EXPENSES ARE LESS THAN $[***], SUCH EXCESS SHALL BE
RETURNED TO BORROWER WITHIN FIVE BUSINESS DAYS AFTER THE CLOSING DATE), AND
(II) PAID TO OXFORD, AND OXFORD HEREBY ACKNOWLEDGES RECEIPT OF, A PAYMENT IN THE
AMOUNT OF $[***] WHICH PAYMENT SHALL BE RETAINED BY OXFORD IN ITS CAPACITY AS
LENDER AS A CLOSING FEE THAT SHALL BE NON-REFUNDABLE AND FULLY EARNED BY OXFORD
ON THE CLOSING DATE (REGARDLESS OF WHETHER THE TERM LOAN B OR TERM LOAN C IS
REQUESTED BY BORROWER OR AUTHORIZED BY BORROWER'S BOARD OF DIRECTORS AFTER THE
CLOSING DATE).
(B)
UNUSED LINE FEE.
ON THE TERM LOAN C COMMITMENT TERMINATION DATE,
BORROWER SHALL PAY TO AGENT, FOR THE RATABLE BENEFIT OF LENDERS HOLDING A
COMMITMENT IN ACCORDANCE WITH THEIR PRO RATA SHARES OF THE TOTAL COMMITMENT, A
NON-REFUNDABLE UNUSED LINE FEE (THE "UNUSED LINE FEE") EQUAL TO 2% OF THE
UNDRAWN AMOUNT OF THE TOTAL COMMITMENT AS OF SUCH DATE, WHICH FEE SHALL BE FULLY
EARNED ON THE TERM LOAN C COMMITMENT TERMINATION DATE (REGARDLESS OF WHETHER THE
BORROWER'S BOARD OF DIRECTORS ELECTS TO AUTHORIZE THE BORROWING OF THE TERM LOAN
B OR TERM LOAN C BY BORROWER).
NOTWITHSTANDING THE FOREGOING, A LENDER SHALL
NOT BE ENTITLED TO RECEIVE (AND BORROWER SHALL NOT BE OBLIGATED TO PAY) SUCH
LENDER'S PRO RATA SHARE OF THE UNUSED LINE FEE TO THE EXTENT (I) BORROWER
SATISFIED ALL CONDITIONS SET FORTH IN SECTION 4.2 AND SECTION 4.3, AS
APPLICABLE, WITH RESPECT TO A REQUESTED TERM LOAN AND (II) SUCH LENDER FAILED TO
ADVANCE ITS PRO RATA SHARE OF SUCH TERM LOAN.
2.8.
MAXIMUM LAWFUL RATE.
ANYTHING HEREIN, ANY NOTE OR ANY OTHER DEBT
DOCUMENT (AS DEFINED BELOW) TO THE CONTRARY NOTWITHSTANDING, THE OBLIGATIONS OF
LOAN PARTIES HEREUNDER AND THEREUNDER SHALL BE SUBJECT TO THE LIMITATION THAT
PAYMENTS OF INTEREST SHALL NOT BE REQUIRED, FOR ANY PERIOD FOR WHICH INTEREST IS
COMPUTED HEREUNDER, TO THE EXTENT (BUT ONLY TO THE EXTENT) THAT CONTRACTING FOR
OR RECEIVING SUCH PAYMENT BY AGENT AND LENDERS WOULD BE CONTRARY TO THE
PROVISIONS OF ANY LAW APPLICABLE TO AGENT AND LENDERS LIMITING THE HIGHEST RATE
OF INTEREST WHICH MAY BE LAWFULLY CONTRACTED FOR, CHARGED OR RECEIVED BY AGENT
AND LENDERS, AND IN SUCH EVENT LOAN PARTIES SHALL PAY AGENT AND LENDERS INTEREST
AT THE HIGHEST RATE PERMITTED BY APPLICABLE LAW ("MAXIMUM LAWFUL RATE");
PROVIDED, HOWEVER, THAT IF AT ANY TIME THEREAFTER THE RATE OF INTEREST PAYABLE
HEREUNDER OR THEREUNDER IS LESS THAN THE MAXIMUM LAWFUL RATE, LOAN PARTIES SHALL
CONTINUE TO PAY INTEREST HEREUNDER AT THE MAXIMUM LAWFUL RATE UNTIL SUCH TIME AS
THE TOTAL INTEREST RECEIVED BY AGENT AND LENDERS IS EQUAL TO THE TOTAL INTEREST
THAT WOULD HAVE BEEN RECEIVED HAD THE INTEREST PAYABLE HEREUNDER BEEN (BUT FOR
THE OPERATION OF THIS PARAGRAPH) THE INTEREST RATE PAYABLE SINCE THE MAKING OF
THE APPLICABLE TERM LOAN AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY NOTE OR
ANY OTHER DEBT DOCUMENT.
3.
CREATION OF SECURITY INTEREST.
3.1.
GRANT OF SECURITY INTEREST.
AS SECURITY FOR THE PROMPT PAYMENT