Common use of Excluded Collateral Clause in Contracts

Excluded Collateral. For avoidance of doubt, it is understood and agreed that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

Excluded Collateral. For avoidance Notwithstanding anything herein to the contrary, but subject in all respects to the provisions contained in this Section 3, in no event shall the Collateral hereunder or the collateral under any other Secured Debt Document include, and no Debtor shall be deemed to have granted a security interest in the following (collectively, the “Excluded Collateral”): (a) any FCC License, except at such times and to the extent that a security interest in such FCC License is permitted under applicable law; (b) any Excluded Equity Interests; (c) any United States Trademark applications filed on the basis of doubta Debtor’s intent-to-use such ▇▇▇▇, it in each case, unless and until evidence of the use of such Trademark in interstate commerce is understood submitted to the United States Patent and agreed Trademark Office, but only if and to the extent that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens granting of a security interest in such application would result in the Excluded Collateral securing the Senior Obligationsinvalidation of such application; (d) any interest in leased real property (including, and that as of the date of this Agreementwithout limitation, no such Liens any leasehold interests in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure real property); (e) any New Obligations. Each Purchaser hereby disclaims all Liens now or fee interest in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement real property (other than the provisions expressly dealing with the Excluded CollateralMortgaged Property); (f) does not apply or relate any assets subject to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party a permitted Lease Related Lien (other than the Liens in the Junior Priority Collateral granted case of a permitted refinancing in respect of the Indebtedness secured by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateralsuch Lease Related Lien) to secure the Senior Obligations shall not extent the documents governing such Lease Related Lien prohibit, or require a consent or approval in order for, such assets to be subject to the terms Liens created by the Secured Debt Documents; and (g) any other Collateral to the extent and for so long as such grant of security interest, (i) is prohibited by any Requirement of Law (as hereinafter defined), (ii) requires a filing with or consent from any Governmental Authority pursuant to any Requirement of Law that has not been made or obtained, or (iii) constitutes a breach or default under or results in the termination of, or requires any consent not obtained under, any program, lease, license (including, without limitation, any software license), contract or agreement, except to the extent that such Requirement of Law or provisions of any such program, lease, license, contract or agreement is ineffective under applicable law or would be ineffective under Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC to prevent the attachment of the security interest granted hereunder; provided, that, notwithstanding the foregoing provisions of this Agreement. Notwithstanding anything Section 3, the security interest granted hereby (and to the contrary contained hereinextent such property is purported to be covered by any other Secured Debt Document, if the security interest granted under such Secured Debt Document), (x) shall attach at all times to all proceeds of such property to the extent that the assignment or encumbering of such proceeds is not prohibited by any Requirement of Law, (y) shall attach to such property immediately and automatically (without need for any reason, prior further grant or act) at such time as the condition described in the applicable clause (a) through (g) above ceases to exist and (z) to the Discharge extent severable shall in any event attach to all rights in respect of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided property that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral are not subject to the Senior Lenderapplicable condition described in clause (a) through (g) above.

Excluded Collateral. For avoidance of doubt, it is understood and agreed that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained hereinherein or in the Original Security Agreement, if for (a) the grant of the security interest contained in §2.1 shall not extend to, and the term "Collateral" shall not include: (i) any reasondirectly held Equity Interests (whether classified as investment property or as a general intangible), prior now or hereafter held or owned by a Loan Party (other than directly held Equity Interests (however classified) in a Person that is a Borrower, Guarantor or Wholly-Owned Restricted Subsidiary) to the Discharge extent either (x) that a security interest may not be granted by such Loan Party in such directly held Equity Interests (A) as a matter of law, or (B) under the terms of the Senior Obligationsgoverning document, joint venture agreement or shareholders agreement, as the case may be, applicable thereto, without the consent of one or more applicable third parties thereto and such consent has not been obtained, or (y) that the granting of a security interest would give rise to a "right of first refusal", a "right of first offer" or similar right that may be exercised by a third party pursuant to the applicable governing document, joint venture agreement or shareholders agreement (each, a "Non-Transferable Interest"), (ii) any Purchaser acquires possession Equity Interest (whether classified as investment property or as a general intangible) in any Person that is a joint venture (and not also a Borrower, Guarantor or Wholly-Owned Restricted Subsidiary), which Equity Interest is pledged by the applicable Loan Party to a third party to secure any obligations of such Loan Party incurred on behalf of a joint venture so long as the Investment in such Person and the obligation relating thereto are permitted under the terms of the Credit Agreement (a "JV Pledged Interest"), (iii) any Equity Interest (whether classified as investment property or as a general intangible) in any Unrestricted Subsidiary (a "Unrestricted Subsidiary Interest"), or (iv) any Equity Interest (whether classified as investment property or as a general intangible) in (x) any Foreign Subsidiary; (y) any FSHCO or (z) any domestic Restricted Subsidiary of either of the foregoing, other than 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of any first tier Foreign Subsidiary that is a CFC (a "Foreign Subsidiary Interest"). The foregoing excluded Collateral set forth in sub-clauses (i) through (iv) hereof is herein and in the Credit Agreement referred to as the "Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior LenderAssets".

