------------------------------- Closing Date, through and including, day $500,000 preceding the Renewal Date or subsequent first anniversary date of the Renewal Closing Date ------------------------------------------------------------------------------- First anniversary date of the Closing Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice $300,000 through and including, day preceding the second anniversary date of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full Closing Date ------------------------------------------------------------------------------- At any time on or before after the termination second anniversary $100,000 date specified of the Closing Date ------------------------------------------------------------------------------- Payment of the Revolving Loan in such notice whole or in part by or on behalf of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained Borrower, by Fremont court order or otherwise, following and as the a result of the early termination and Borrower agrees that it is reasonable under institution of any bankruptcy proceeding by or against the circumstances currently existing. The Borrower, shall be deemed to be a prepayment of the Revolving Loan subject to the Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligationssubsection. Notwithstanding anything contained herein the foregoing, the Borrower shall not be required to the contrary, if and to the extent pay the Early Termination Fee constitutes interest under applicable lawin connection with a termination of the Revolving Credit Commitments if the repayment of all Obligations is from (a) the proceeds of an issuance of common stock by Fostxx Xxxdings, (b) the Early Termination Feeproceeds of an issuance of common stock by the Borrower, when added (c) a replacement credit facility extended by NationsBank, or its successors, to the Borrower, which generates sufficient proceeds and is in fact used to repay all Obligations (including all Letter of Credit Obligations) in full and, if, in connection with such repayment of all Obligations, all Letters of Credit are terminated or (d) a replacement credit facility extended by another lender to the Borrower on terms and conditions that the Agent and the Lenders did not offer to the Borrower after having been provided a copy of such other interest contracted forlender's commitment and having had not less than thirty (30) days to review, charged or received under this Agreement or anyapprove and commit to in writing a comparable credit facility.

Early Termination Fee. If for any reason (a) this Extension Agreement is terminated by Fremont upon prior to the occurrence end of an Event then current term or any renewal term of Defaultthis Extension Agreement, or (b) Borrower and NSC fail to enter into the Definitive Loan Agreement or the Definitive Loan Agreement fails to close (i) prior to the end of the current term or any renewal term of this Extension Agreement or (ii) on or before September 30, 2003, or (c) NSC's Plan of Reorganization in the Chapter 11 Case (as approved by Lender) is terminated at Borrower's request other than pursuant not consummated on or prior to Section 3.1September 30, 2003, in view of the impracticability impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of FremontLender's lost profits as a result thereof, Borrower shall agrees to pay to Fremont upon Lender, on demand, an early termination fee in the effective date of amount set forth below if such termination a fee ("Early Termination Fee") or failure is effective in an amount equal tothe period indicated: AMOUNT PERIOD ------ ------ (a) two percent (2%) of $4,000,000 From the Advance Limit if such termination occurs on or prior Closing Date to and including the first (1st) anniversary of this Agreement; or day which is 180 days thereafter, (b) one percent (1%) of $2,400,000 From the Advance Limit if such termination occurs 181st day after the first (1st) anniversary of this Agreement; providedClosing Date to and including September 30, however, that no Early Termination Fee shall be payable if (x) 2003. Such early termination occurs on the Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee fee shall be presumed to be the amount of damages sustained by Fremont Lender as the a result of the such early termination and Borrower agrees that it is reasonable under the circumstances currently existing. In addition, Lender shall be entitled to such early termination fee upon the occurrence of any Event of Default described in Sections 11.1(g) 11.1(h) hereof, except if (a)Lender does not exercise its right to terminate this Extension Agreement, (b) Lender elects, at its option, to provide financing to Borrower or permit the 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 remain payable as otherwise provided herein. The Early Termination Fee early termination fee provided for in this Section 3.2 4.6 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged Borrower waives any claim for reduction of fees whether or received under this Agreement or anynot such fees are treated as a penalty.