Excluded Collateral. For avoidance The First Priority Agent, on behalf of doubtitself and the First Priority Lenders, it is understood and agreed the Second Priority Agent, on behalf of itself and the Second Priority Lenders, agree that no such creditor shall obtain a Lien on any asset or property of any Grantor unless such other creditors concurrently obtain a Lien thereon or such other creditors waive their rights under this sentence; provided, that the Credit Parties Second Priority Agent, on behalf of itself and Biovestthe Second Priority Lenders, which are obligors under or otherwise guarantee acknowledges and agrees that the Senior Obligations, have granted Senior Lender First Priority Claims may be secured by Liens on Excluded Collateral (as such term is defined in the Indenture as in effect on the date hereof, the “Second Priority Excluded Collateral”) of the type described in clause (i) of the definition thereof without the Second Priority Claims being secured by such Second Priority Excluded Collateral securing and the Senior ObligationsFirst Priority Agent, on behalf of itself and the First Priority Lenders, acknowledges and agrees that the Second Priority Claims may be secured by Liens on Excluded Collateral (as such term is defined in the Credit Agreement as in effect on the date hereof, the “First Priority Excluded Collateral”) of the date of this Agreement, no such Liens type described in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge clause (h) of the Senior Obligations. It is understood and agreed definition thereof without the First Priority Claims being secured by all parties hereto that this Agreement (other than the provisions expressly dealing with the such First Priority Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for (a) neither the First Priority Claims nor any reason, prior to the Discharge of the Senior Obligations, DIP Financing contemplated under Section 6. l(a) may be secured by any Purchaser acquires possession of any Second Priority Collateral (including such First Priority Excluded Collateral) unless consented to by the Second Priority Agent, on behalf of itself and the Second Priority Lenders and (b) the Second Priority Claims may not be secured by any First Priority Collateral (including such Purchaser shall hold same as bailee and/or agent for Second Priority Excluded Collateral) unless consented to by the Senior LenderFirst Priority Agent, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to on behalf of itself and the Senior LenderFirst Priority Lenders.

Excluded Collateral. Notwithstanding anything herein to the contrary, but subject in all respects to the provisions contained in this Section 1(B), in no event shall the Collateral hereunder include, and Debtor shall not be deemed to have granted a security interest in (i) any of Debtor’s rights or interests in any program, license (including, without limitation, any software license), contract or agreement to which Debtor is a party or any of its rights or interests thereunder to the extent, but only to the extent, that such a grant would, under the terms of such program, license, contract or agreement or otherwise, result in a breach of the terms of, or constitute a default under, or cause a termination of, any license, contract or agreement to which Debtor is a party, or (ii) any FCC License or any PUC License, except at such times and to the extent that a security interest in such FCC License or PUC License is permitted under Applicable Law, or (iii) any leasehold to the extent that such grant would, under the terms of the lease relating thereto, result in a breach of the terms of, or constitute a default under, or cause a termination of, such lease; provided, that, notwithstanding the foregoing provisions of this Section 1(B), (x) the foregoing grant of security interest shall extend to, and the Collateral hereunder shall include, any and all proceeds of any such program, license, contract or agreement, FCC License or PUC License or leasehold to the extent that the assignment or encumbering of such proceeds is not prohibited by Applicable Law, (y) immediately upon the ineffectiveness, lapse, waiver or termination of any such provision or restriction referred to in clauses (i) through (iii) of this Section 1(B), the Collateral hereunder shall include, and Debtor shall be deemed to have granted a security interest in, all such rights and interests in and to each and every program, license, contract, agreement, FCC License or PUC License or leasehold to which such provision or restriction pertained as if such provision or restriction had never been in effect and (z) the Collateral shall include, and Debtor shall be deemed to have granted a security interest in, any of Debtor’s rights, interests, contracts, agreements and licenses (including FCC Licenses or PUC Licenses), any leasehold and any other rights and assets that would not constitute Collateral if the provisions of clauses (i) through (iii) of this Section 1(B) governed, if and to the extent that the issuer of or other party to such contract, agreement, license or lease has consented to such grant or to the extent that any such restriction on granting a security interest referred to in clauses (i) through (iii) of this Section 1(B) would be rendered ineffective pursuant to the UCC or any other Applicable Law (including any federal, state or foreign bankruptcy, insolvency or similar law). For avoidance of doubt, the parties confirm that any license or like agreement to which Debtor is a party permitting Debtor to locate antennas, transmitters or other broadcasting equipment on property owned by a third party does not constitute a real property leasehold interest for purposes of the immediately preceding sentence or for any other purpose. Where applicable, and to the extent not otherwise defined herein, all terms used herein shall have the same meaning as set forth in the Uniform Commercial Code in effect in the State of Colorado, as amended from time to time (the “UCC”). Any of the foregoing terms which are defined in the UCC shall have the meaning provided in the UCC, as amended and in effect from time to time, as supplemented and expanded by the foregoing. For avoidance of doubt, it is expressly understood and agreed that, to the extent the UCC is revised subsequent to the date hereof such that the Credit Parties and Biovest, which are obligors under or otherwise guarantee definition of any of the Senior Obligations, have granted Senior Lender Liens foregoing terms included in the Excluded description of Collateral securing is changed, the Senior Obligations, and parties hereto desire that as of any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on the date hereof be included in such grant immediately upon the effective date of this Agreementsuch revision. Notwithstanding the immediately preceding sentence, no such Liens in the Excluded foregoing grant is intended to apply immediately on the date hereof to all Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge fullest extent permitted by Applicable Law regardless of the Senior Obligations. It whether any particular item of Collateral is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be currently subject to the terms UCC. The security interests are granted as security only and provisions shall not subject Secured Party to, or transfer to Secured Party, or in any way affect or modify, any obligation or liability of Debtor with respect to any of the Collateral or any transaction in connection therewith. Debtor will perform and comply in all material respects with all of its obligations in respect of the Collateral, including, without limitation, accounts, contracts, leases and other general intangibles, and the exercise by Secured Party of any of its rights hereunder shall not release Debtor from any of its duties or obligations. Secured Party shall not have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Security Agreement. Notwithstanding anything , nor shall Secured Party be obligated to the contrary contained herein, if for perform any reason, prior to the Discharge of the Senior Obligations, obligations or duties of Debtor thereunder or to take any Purchaser acquires possession of action to collect or enforce any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent claim for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lenderpayment assigned hereunder.