Early Termination Fee. Without limiting any other term or provision in Section 7.2: (a) If this Agreement is terminated by Fremont upon the occurrence of an Event of Default, or is terminated terminates at Borrower's request other than pursuant to Section 3.1, in view of the impracticability any time 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 effective date of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination for any reason in accordance with the terms and conditions of Section 3.1 and this Agreement prior to the expiration of the Primary Term (z) other than because of an Event of Default with respect to JPM CCC), then Purchaser shall pay to JPM CCC a fee in an amount equal to [*], to compensate JPM CCC for lost profits suffered or incurred from, as a result of or in connection with such early termination (the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination“Early Termination Fee”). The Early Termination Fee shall be presumed to be paid in full on the date which is [*] Banking Days following the receipt by Purchaser of a statement setting forth the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The such Early Termination Fee provided for in this Section 3.2 shall be deemed included in on or following the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the related Early Termination Fee constitutes interest under applicable lawDate. (b) THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY PAYMENT OF THE EARLY TERMINATION FEE PROVIDED FOR IN THIS SECTION 4.2 SHALL BE A PAYMENT OF LIQUIDATED DAMAGES WHICH IS BASED ON THE PARTIES’ ESTIMATE OF THE LOST PROFITS JPM CCC WILL SUFFER OR INCUR FROM, the Early Termination FeeAS A RESULT OF OR IN CONNECTION WITH THE EARLY TERMINATION OF THIS AGREEMENT, when added to all other interest contracted forTHAT SUCH LIQUIDATED DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT THE EARLY TERMINATION FEE IS INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY. PURCHASER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO RAISE AS A DEFENSE THAT ANY SUCH LIQUIDATED DAMAGES ARE UNREASONABLE, charged or received under this Agreement or anyEXCESSIVE OR PUNITIVE OR THAT SUCH DAMAGES ARE BARRED OR OTHERWISE LIMITED BY ANY OTHER PROVISION OF THIS AGREEMENT.

Early Termination Fee. If this Agreement is terminated by Fremont upon the occurrence of an Event 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 effective date of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (22.0%) of the Advance Limit if such termination occurs on or prior to the first (1st) anniversary of this AgreementJuly 7, 1996; or (b) one percent (11.0%) of the Advance Limit if such termination occurs after the first (1st) anniversary of this AgreementJuly 7, 1996; provided, however, that no Early Termination Fee shall be payable if (x) such termination occurs on the Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' days prior written notice of termination in accordance with the terms and conditions of Section 3.1 3.1, and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyany other Loan Documents, shall not exceed, and shall be limited to an amount which constitutes, interest at the Maximum Rate.

Early Termination Fee. If this Agreement is terminated by Fremont upon In the occurrence event (x) the Borrowers prepay any portion of an Event of Defaultthe Term Loan or Delayed Draw Term Loan pursuant to Sections 2.06(a) or (d) hereof, or is terminated at Borrower's request other than (y) terminate or reduce the Revolving Commitments pursuant to Section 3.12.06(a) or Section 2.07(a) hereof, in view or (z) the Termination Date occurs for any reason (except pursuant to clause (i) thereof), including the acceleration of the impracticability and extreme difficulty Obligations, then on the date of ascertaining actual damages and by mutual agreement of any such prepayment, termination or reduction, the parties as to a reasonable calculation of Fremont's lost profits as a result thereof, Borrower Borrowers shall pay to Fremont upon the effective 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 (i) the maximum total interest which would be earned on the Obligations (or portion thereof prepaid or due) through and including the first anniversary of the Closing Date (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 (ii) the total interest actually paid by the Borrowers to the Lenders on the Obligations (or portion thereof prepaid) prior to the date of prepayment or due date of such Obligations (or portion thereof prepaid or due) and (B) three percent (3%) of the Loans being prepaid (or required to be prepaid) and Commitments being reduced or terminated on such date, in each case if such prepayment, acceleration, termination a fee or reduction shall occur at any time prior to the first anniversary of the Closing Date; ("Early Termination Fee") in an amount equal to: (aii) two percent (2%) of the Advance Limit 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 occurs or reduction shall occur on or after the first anniversary of the Closing Date but prior to the first (1st) second anniversary of this Agreementthe Closing Date; or and (biii) one percent (1%) of the Advance Limit if such termination occurs after the first (1st) anniversary of this Agreement0% thereafter; provided, howeverthat, that so long as no Event of Default then exists or would result therefrom, the Borrowers shall not be required to pay an Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary with respect to a portion of the Renewal Date, Term Loan not in excess of $2,000,000 that is prepaid by the Borrowers pursuant to Section 2.06(a) to the extent that such prepayment is made within ninety (y90) Borrower has provided Fremont at least sixty (60) days' prior written notice days of termination the Closing Date and in accordance connection with the syndication of the Revolving Credit Facility under terms satisfactory to the Agent. All parties to this Agreement agree and conditions acknowledge that the Lenders will have suffered damages on account of Section 3.1 the early prepayment of the Loans, early termination of this Agreement or any portion of the Commitments and (z) that, in view of the Obligations are indefeasibly paid difficulty in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be ascertaining the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrarysuch damages, if and to the extent the Early Termination Fee constitutes interest under applicable law, reasonable compensation and liquidated damages to compensate the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyLenders on account thereof.