Excluded Collateral. For Notwithstanding anything herein to the contrary, in no event shall the Collateral subject to this Agreement include or the security interest or lien granted under Section 2.1 attach to (a) any of the outstanding voting capital stock of a CFC in excess of 65% of the voting power of all classes of capital stock of such CFC entitled to vote; provided that immediately upon the amendment of the Internal Revenue Code to allow the pledge of a greater percentage of the voting power of capital stock in a CFC without adverse tax consequences to Parent and its Subsidiaries, the Collateral shall include, and such security interest and lien shall attach to, such greater percentage of capital stock of each CFC, (b) all Commercial Tort Claims in an individual amount less than or equal to $10,000,000, (c) Margin Stock, (d) any asset to the extent and for so long as the grant of a security interest therein would be prohibited by a Requirement of Law or would require any Governmental Authorization (other than to the extent that any such prohibition or requirement would be rendered ineffective pursuant to the anti-non-assignment provisions of the UCC or other applicable law), (e) Equity Interests in any Person other than the Grantors to the extent not permitted by the terms of such Person’s organizational or joint venture documents (other than to the extent that any such restriction would be rendered ineffective pursuant to the anti-non- assignment provisions of the UCC or other applicable law), (f) Equity Interests in Unrestricted Subsidiaries, (g) in the case of assets consisting of licenses, leases, agreements or other contracts or assets that are subject to purchase money financing or capital leases, to the extent and for so long as the grant of security therein is prohibited or restricted by any Requirement of Law or by the terms of such license, lease, agreement or other contract (including anti-assignment provisions of any such contract) or would require the consent of a Governmental Authority or a third party that is party to such contract (unless such consent has already been received or the applicable third party has agreed to cooperate with the establishment of any secured financing) or would trigger termination of (or a right to terminate) any such contract pursuant to any “change of control” or similar provision or the ability for any third party to amend any rights, benefits and/or obligations of the Credit Parties in respect of those assets, or which would require any Credit Party or any Subsidiary of any Credit Party to take any action materially adverse to the interests of such Credit Party or such Subsidiary (in each case, to the extent applicable and other than to the extent that any of the foregoing would be rendered ineffective pursuant to the anti-non-assignment provisions of the UCC or other applicable law), (h) any other asset to the extent that the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Credit Party to conduct its operations and business in the ordinary course) of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby, as reasonably determined by the Borrower and the Collateral Agent (it being acknowledged that the maximum guaranteed or secured amount may be limited to minimize stamp duty, notarization, registration or other applicable fees, taxes and duties where the Borrower and the Collateral Agent reasonably determine that the benefit to the Lenders of increasing the guaranteed or secured amount is disproportionate to the level of such fee, taxes and duties), (i) any asset to the extent that the grant of a security interest therein would result in materially adverse tax consequences to Parent and its Subsidiaries, as reasonably determined by the Borrower in consultation with the Collateral Agent , (j) any “intent-to-use” trademark applications prior to the filing of a “Statement of Use” or “Amendment to Allege Use” and any other Intellectual Property in any jurisdiction where, with respect thereto, the grant of a security interest therein would cause the invalidation, abandonment or unenforceability of such Intellectual Property under applicable law; provided, however, that any Proceeds, products, substitutions or replacements of Excluded Assets shall not constitute Excluded Assets unless such Proceeds, products, substitutions or replacements would themselves constitute Excluded Assets, (k) property described on Schedule 2 and (l) through January 31, 2016, the Equity Interests in Arizona Chemical Aktiebolag; provided that, for the avoidance of doubt, it is understood following January 31, 2016, such security interest and agreed that lien shall attach to the Equity Interests in Arizona Chemical Aktiebolag subject to the other clauses of this Section 2.2 and only to the extent owned by a Grantor. Further, (a) no Grantor shall be required to take any action with respect to the perfection of security interests in any assets located, applied for, registered or otherwise arising under the law of any jurisdiction outside of the United States, and no foreign law security or pledge agreements or foreign Intellectual Property filings or searches shall be required, (b) the Credit Parties shall not be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement, (c) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit, securities and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior Commodities Accounts (except to the Discharge extent required pursuant to Section 4.1(i), the ABL Loan Documents or the Intercreditor Agreement), provided that the foregoing shall not apply to delivery of the Senior Obligations. It is understood pledged Equity Interests and agreed by all parties hereto that this Agreement pledged promissory notes (other than the provisions expressly dealing pledged Equity Interests in Immaterial Subsidiaries and any pledged promissory note with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other a face amount of less than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender$5,000,000), and that (d) no actions shall be required to perfect the grant of the security interest in vehicles and any other assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms certificates of title or ownership, commercial tort claims and provisions letter of this Agreement. Notwithstanding anything credit rights, in each case except to the contrary contained herein, if for any reason, prior to extent perfection of a security interest therein may be accomplished by the Discharge filing of financing statements under the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior LenderUCC.

Excluded Collateral. For avoidance Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral” shall not include, and no security interest is or will be granted pursuant hereto in any right, title or interest of doubtany Grantor in, it the following (collectively, the “Excluded Collateral”): (a) Voting Equity Interests of any Foreign Subsidiary which is understood a “first tier” Subsidiary of any Grantor, solely to the extent that such Voting Equity Interests represent more than 65% of the outstanding Voting Equity Interests of such Foreign Subsidiary; (b) any rights or interest in any contract, lease, permit or License covering real or personal property of any Grantor if under the terms of such contract, lease, permit or License, or applicable law with respect thereto, the grant of a security interest or Lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit or License and agreed such prohibition or restriction has not been waived or the consent of the other party to such contract, lease, permit or License has not been obtained (provided, that, (i) the foregoing exclusions of this clause (b) shall in no way be construed (A) to apply to the extent that any described prohibition or restriction is unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Credit Parties UCC or other applicable law, or (B) to apply to the extent that any consent or waiver has been obtained that would permit the Collateral Agent’s security interest or Lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit or License and Biovest(ii) the foregoing exclusions of clauses (a) and (b) shall in no way be construed to limit, which are obligors impair, or otherwise affect any continuing security interests of the Collateral Agent, for the benefit of the Secured Parties, in and Liens upon any rights or interests of any Grantor in or to (A) monies due or to become due under or otherwise guarantee in connection with any described contract, lease, permit, License or Equity Interests, or (B) any Proceeds from the Senior Obligationssale, have granted Senior Lender Liens license, lease, or other dispositions of any such contract, lease, permit, License or Equity Interests); (c) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications or any registrations issuing therefrom under applicable law, provided, that, upon submission and acceptance by the PTO of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall be considered Collateral; (d) any interest in Real Property; (e) [reserved]; (f) the UBS VAT Restricted Cash (as defined in the ABL Credit Agreement); and (g) any property or assets with respect to which, in the reasonable judgment of Parent and the Collateral Agent, the cost or other consequences (including any adverse tax consequences) of granting a security interest in favor of the Collateral Agent, for the benefit of the Secured Creditors, shall be excessive in relation to the value to be obtained by the Secured Creditors therefrom; provided, however, that Excluded Collateral securing the Senior Obligationsshall not include any Proceeds, and that as substitutions or replacements of the date of this Agreement, no such Liens in the any Excluded Collateral have been provided by the Credit Parties referred to in any of clauses (a) through (g) (unless such Proceeds, substitutions or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the replacements would constitute Excluded Collateral prior referred to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party of clauses (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lendera) through (g), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations ). The Grantors shall not be subject required to the terms take any action intended to cause “Excluded Collateral” to constitute Collateral and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge none of the Senior Obligations, covenants or representations and warranties herein shall be deemed to apply to any Purchaser acquires possession of any property constituting Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