Early Termination Fee. If this Agreement is terminated by Fremont upon (i) In the event that, at any time on or prior to the third anniversary of the Closing Date, either (x) the Borrowers prepay, or are required to prepay, the Term Loan in whole or in part, including, without limitation, as a result of an acceleration of the Obligations after the occurrence of an Event of DefaultDefault or as a result of any refinancing of the Obligations, or is (y) all or any portion of the Delayed Draw Term Loan Commitments are reduced or terminated at Borrower's request (other than pursuant (A) any reduction or termination thereof resulting from a Delayed Draw Term Loan Borrowing or (B) any expiration thereof), including, without limitation, as a result of a termination of the Delayed Draw Term Loan Commitments after the occurrence of an Event of Default 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 Borrowers shall pay an early termination fee (the “Early Termination Fee”) to Section 3.1the 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 greater of (1) three percent (3.00%) of the amount of the Term Loan so prepaid or required to be prepaid, or the amount of the Delayed Draw Term Loan Commitments so reduced or terminated, as the case may be, and (2) 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 required to be prepaid, or the amount of the Delayed Draw Term Loan Commitments so reduced or terminated, 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 required to be prepaid, or the amount of the Delayed Draw Term Loan Commitments so reduced or terminated, 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 Fee constitutes reasonable compensation and liquidated damages to compensate the Term Lenders on account thereof. The Early Termination Fee shall be earned and due and payable upon the earlier of the date any prepayment is made or is required to be made, or the date of such commitment reduction or termination, as the case may be. (iii) Without limiting the generality of the foregoing, it is understood and agreed that if the Term Loan and the related Obligations are accelerated for any reason, including because of default or the commencement of any Insolvency Proceeding or by operation of law or otherwise, the Early Termination Fee, if any, determined as of the date of acceleration will be due and payable as though the Term Loan was voluntarily prepaid as of such date and the Delayed Draw Term Loan Commitments were voluntarily terminated as of such date, and shall constitute part of the Obligations, 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 each Term Lender’s lost profits as a result thereof, Borrower shall pay to Fremont upon the effective date . The Borrowers agree that payment of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 any Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it due hereunder is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 Fee, if any, shall also be deemed included payable in the event the Obligations (and/or the Term Loan Agreement or the Term Notes evidencing the Obligations) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), agreement or deed in lieu of foreclosure or by any other means. Notwithstanding anything contained herein to the contraryTO THE FULLEST EXTENT PERMITTED BY LAW, if and to the extent THE BORROWERS EXPRESSLY 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 INVOLUNTARY ACCELERATION OF THE TERM LOAN AND THE RELATED OBLIGATIONS PURSUANT TO ANY INSOLVENCY PROCEEDING OR PURSUANT TO A PLAN OF REORGANIZATION. The Borrowers expressly agree that: (A) the Early Termination Fee constitutes interest under applicable lawis 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 Term Lenders and the Borrowers giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, when added ; and (D) the Borrowers shall be estopped hereafter from claiming differently than as agreed to all other interest contracted for, charged or received under in this Agreement or anyparagraph. The Borrowers expressly acknowledge that their agreement to pay the Early Termination Fee to the Term Lenders as herein described is a material inducement to the Term Lenders to make the Term Loan and extend the Delayed Draw Term Loan Commitments.

Early Termination Fee. If this Agreement (i) If, before the third anniversary of the Closing Date, the Revolving Loan Commitment is reduced or terminated by Fremont upon the occurrence for any reason (including any voluntary, mandatory or automatic reduction or termination, regardless of whether an Event of DefaultDefault has occurred and is then continuing, and including by reason of acceleration, automatic acceleration or otherwise), all or any portion of the M&E Term Loan is terminated at Borrower's request paid (or required to be paid) prior to the Scheduled Maturity Date (other than Scheduled M&E Term Loan Amortization Payments or the Prepayment Events described in clauses (a) and (b) in the definition thereof) or (ii) in each case pursuant to Section 3.12.6(d), Section 11.2 or otherwise, then in each such case, in view addition to any required payment of principal and unpaid accrued interest and other amounts due thereon, Borrowers immediately shall be required to pay to Agent, for the ratable benefit of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to Lenders, a reasonable calculation of Fremont's lost profits as a result thereofpremium (each, Borrower shall pay to Fremont upon the effective date of such termination a fee ("an “Early Termination Fee"”) (as liquidated damages and compensation for the cost of the Lenders being prepared to make funds available under the Revolving Loan Commitment during the scheduled term of this Agreement) in an amount equal to: to the Applicable Percentage (a) two percent (2%as defined below) of the Advance Limit amount of the M&E Term Loan payment or Revolving Loan Commitment or portion thereof so reduced or terminated. The "Applicable Percentage" shall be (A) three percent (3.0%), if such termination event occurs on or prior to before the first (1st) anniversary of this Agreement; or the Closing Date, (bB) one percent (11.0%) of the Advance Limit if such termination event 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 Renewal Date or subsequent anniversary of the Renewal Closing Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full but on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result second anniversary of the early termination and Borrower agrees that it is reasonable under Closing Date or (C) zero percent (0.0%) if such event occurs after the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in second anniversary of the Obligations. Notwithstanding anything contained herein to Closing Date, but on or before the contrary, if and to third anniversary of the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyClosing Date.

Early Termination Fee. If this Agreement is terminated by Fremont upon (a) If, prior to NovemberMay 1, 2018,2020, (ai) Agent demands or accelerates the occurrence of an Event of DefaultObligations, or Borrower is terminated at Borrower's request other than otherwise required to make payment in full of the Obligations, (bii) a Change of Control occurs, and/or final payment of all outstanding Obligations 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 2.7(a) occurs or is required to a reasonable calculation of Fremont's lost profits occur as a result thereof, Borrower shall pay (ciii) any other termination of this Agreement and/or final prepayment (in full) of the Loan or the Obligations occur, whether by virtue of Agent’s exercising its right of set-off or otherwise, or (div) any automatic acceleration of the Loan or the Obligations or cessation of lending on account of or during a bankruptcy, reorganization or other proceeding or liquidation or pursuant to Fremont upon any Debtor Relief Law (each, a “Termination”), then, at the effective date of any such termination Termination, Borrower shall pay Agent, for the ratable benefit of Lenders (in addition to the then outstanding principal, accrued interest and fees and other Obligations owing pursuant to the terms of this Agreement and any other Loan Document), as yield maintenance for the loss of bargain and not as a penalty, a fee ("an “Early Termination Fee"”) in an amount equal to: to (ax) two if such Termination occurs on or before April 30, 2018, an amount equal toOctober 31, 2019, one percent (21.0%) of the Advance Limit Maximum Loan Amount in effect as of such date of Termination, and (y) if such termination Termination occurs on or prior to the first (1st) anniversary after MayNovember 1, 2018,2019, but on or before October 31, 2018, an amount equal toApril 30, 2020, one-half of this Agreement; or (b) one percent (10.5%) of the Advance Limit Maximum Loan Amount in effect as of such date of Termination. (b) Notwithstanding the foregoing, in the event that on or after January 15, 2019, Borrower delivers to Agent a written request to (x) modify this Agreement to increase the maximum Leverage Ratio pursuant to Section 7.21 hereof to a ratio equivalent to a BDC Leverage Ratio of 1.40 to 1.00 or higher, (y) modify the definition of “Unsecured Longer-Term Indebtedness” or otherwise grant a limited waiver with respect thereto to permit Borrower to incur Unsecured Longer-Term Indebtedness, the aggregate amount of which is in excess of fifty percent (50%) of the Maximum Loan Amount (provided, that such Indebtedness otherwise satisfies the requirements for Unsecured Longer-Term Indebtedness under clauses (a) through (c) of the definition thereof), or (z) some combination of (I) an increase to the maximum Leverage Ratio pursuant to Section 7.21 hereof and (II) a