Excluded Collateral. For avoidance the (i) Excluded Cash Accounts, (ii) the Surety Collateral to the extent (a) the issuer of doubtthe Surety Bond is Chubb or a co-surety of Chubb under the Chubb Agreements in effect on the Petition Date and (b) such Surety Collateral has not previously been included in a Borrowing Base Certificate delivered to Agent, it (iii) the Borrower’s partnership interest in Enertech, (iv) all cash collateral pledged to Chubb pursuant to the Chubb Agreements that is understood in the possession or under the control of Chubb, (v) cash collateral pledged to Sureties (other than Chubb) up to an aggregate amount of $2,000,000 that is in the possession or under the control of such Surety and agreed (vi) causes of actions of Borrowers under Chapter 5 of the Bankruptcy Code; provided, however, that in no event shall Excluded Collateral include any amounts which from time to time may be in the Credit Parties Cash Collateral Account. Extraordinary Expenses - all costs, expenses, fees or advances that Agent or any Lender may suffer or incur, whether prior to or after the occurrence of an Event of Default, and Biovestwhether prior to, after or during the pendency of an Insolvency Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection, repossession, storage, repair, appraisal, insuring, completion of the manufacture of, preparing for sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any Collateral; (ii) the defense of Agent’s Lien upon any Collateral or the priority thereof or any adverse claim with respect to the Loans, the DIP Loan Documents or the Collateral asserted by any Obligor, any receiver or trustee for any Obligor or any creditor or representative of creditors of any Obligor; (iii) the settlement or satisfaction of any Liens upon any Collateral (whether or not such Liens are Permitted Liens); (iv) the collection or enforcement of any of the Obligations; (v) the negotiation, documentation, and closing of any restructuring or forbearance agreement with respect to the DIP Loan Documents or Obligations; (vi) amounts advanced by Agent pursuant to Section 7.1.3 of the Agreement; (vii) the enforcement of any of the provisions of any of the DIP Loan Documents; or (viii) any payment under a guaranty, indemnity or other payment agreement provided by Agent or (with Agent’s consent) any Lender, which is reimbursable to Agent or such Lender by Borrower pursuant to Section 2.4.2 of the Agreement. Such costs, expenses and advances may include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any or all Borrowers or independent contractors in liquidating any Collateral, travel expenses, all other fees and expenses payable or reimbursable by Borrowers or any other Obligor under any of the DIP Loan Documents, and all other fees and expenses associated with the enforcement of rights or remedies under any of the DIP Loan Documents, but excluding compensation paid to employees (including inside legal counsel who are obligors employees) of Agent. Federal Funds Rate - for any period, a fluctuating interest rate per annum equal for each date during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) in Dallas, Texas by the Federal Reserve Bank of Dallas, or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from 3 federal funds brokers of recognized standing selected by Agent. FEIN - with respect to any Person, the Federal Employer Identification Number of such Person. Final Order - the order entered by the Court in the Chapter 11 Case after a final hearing under Bankruptcy Rule 4001 (c)(2), pursuant to Section 364(c) and (d) of the Bankruptcy Code, in form and substance satisfactory to Agent, as to which no stay has been entered, and which has not been vacated, modified or otherwise guarantee reversed, (i) authorizing the Senior Borrowers to incur Post-Petition secured Debt and to grant Liens under the Commitments in accordance with this Agreement and the other DIP Loan Documents, (ii) providing for the super-priority of the Obligations, have granted Senior Lender Liens including without limitation, a specific grant of a security interest to Agent, for the benefit of Lenders, in all Collateral, as well as the Excluded right to the proceeds from all Collateral securing in accordance with this Agreement and the Senior Obligationsother DIP Loan Documents, and (iii) providing that as of all Obligations under the date of Pre-Petition Loan Documents constitute Obligations under this Agreement, no such Liens in and (iv) authorizing the Excluded Collateral have been provided payment by the Credit Parties Borrowers of all fees and expenses contemplated by this Agreement and the other DIP Loan Documents, including, but not limited to, those certain fees set forth in Section 2.2 hereof, each as set forth in such order. Additionally, such order shall provide for usual and customary protections for Agent and Lenders, including, but not limited to, (a) a waiver of any and all claims and causes of action of Borrowers against Agent and Lenders on account of the Pre-Petition Debt and Pre-Petition Loan Documents, including, but not limited to, any claims for preference, fraudulent conveyance or Biovest other claims arising under the Bankruptcy Code, and any and all claims regarding the validity, priority, perfection or avoidability of the secured claims of Agent and Lenders, subject to secure the right of any New Obligations. Each Purchaser hereby disclaims all Liens now creditors’ committee (or if no creditors’ committee is appointed, any party in interest) to investigate and challenge (and to the future granted by any Credit Party and/or Biovest to extent successful, avoid) any such Purchaser in liens, security interests and claims for a period of 45 days from the Excluded Collateral prior petition date, (b) an acknowledgment by the Borrowers and a finding by the Court as to the Discharge amount of the Senior Obligations. It is understood Pre-Petition Debt and agreed the validity of Agent’s liens, on behalf of Lenders, on the Pre-Petition Collateral, (c) a waiver by all parties hereto that Borrowers of any right to assert a surcharge or other claim under Section 506(c) of the Bankruptcy Code against any of the Collateral, (d) a waiver by Borrowers of any right to assert or require marshalling of any Collateral, and (e) preclusion of any Post-Petition financing, on a priming basis or otherwise, other than pursuant to this Agreement (and any Debt provided by Chubb which is acceptable to Agent in the good faith exercise of its credit judgment), unless such Post-Petition financing first finally and indefeasibly satisfies the Obligations (including any Pre-Petition Debt) outstanding to Agent and Lenders in full in cash and all Commitments of Agent and Lenders under the DIP Facility are terminated (and all Letters of Credit are terminated or otherwise discharged or indemnified against in such manner and to such extent as is satisfactory to Agent in the good faith exercise of its credit judgment), or Agent and Lenders consent to such financing. Fiscal Quarter - each three month period ending each March, June, September and December. Fiscal Year - the fiscal year of Parent and its Subsidiaries for accounting and tax purposes, which ends on September 30 of each year. FLSA - the Fair Labor Standards Act of 1938. Foreign Subsidiary - a Subsidiary that is not a Domestic Subsidiary. Funding Account - an account established by Borrowers or any of them for receipt of proceeds of Loans or such other than account as Borrowers may specify in writing. GAAP - generally accepted accounting principles in the provisions expressly dealing with the Excluded Collateral) does not apply United States of America in effect from time to time. General Intangibles - all general intangibles of a Credit Party, whether now owned or relate to hereafter created or govern acquired by a Credit Party, including all choses in any manner whatsoever the Liens action, causes of action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all claims under guaranties, security interests or other security held by or granted to Senior Lender a Credit Party to secure the Senior Obligations payment of any of a Credit Party’s Accounts by Biovest or any an Account Debtor, all rights to indemnification and all other intangible property of a Credit Party of every kind and nature (other than the Liens in the Junior Priority Collateral granted by the Company to Senior LenderAccounts). Governmental Approvals - all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and that reports to, all Governmental Authorities. Governmental Authority - any assets federal, state, municipal, national, foreign or property pledged by Biovest other governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any Credit Party (other than entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the Junior Priority Collateral) to secure United States, the Senior Obligations shall not be subject District of Columbia or a foreign entity or government. Guarantors – the Persons on Annex II attached to the terms Agreement and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge each other Person who guarantees payment or performance of the Senior whole or any part of the Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