modification or waiver with respect to the definition of “Unsecured Longer-Term Indebtedness” (of the sort described in the foregoing clause (y)) that, taken together, will otherwise equate to an increase in the maximum Leverage Ratio pursuant to Section 7.21 hereof to a ratio equivalent to a BDC Leverage Ratio of 1.40 to 1.00 or higher (a “Leverage Ratio Request”), Agent shall deliver to Borrower written notice (a “Leverage Ratio Response”), on or before the date that is sixty (60) days after Agent’s receipt of such Leverage Ratio Request, of whether Agent and the Lenders (in their Permitted Discretion) intend to modify this Agreement to accommodate the substance of the modifications requested in such Leverage Ratio Request (any such proposed modification and/or waiver, an “Accommodating Modification”). (i) If Agent notifies Borrower in the Leverage Ratio Response delivered pursuant to this clause (b) that Agent and the Lenders intend to undertake an Accommodating Modification, Agent and Borrower shall negotiate in good faith and with reasonable efforts to negotiate to execution an amendment to this Agreement to give effect to such Accommodating Modification on or before May 4, 2019 (or such later date agreed to by Agent and Borrower). (ii) If (x) Agent notifies Borrower in the Leverage Ratio Response delivered pursuant to this clause (b) that Agent and the Lenders do not intend to undertake an Accommodating Modification, or (y) Agent fails to deliver a Leverage Ratio Response prior to the expiration of the sixty (60) day period after Agent’s receipt of the Leverage Ratio Request, Borrower may solicit bona fide written offers from any third party to refinance the Loan with (A) terms and provisions that provide for a BDC Leverage Ratio covenant of 1.00 to 1.00 or higher and (B) economic terms that are substantially similar to or more beneficial to Borrower than the economic terms under this Agreement(an “Increased Leverage Refinancing Offer”). Within five (5) Business Days following receipt of such Increased Leverage Refinancing Offer, Borrower shall notify Agent in writing of (I) the existence of such Increased Leverage Refinancing Offer and (II) whether Borrower intends to accept such Increased Leverage Refinancing Offer. (1) If (a) (i) Agent fails to deliver a Leverage Ratio Response prior to the expiration of the sixty (60) day period after Agent’s receipt of the Leverage Ratio Request as provided in this clause (b) or (ii) the terms and provisions outlined in any such Increased Leverage Refinancing Offer include a BDC Leverage Ratio covenant equal to or higher than the equivalent BDC Leverage Ratio to be accomplished under the proposed modifications set forth in the Leverage Ratio Response delivered by Agent pursuant to this clause (b), and (b) Borrower accepts such Increased Leverage Refinancing Offer, then if, on or before the date that is one-hundred fifty (150) days (the “Leverage Refinancing Deadline”) from either (i) the date upon which Agent notifies Borrower in the Leverage Ratio Response delivered to Borrower that Agent and the Lenders do not intend to undertake an Accommodating Modification, or (ii) if Agent fails to deliver a Leverage Ratio Response, the expiration of the sixty (60) day period after Agent’s receipt of the Leverage Ratio Request (or the expiration of the five (5) day period set forth in clause (2) below), Borrower is able to negotiate to closing documents, instruments, and agreements to consummate a credit facility with the Person providing such termination occurs Increased Leverage Refinancing Offer that substantially matches the terms and provisions of such Increased Leverage (2) If (a) Agent delivers a Leverage Ratio Response prior to the expiration of the sixty (60) day period after Agent’s receipt of the first Leverage Ratio Request as provided in this clause (1stb), (b) anniversary the terms and provisions outlined in any such Increased Leverage Refinancing Offer include a BDC Leverage Ratio covenant of 1.00 to 1.00 or higher but less than the equivalent BDC Leverage Ratio to be accomplished under the proposed modifications set forth in the Leverage Ratio Response delivered by Agent pursuant to this Agreementclause (b), and (c) Agent delivers to Borrower written notice, on or before the date that is five (5) days after Agent’s receipt of such Increased Leverage Refinancing Offer, that Agent and the Lenders intend to undertake a modification as set forth in the Leverage Ratio Response initially delivered by Agent to Borrower, Agent and Borrower shall negotiate in good faith and with reasonable efforts to negotiate to execution an amendment to this Agreement to give effect to such modification on or before May 4, 2019 (or such later date agreed to by Agent and Borrower); provided, however, that no Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary Agent, upon receipt of the Renewal DateIncreased Leverage Refinancing Offer, notifies Borrower that Agent and the Lenders do not intend to undertake a modification as set forth in the Leverage Ratio Response initially delivered by Agent to Borrower (yor Agent fails to deliver a Leverage Ratio Response prior to the expiration of the five (5) Borrower has provided Fremont at least sixty day period referenced in this clause (60) days' prior written notice of termination in accordance with 2)), the terms and conditions provisions of Section 3.1 clause (1) above shall apply as if the terms and (z) provisions outlined in the Obligations are indefeasibly paid in full on Increased Leverage Refinancing Offer include a BDC Leverage Ratio covenant equal to or before higher than the termination date specified in such notice of termination. The Early Termination Fee shall be presumed equivalent BDC Leverage Ratio to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it is reasonable accomplished under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included proposed modifications set forth in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyLeverage Ratio Response delivered by Agent.

Early Termination Fee. If In the event that the Revolving Loan and Term Loan B are paid in full (other than as a result of payment of Term Loan B at maturity or scheduled reduction of the Term Loan B by way of payments in accordance with the Term Note or the expiration of the Revolving Loan at maturity), or in the event of any intentional non-compliance by either Borrower with any provisions of this Agreement is terminated which results in a termination of the Credit Facility by Fremont upon the occurrence of an Event of Default, or is terminated at Borrower's request other than Lender pursuant to Section 3.111.2 or 11.4 hereof, 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 Borrowers will pay to Fremont upon the effective date Lender an early termination fee of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) 3% of the Advance Limit line 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 B, if such termination the same occurs on or prior to during the first (1st) anniversary year following the execution of Consolidated Amendment No. 1 to this Loan Agreement; or , (b) one percent (1%) 2% of the Advance Limit line of credit approved for 50 Borrowers under the Revolving Loan pursuant to Section 2.3(A) hereof plus the outstanding principal balance then outstanding on Term Loan B, if such termination the same occurs after during the first second year following the execution of Consolidated Amendment No. 1 to this Loan Agreement, and (1stc) anniversary 1% of the line 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 B, if the same occurs during the third year following the execution of Consolidated Amendment No. 1 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 liquidated damages for loss of a bargain and not a penalty and the same is acknowledged to be an integral part of the consideration for Lender to execute Consolidated Amendment No. 1 to this Loan Agreement; provided, however, that no Early Termination Fee shall such fee will not be due and payable if (x) termination occurs on in the Renewal Date or subsequent anniversary event that the Borrowers make the foregoing prepayments exclusively from funds generated from a sale of substantially all of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result assets of the early termination and Borrower agrees that it is reasonable under Borrowers or a sale of the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included controlling interest in the Obligations. Notwithstanding anything contained herein voting securities in the Borrowers." Section 8.1 (O) of the Loan Agreement is, effective the date hereof, hereby amended and restated to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or anyread in its entirety as follows:

Early Termination Fee. If Section 2.06(a) of the 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 by Fremont upon on or prior to the occurrence second anniversary of an Event of Default, or is terminated at Borrower's request other than pursuant to Section 3.1the Amendment No. 3 Effective Date, in view of the impracticability impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Fremont's the Administrative Agent’s and Lenders’ lost profits as a result thereof, Borrower shall Borrowers agree to pay to Fremont Administrative Agent and Lenders, upon the effective date of such termination a fee ("termination, the Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont Administrative Agent and Lenders as the a result of the such early termination and Borrower agrees 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. In addition, Administrative Agent and Lenders shall be entitled to the Early Termination Fee (a) upon any acceleration (whether automatic or otherwise) of the Obligations upon the occurrence of any Event of Default (including, but not limited to, any Event of Default described in Section 8.01(f) hereof), 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 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 cash collateral under the United States Bankruptcy Code. THE BORROWERS EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE EARLY TERMINATION FEE IN CONNECTION WITH ANY ACCELERATION OF THE OBLIGATIONS. The Borrowers expressly agree that (a) the Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made, (b) there has been a course of conduct between the Lenders and the Borrowers giving specific consideration in this transaction for such agreement to pay the Early Termination Fee, (c) the Borrowers shall be estopped hereafter from claiming differently than as agreed to in this Section 2.06(a), and (d) their agreement to pay the Early Termination Fee is a material inducement to the Lenders to make Revolving Loans. The Early Termination Fee provided for in this Section 3.2 2.06(a) shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added to all other interest contracted for, charged or received under this Agreement or any.”