Excluded Collateral. For avoidance Notwithstanding the foregoing provisions of doubtthis §2, it is understood such grant of security interest shall not extend to, and agreed the term "Collateral" shall not include, any chattel paper and general intangibles which are now or hereafter held by the Company as licensee, lessee or otherwise, to the extent that (a) such chattel paper and general intangibles are not assignable or capable of being encumbered as a matter of law or under the terms of the license, lease or other agreement applicable thereto (but solely to the extent that any such restriction shall be enforceable under applicable law), without the consent of the licensor or lessor thereof or other applicable party thereto and (b) such consent has not been obtained; provided, however, that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligationsforegoing grant of security interest shall extend to, and the term "Collateral" shall include, (i) any and all proceeds of such chattel paper and general intangibles to the extent that the assignment or encumbering of such proceeds is not so restricted and (ii) upon any such licensor, lessor or other applicable party consent with respect to any such otherwise excluded chattel paper or general intangibles being obtained, thereafter such chattel paper or general intangibles as well as any and all proceeds thereof that might have theretofore have been excluded from such grant of a security interest and the term "Collateral." 2.4. Patent and Trademark Assignments. Concurrently herewith the Company is executing and delivering to the Agent, for the benefit of the date Banks and the Agent, the Patent Assignment and the Trademark Assignment pursuant to which the Company is assigning to the Agent, for the benefit of the Banks and the Agent, certain Collateral consisting of patents and patent rights and trademarks, service marks and trademark and service ▇▇▇▇ rights, together with the goodwill appurtenant thereto. The provisions of the Patent Assignment and the Trademark Assignment are supplemental to the provisions of this Agreement, no such Liens and nothing contained in the Excluded Collateral have been provided by Patent Assignment or the Credit Parties Trademark Assignment shall derogate from any of the rights or Biovest to secure remedies of the Agent or any New Obligationsof the Banks hereunder. Each Purchaser hereby disclaims all Liens now or Nor shall anything contained in the future granted by any Credit Party and/or Biovest Patent Assignment or the Trademark Assignment be deemed to any such Purchaser in prevent or extend the Excluded Collateral prior to the Discharge time of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply attachment or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession perfection of any Excluded Collateral, security interest in such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lendercreated hereby.

Excluded Collateral. For avoidance of doubtNotwithstanding the foregoing, it the security interest granted under Section 2.1 shall not attach to and the term “Collateral” shall not include (a) any Lease, license, permit, concession, authorization, Material Contract, property rights or agreement to which each Grantor is understood and agreed that the Credit Parties and Biovest, which are obligors under a party or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as any of the date Grantor’s rights or interests thereunder if the grant of this Agreementsuch security interest shall constitute or result in (i) the abandonment, no such Liens in invalidation or unenforceability of any material right, title or interest of any Grantor therein or (ii) a termination pursuant to the Excluded Collateral have been provided by the Credit Parties terms of, or Biovest a default which would give rise to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest a right to terminate under, any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement Lease, license, permit, concession, authorization, Material Contract, property rights or agreement (other than to the provisions expressly dealing with extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest UCC (or any Credit Party successor provision or provisions) of any relevant jurisdiction or any other applicable law (other than including the Liens Bankruptcy Code) or principles of equity), (b) applications filed in the Junior Priority Collateral granted by U.S. Patent and Trademark Office (the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral“USPTO”) to secure register trademarks or service marks on the Senior Obligations basis of any Grantor’s “intent to use” such marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted, whereupon such applications shall not be automatically subject to the terms Lien granted herein and provisions deemed included in the Collateral, (c) any of this Agreementthe Equity Interests of a Foreign Subsidiary in excess of sixty-five percent (65%) of the issued and outstanding Equity Interests of such Foreign Subsidiary entitled to vote (representing not greater than sixty-five percent (65%) of the total combined voting power of all classes of Equity Interests entitled to vote) (within the meaning of Treas. Notwithstanding anything Reg. Section 1.956-2(c)(2) or any successor or similar statute), (d) Equity Interests in Excluded Joint Ventures, (e) any assets subject to a Capital Lease Obligation or purchase money security interest to the contrary contained hereinextent that contract governing such transactions prohibits the granting of a lien in such assets and (f) an amount equal to $55,362,740 held in account number 134757548 at JPMorgan Chase Bank until December 31, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender2006.