Early Termination Fee. If this Agreement is terminated by Fremont upon In the occurrence event of an Event of Defaultthe termination by, or is terminated at Borrower's request other than pursuant to Section 3.1on behalf of, in view any or all of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement Borrowers, of the parties as to a reasonable calculation of Fremont's lost profits as a result thereofRevolving Credit Commitment, Borrower the Borrowers jointly and severally shall pay to Fremont upon the effective date of such termination a fee (the "Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the first (1st) anniversary of this Agreement; or (b) one percent (1%) of following amount at the Advance Limit if such termination occurs after the first (1st) anniversary of this Agreement; provided, however, that no following times: Period Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary October 1, 1996, through and 2% of the Renewal DateCommitted Amount including September 30, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice 1997 October 1, 1997, through and 1% of termination the Committed Amount including, the day preceding the Revolving Credit Expiration Date Payment of the Revolving Loan in accordance with whole or in part by or on behalf of the terms Borrowers, by court order or otherwise, following and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the a result of the early termination and Borrower agrees that it is reasonable under institution of any bankruptcy proceeding by or against the circumstances currently existing. The Borrowers, shall be deemed to be a prepayment of the Revolving Loan subject to the Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligationssubsection. Notwithstanding anything contained herein the foregoing, the Borrowers shall not be required to the contrary, if and to the extent pay the Early Termination Fee constitutes interest under applicable lawin connection with a repayment of all Obligations and termination of the Revolving Loan from the proceeds of a public or private offering of equities which generates sufficient proceeds to repay all Obligations in full. In addition, if the Borrowers request that the Lender consent to the purchase of Fixed or Capital Assets or the purchase or acquisition of, or investment in, any Person which would not otherwise be permitted by the provisions of this Agreement, and the Lender refuses to agree and consent to any such purchase, acquisition or investment, the Borrowers may, at their option, repay the Obligations in full and terminate the Revolving Loan and shall have no obligation to pay an Early Termination FeeFee in connection with any such prepayment and termination. Nothing contained in this Section shall be deemed a waiver by the Lender of any Default or Event of Default which results from any such public or private offering of equities and/or the closing of a purchase, when added to all other interest contracted for, charged acquisition or received under investment otherwise prohibited by the provisions of this Agreement or anyAgreement.