Excluded Collateral. For avoidance Notwithstanding the broad grant of doubtthe security interest set forth in Section 3.1 above, it is understood the Collateral shall not include any of the following (collectively, the “Excluded Assets”): (a) (i) more than sixty-five percent (65%) of the presently existing and agreed hereafter arising issued and outstanding Equity Interests directly owned by any Loan Party of any Foreign Subsidiary or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or any other matter, if ▇▇▇▇▇▇▇▇ demonstrates to the reasonable satisfaction of Agent that a pledge and security interest in more than sixty-five percent (65%) of the Credit Parties presently existing and Biovesthereafter arising issued and outstanding Equity Interests would create a present and existing adverse tax consequence to Borrower under the Code or (ii) any assets of an Excluded Subsidiary; (b) non-assignable licenses or contracts, including without limitation any licenses described in clause (ii) of the defined term “Permitted Transfers”, which are obligors by their terms require the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9-406, 9-407 and 9-408 of the UCC), provided further, that upon the termination of such prohibition or otherwise guarantee the Senior Obligationssuch consent being provided with respect to any license or contract, have granted Senior Lender Liens such license or contract shall automatically be included in the Excluded Collateral; (c) property for which the granting of a security interest therein is contrary to applicable law, provided that upon the cessation of any such restriction or prohibition, such property shall automatically be included in the Collateral; (d) any cash collateral deposit subject to a Permitted Lien hereunder, if the grant of a security interest with respect to such property pursuant to this Agreement would be prohibited by the agreement creating such Permitted Lien or would otherwise constitute a default thereunder or create a right of termination a party thereto (other than Borrower), provided that upon the termination and release of such cash collateral, such property shall automatically be included in the Collateral including, for the sake of clarity, any cash collateral securing that certain letter of credit for Borrower’s leased property at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (e) any lease, license or other agreement and any property subject thereto on the Senior Obligations, and that as of Closing Date or on the date of this Agreement, no the acquisition of such Liens in the Excluded Collateral have been provided property (other than any property acquired by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit a Loan Party and/or Biovest subject to any such Purchaser in the Excluded Collateral prior contract or other agreement to the Discharge extent such contract or other agreement was incurred in contemplation of such acquisition) to the Senior Obligations. It is understood and agreed by all parties hereto extent that this Agreement a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, license, contract or agreement or create a right of termination in favor of any other party thereto (other than the provisions expressly dealing Borrower, any other Loan Party or any Subsidiary) (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Article 9 of the UCC); (f) any assets as to which Agent in its reasonable discretion shall determine that the costs and burdens of obtaining or perfecting a security interest therein substantially outweigh the benefit to the Lenders of the security afforded thereby (including, without limitation, vehicles or other assets subject to a certificate of title); (g) any “intent to use” trademarks at all times prior to the first use thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the Excluded CollateralUnited States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest (or any Credit successor provision) such intent-to-use application shall constitute Collateral; (h) any interest of a Loan Party as a lessee or sublessee under a real property lease; (other than the Liens i) any accounts sold and any security interests granted in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject such accounts pursuant to the terms and provisions of this Agreement. Notwithstanding anything to of, or in connection with, the contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of Permitted Receivables Factoring Arrangement; (j) any Excluded Collateral, such Purchaser shall hold same Accounts (including any Cash contained therein) and (k) any other assets as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause may be agreed by Agent in writing in its sole discretion to be delivered any such Excluded Collateral to the Senior Lenderexcluded from Collateral.

Excluded Collateral. For avoidance Notwithstanding Section 2.1, the Collateral shall not include (collectively, “Excluded Collateral”): (a) any property held in trust by the Borrower and lawfully belonging to others, (b) the last day of doubtthe term of any lease of real property, it is understood and agreed provided that the Credit Parties Borrower shall stand possessed of such last day and Biovestshall assign and transfer such interest as instructed by the Lender; (c) with respect to Section 2.1(c), any consumer goods used as such by the Borrower, (d) any permit, lease or license or any contractual obligation entered into by Borrower (i) that prohibits or requires the consent of any Person other than Borrower and its Subsidiaries which are obligors under has not been obtained as a condition to the creation by Borrower of a Lien on any right, title or interest in such permit, lease, license or contractual obligation or any Capital Stock or equivalent thereof related thereto or that contains terms stating that the granting of a lien therein would otherwise result in a material loss by Borrower of any material rights therein, (ii) to the extent that any law applicable thereto prohibits the creation of a Lien thereon or (iii) to the extent that a Lien thereon would give any other party a legally enforceable right to terminate such permit, lease, license or any contractual obligation, but only, with respect to the prohibition in (i), (ii) and (iii) to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided deemed ineffective by the Credit Parties PPSA or Biovest any other applicable law, (e) property or assets owned by Borrower that is subject to secure any New Obligations. Each Purchaser hereby disclaims all Liens now a purchase money Lien or a Capital Lease Obligation if the contractual obligation pursuant to which such Lien is granted (or in the future granted by document providing for such Capital Lease Obligation) prohibits or requires the consent of any Credit Party and/or Biovest Person other than Borrower and its Subsidiaries which has not been obtained as a condition to the creation of any other Lien on such Purchaser property or such assets, (f) any Intent To Use Trademark or any similar Trademark existing under Canadian law and (g) shares of capital stock having voting power in excess of 65% of the voting power of all classes of capital stock of a first tier controlled foreign corporation (as that term is described in the IRC); provided, however, “Excluded Collateral” shall not include any proceeds, products, substitutions or replacements of Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