Early Termination Fee. If this (A) In the event that (A) (x) the maturity of the Obligations is accelerated (or deemed accelerated) and the Revolver Commitments are irrevocably terminated (or deemed terminated) in accordance with Article 9, or (y) the Commitments are terminated by the Administrative Borrower in accordance with the provisions of Section 3.5, (the date of such termination described in either clause (x) or (y), the “ETF Termination Date”) or (B) the Borrowers reduce (but do not terminate) the Revolver Commitments in accordance with the provisions of 2.4(c), in each case, for any reason on or before the first anniversary of the Closing Date, the Administrative Borrower shall pay (or cause to be paid) to the Agent, for the ratable benefit of the Lenders, a fee (the “Early Termination Fee”) in respect of the amounts which are or become payable by reason thereof equal to the following: one and one-half percent (1.50%) of (a) in the case of clause (A) above, the Commitments then in effect (without regard to any termination thereof) or (b) in the case of clause (B) above, the amount of any such reduction in the Aggregate Commitments; provided, however, that, in each case, if applicable notice from the Administrative Borrower under Section 3.5 of the Credit Agreement is terminated by Fremont conditioned on the occurrence or non-occurrence of any transaction or the receipt of proceeds to be used for such termination or reduction, then the applicable Early Termination Fee described in this numbered paragraph 3 shall only be payable if such condition is satisfied prior to the applicable date described above and the calculation of the amount of the Early Termination Fee shall be made as of the date such condition is satisfied; provided, further, that for purposes of calculating the amount of the Early Termination Fee, the Commitments or Aggregate Commitments, as applicable, shall not include the amount of any unused Commitments of a Defaulting Lender. Notwithstanding anything to the contrary herein, the Early Termination Fee shall not be due and owing if the ETF Termination Date occurs in connection with, and on the same date, that the Encina Business Credit, LLC closes and funds an exit financing facility on the effective date of an Acceptable Plan (as such term is defined on Schedule 5.23). (B) The calculation of the amount of the Early Termination Fee shall be made as of the ETF Termination Date or the date of any Revolver Commitment reduction, as applicable. All parties hereto agree and acknowledge that the Lenders will have suffered damages on account of the events set forth in clause (A) above and that, in view of the difficulty in ascertaining the amount of such damages, the applicable Early Termination Fee constitutes reasonable compensation and liquidated damages to compensate the Lenders on account thereof. The Early Termination Fee shall be earned and due and payable upon the occurrence of an Event the ETF Termination Date or the date of Defaultany applicable Revolver Commitment reduction, as applicable. (C) Without limiting the generality of the foregoing, it is understood and agreed that if the Obligations are accelerated in accordance with this Agreement for any reason, including because of default (including acceleration by operation of law or is terminated at Borrower's request other than pursuant otherwise), in each case, on or prior to Section 3.1the first anniversary of the Closing Date, the applicable Early Termination Fee, if any, determined as of the date of such acceleration will be due and payable in accordance with the paragraphs above as though the amounts owed to the Lenders were voluntarily prepaid as of such date in accordance with this Agreement and shall constitute part of the Obligations, 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 each Lender’s lost profits as a result thereof, Borrower shall pay to Fremont upon the effective date . The Borrowers agree that payment of such termination a fee ("Early Termination Fee") in an amount equal to: (a) two percent (2%) of the Advance Limit if such termination occurs on or prior to the 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 any Early Termination Fee shall be payable if (x) termination occurs on the Renewal Date or subsequent anniversary of the Renewal Date, (y) Borrower has provided Fremont at least sixty (60) days' prior written notice of termination in accordance with the terms and conditions of Section 3.1 and (z) the Obligations are indefeasibly paid in full on or before the termination date specified in such notice of termination. The Early Termination Fee shall be presumed to be the amount of damages sustained by Fremont as the result of the early termination and Borrower agrees that it due hereunder is reasonable under the circumstances currently existing. The Early Termination Fee provided for in this Section 3.2 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, if and to the extent the Early Termination Fee constitutes interest under applicable law, the Early Termination Fee, when added if any, shall also be payable in accordance with the paragraphs above in the event the amounts owed to all the Lenders are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), agreement or by any other interest contracted formeans on or prior to the first anniversary of the Closing Date. TO THE FULLEST EXTENT PERMITTED BY LAW, charged or received under THE BORROWERS EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE APPLICABLE EARLY TERMINATION FEE IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE OBLIGATIONS PURSUANT TO ANY INSOLVENCY PROCEEDING OR OTHER PROCEEDING PURSUANT TO ANY DEBTOR RELIEF LAWS OR PURSUANT TO A PLAN OF REORGANIZATION. The Borrowers expressly agree that: (A) the applicable 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 applicable Early Termination Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made; and (C) the Borrowers shall be estopped hereafter from claiming differently than as agreed to in this Agreement or anyparagraph. The Borrowers expressly acknowledge that their agreement to pay the applicable Early Termination Fee to the Agent as herein described is a material inducement to the Lenders to enter into this Agreement.