Excluded Collateral. For avoidance Each reference to Collateral or to any relevant type or item of doubt, it Property constituting Collateral shall be deemed to exclude (i) tangible Property that is understood and agreed that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens not located in the Excluded Collateral securing continental United States (including its possessions), (ii) motor vehicles, forklifts, trailers photocopiers or any property which may be covered by a certificate of title, (iii) the Senior Obligations, and that Equity Interests owned by any Obligor or a Restricted Subsidiary in a Joint Venture to the extent (but only to the extent) (A) the Organization Documents of such Joint Venture or any other agreement relating to such Joint Venture prohibit the granting of a Lien on such Equity Interests or (B) such Equity Interests in such Joint Venture are otherwise pledged as of the date collateral as permitted by Section 9.02(g) of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure however, if any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than foregoing conditions cease to be in effect for any reason, then the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern Equity Interests in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations such Joint Venture shall not automatically be subject to the lien and security interest pursuant to the Collateral Agreement, (iv) any assets, or more than 65% of the capital stock, of any CFC, (v) more than 65% of the Equity Interests of any Excepted Subsidiary, (vi) any lease, license, contract, property rights or agreement to which the Borrower or any Subsidiary is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of such Person therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code); provided, however that such security interest shall, unless otherwise not excluded from the Collateral under the Loan Documents, attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and provisions to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (A) or (B) above, (vii) any Property subject to a Lien permitted by Section 9.02(b), (d) or (e) of this Agreement. Notwithstanding anything to , (viii) any Property owned EXLP or its Subsidiaries, (ix) the contrary contained hereinEquity Interests in, if for and any reason, prior to the Discharge of the Senior ObligationsProperty of, any Purchaser acquires possession of any Excluded CollateralABS Subsidiary, such Purchaser shall hold same as bailee and/or agent for (x) the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.GP Interests and IDRs and (xi) Equity Interests in Hanover Cayman Limited and Production Operators Cayman Inc.

Excluded Collateral. For avoidance of doubt, it is understood and agreed that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to the contrary contained hereinherein or any other Loan Document, if (a) the grant of the security interest contained in §2.1 (and any grant of security by a Loan Party contained in any other Security Document) shall not extend to, and the term “Collateral” (as used herein and in the Credit Agreement and any other Security Document) shall not include the following (collectively, the “Excluded Assets”): (i) any directly held Equity Interests (whether classified as investment property or as a general intangible) or general intangible, now or hereafter held or owned by a Loan Party (other than directly held Equity Interests (however classified) in a Person that is a Borrower, Guarantor or Wholly-Owned Restricted Subsidiary) to the extent either (x) that a security interest may not be granted by such Loan Party in such directly held Equity Interests or general intangible, as the case may be, (A) as a matter of law, or (B) under the terms of the governing document, joint venture agreement or shareholders agreement, as the case may be, applicable thereto, without the consent of one or more applicable third parties thereto and such consent has not been obtained, or (y) that the granting of a security interest would give rise to a “right of first refusal”, a “right of first offer” or similar right that may be exercised by a third party pursuant to the applicable governing document, joint venture agreement or shareholders agreement (each, a “Non-Transferable Interest”); (ii) any Equity Interest (whether classified as investment property or as a general intangible) in any Person that is a joint venture (and not also a Borrower, Guarantor or Wholly-Owned Restricted Subsidiary), which Equity Interest is pledged by the applicable Loan Party to a third party to secure any obligations of such Loan Party incurred on behalf of a joint venture so long as the Investment in such Person and the obligation relating thereto are permitted under the terms of the Credit Agreement (a “JV Pledged Interest”); (iii) any Equity Interest (whether classified as investment property or as a general intangible) in any Unrestricted Subsidiary (a “Unrestricted Subsidiary Interest”); (iv) any Equity Interest (whether classified as investment property or as a general intangible) in (x) any Foreign Subsidiary; (y) any FSHCO or (z) any domestic Restricted Subsidiary of either of the foregoing, other than 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of any first tier Foreign Subsidiary that is a CFC (a “Foreign Subsidiary Interest”); (v) any C-Store Real Estate (but only the actual real property and, for the avoidance of doubt, the term “Collateral” does include any inventory or other personal property located thereon) (unless the Administrative Agent determines that such C-Store Real Estate also contains a terminal or is needed or desirable for access to a terminal location); (vi) any property subject to a purchase money security interest or Permitted Lien with respect to a Capitalized Lease (but only while such property is subject to such security interest or Permitted Lien), in each case to the extent permitted under the Loan Documents, to the extent that a grant of a security interest in such property would (A) violate, invalidate, result in the abandonment or unenforceability of, or terminate such arrangement or (B) create a right of termination in favor of any party thereto (other than a Loan Party or any of its Affiliates) and, in each case, the provisions described in clauses (A) and (B) which would otherwise restrict the Loan Party granting a security interest therein is effective under applicable law; (vii) any (i) deposit account or securities account described in clause (a) or clause (c) of the definition of Excluded Accounts, and (ii) any cash collateral accounts described in clause (d) of the definition of Excluded Accounts; and (viii) any intent-to-use United States trademark applications for which a statement of use has not been filed with and duly accepted by the United States Patent and Trademark Office (to the extent that, and solely during the period in which, the grant of a security interest would impair the validity or enforceability of such intent-to-use United States trademark application under federal law). (b) The grant of the security interest contained in §2.1. shall extend to, and the term “Collateral” shall include (i) any and all proceeds of such Excluded Assets to the extent that the proceeds are not themselves Excluded Assets, (ii) upon any such applicable party or parties' consent with respect to any otherwise excluded Non-Transferable Interests being obtained (or with respect to the restriction contained in §2.4(a)(i)(y) such “right of first refusal”, a “right of first offer” or similar right no longer existing), thereafter such directly held investment property or general intangibles, (iii) such JV Pledged Interests to the extent such JV Pledged Interests are no longer subject to a security interest, (iv) all personal property located on or associated with any C-Store Real Estate, and all proceeds and products of all C-Store Real Estate, and (v) assets described in §2.4(a)(i) and (a)(vi) (A) to the extent that such exclusions, prohibitions, consents, requirements or violations are ineffective under applicable anti-assignment provisions of the UCC or other applicable Law, (B) in the event of a termination or elimination of any such exclusion, prohibition, requirement for any reasonconsent or other requirement, prior or violation contained in such contract, agreement, permit, lease or license or in any applicable Law, to the Discharge of extent sufficient to permit any such item to become Collateral, or (C) upon the Senior Obligations, any Purchaser acquires possession granting of any Excluded such consent, approval, license or other authorization or waiving or terminating any requirement for such consent, approval, license or other authorization a security interest in such contract, agreement, permit, lease or license will be automatically and simultaneously granted hereunder and such contract, agreement, permit, lease or license will be included as Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

Excluded Collateral. For avoidance of doubt(a) any permit, it is understood and agreed that the Credit Parties and Biovest, which are obligors under lease or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as of the date of this Agreement, no such Liens in the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement other agreement (other than the provisions expressly dealing with the Excluded Collateralrelating to Accounts, Inventory or Deposit Accounts) does not apply or relate to or govern in which any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest Obligor is a party, or any Credit Party of its rights or interests thereunder, if and for so long as the grant of a security interest therein shall constitute or result in (other than i) the Liens in abandonment, invalidation or unenforceability of the Junior Priority Collateral granted by the Company to Senior Lender)right, and that any assets title or property pledged by Biovest interest of such Obligor therein, (ii) a breach or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject termination pursuant to the terms and provisions of, or a default under, such permit, lease or other agreement, or (iii) in the case of this Agreement. Notwithstanding anything any permit, lease or other agreement of any Governmental Authority (or any Person acting on behalf of a Governmental Authority), the violation of any Applicable Law, or (b) any Equipment owned by any Obligor on the date hereof or hereafter acquired that is subject to a Purchase Money Lien or a Lien securing a Capital Lease permitted to be incurred hereunder if the contract or other agreement (or the documentation providing for such Purchase Money Debt or Capital Lease) in which such Lien is granted validly prohibits the creation of any other Lien on such Equipment or the grant of such Lien shall constitute or result in a breach or termination pursuant to the contrary contained hereinterms or such contract or other agreement; provided, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any in each case that (i) no Accounts or Inventory shall be Excluded Collateral, such Purchaser Collateral and no asset or property shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such considered Excluded Collateral to the Senior Lenderextent the restriction described in the foregoing clauses (a) and (b) would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC or any other applicable law or principles of equity, or to the extent that any necessary consents or waivers have been obtained to allow the security interest in such asset or property notwithstanding such restriction, and (ii) the inclusion of an asset as Excluded Collateral shall not limit, impair or otherwise affect the Agent’s security interest in and Lien upon any rights or interests of any Obligor in or to (x) monies due or to become due under any permit, lease or other agreement to which any Obligor is a party, or (y) any proceeds from the sale, license, lease or other dispositions of any such permit, lease or other agreement, or (c) leasehold interests of any Obligor in any motor vehicles; provided that any proceeds from the sale, license, lease or other disposition of such leasehold interests shall constitute Collateral hereunder (other than proceeds of the disposition of vehicles leased by Obligors (as lessees) where the proceeds are remitted to or retained by the lessor of such vehicles).

Excluded Collateral. For avoidance of doubtCollectively, it is understood and agreed (a) tangible property subject to purchase money liens permitted under Section 10.2 hereof, to the extent that the Credit Parties and Biovestpurchase money documents prohibit the grant of junior liens, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligations, and that as (b) thirty-five percent (35%) of the date Voting Stock of this Agreementany foreign Subsidiary, no such Liens in (c) all of the Excluded Collateral have been provided by the Credit Parties or Biovest to secure Capital Stock of any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior domestic Subsidiary to the Discharge extent that the grant or perfection of the Senior Obligations. It pledge of such Capital Stock would be prohibited by liquor licensing laws or would require the consent of a liquor licensing authority that has not been obtained, (d) other property (including liquor licenses) to the extent that the grant or perfection of a Lien thereon in favor of the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, under the Loan Documents would be prohibited by law or would require the consent of any Governmental Authority that has not been obtained, (e) ground leases, to the extent that any required landlord's consent has not been obtained, (f) all other real property leases, (g) the equipment located at the Wheeling, Illinois restaurant, (h) any Mortgaged Property or any real property acquired after the Closing Date pursuant to Section 10.1(c)(ii), in each case to the extent that such Mortgaged Property or Real Property is understood and agreed by all parties hereto refinanced in accordance with Section 10.1(c) (provided, that this Agreement (other than the provisions expressly dealing any inventory or general intangibles associated with the such Mortgaged Property or Real Property shall not constitute Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest or any Credit Party (other than the Liens in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets (i) Investments in respect of deferred compensation or property pledged by Biovest or any options under the Key Employee Stock Ownership Plan which have vested. Existing Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions of this Agreement. Notwithstanding anything to The Credit Agreement dated as of August 28, 2001, and as amended and in effect on the contrary contained hereinClosing Date, if among the Borrower, Bank of America, N.A., Fleet National Bank, Branch Banking and Trust Company and the other banks which are parties thereto, and Bank of America, N.A., as Agent for any reasonsuch banks. Existing Letters of Credit. The letters of credit set forth on Schedule 1A attached hereto. Fee Letter. The fee letter dated as of September 3, prior to 2002 among the Discharge of Borrower, the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for Administrative Agent and the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior LenderArranger.