Common use of Excluded Collateral Clause in Contracts

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (a) nonassignable licenses or contracts, which 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 9406, 9407 and 9408 of the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to the terms of the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, contract or Equity Interests shall automatically be included in the Collateral, (b) any property which is subject to a capital lease, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination of such prohibition, such property shall automatically be deemed included in the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, and (d) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequences.

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (a) more than 65% of the presently existing and hereafter arising issued and outstanding Equity Interests owned by Borrower of any Foreign Subsidiary or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or any other matter, (b) nonassignable licenses or contracts, including without limitation any licenses described in clause (b) of the defined term “Permitted Transfers,” which 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 9406, 9407 and 9408 of the UCC) or Pledged Collateral consisting of Equity Interests), if pursuant to the terms of the applicable Equity Documentsprovided, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse termination of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, license or contract or Equity Interests shall automatically be included in the Collateral, (bc) any property for which the granting of a security interest therein is subject contrary to a capital leaseapplicable law, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination cessation of any such restriction or prohibition, such property shall automatically be deemed included in the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, and ; (d) any Excluded Accounts. In addition; (e) any cash collateral deposit subject to a Permitted Lien hereunder, in if the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests grant of a Restricted Foreign Subsidiary of New Parent security interest with respect to result in material adverse tax consequences such property pursuant to the Borrower (as reasonably determined 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 Collateral termination and release of such cash collateral, such property shall automatically be included in the Collateral; (f) any lease, license or other agreement and without further action required byany property subject thereto on the Closing Date or on the date of the acquisition of such property (other than any property acquired by a Loan Party subject to any such contract or other agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, and without notice tolicense, contract or agreement or create a right of termination in favor of any other party thereto (other than the Borrower, any Person exclude other Loan Party or any Subsidiary) (but (A) only to the extent such Equity Interests 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 such Restricted Foreign Subsidiary in excess Article 9 of the maximum percentage UCC); (g) any assets as to which the 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 outstanding Equity Interests security afforded thereby (including, without limitation, vehicles or other assets subject to a certificate of such Restricted Foreign Subsidiary that title); and (h) any other assets as may be pledged without causing such adverse tax consequencesagreed by the Agent in writing in its sole discretion to be excluded from Collateral.

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (a) more than 65% of the presently existing and hereafter arising issued and outstanding Equity Interests owned by Borrower of any Foreign Subsidiary or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or any other matter, (b) nonassignable licenses or contracts, including without limitation any licenses described in clause (b) of the defined term “Permitted Transfers”, which 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 9406, 9407 and 9408 of the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to the terms of the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company), provided further, that upon the lapse termination of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, license or contract or Equity Interests shall automatically be included in the Collateral, (bc) any property for which the granting of a security interest therein is subject contrary to a capital leaseapplicable law, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination cessation of any such restriction or prohibition, such property shall automatically be deemed included in the Collateral, ; (cd) any trademark application filed Excluded Accounts; (e) 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; (f) any lease, license or other agreement and any property subject thereto on an the Closing Date or on the date of the acquisition of such property (other than any property acquired by a Loan Party subject to any such contract or other agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that 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 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); (g) any assets as to which the 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); (h) any “intent-to-intent to use” basis until trademarks at all times prior to the earlier of first use thereof, whether by the filing actual use thereof in commerce, the recording of a statement of use with respect thereto the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the issuance United States Patent and Trademark Office of a registration therefor, an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor provision) such intent-to-use application shall constitute Collateral and (di) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (other assets as reasonably determined may be agreed by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary Agent in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may writing in its sole discretion to be pledged without causing such adverse tax consequencesexcluded from Collateral.

Excluded Collateral. (a) Notwithstanding anything to the broad grant of the security interest contrary set forth in Section 3.1, 5.1 above, the types or items of Collateral described in such Section shall not include (a) nonassignable licenses any rights or contractsinterests in any contract, which by their lease, permit, license, charter or license agreement covering real or personal property, as such, if under the terms require of such contract, lease, permit, license, charter or license agreement, or applicable law with respect thereto, the valid grant of a security interest or lien therein to Agent is prohibited and such prohibition has not been or is not waived or the consent of the licensor thereof other party to such contract, lease, permit, license, charter or another party license agreement has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; provided, that, the foregoing exclusion shall in no way be construed (but only a) to apply if any such prohibition is unenforceable under Sections 9-406, 9-407, and 9-408 of the UCC or other applicable law or (b) so as to limit, impair or otherwise affect Lender’s unconditional continuing security interests in and liens upon any rights or interests of any Borrower in or to monies due or to become due under any such contract, lease, permit, license, charter or license agreement (including any Receivables). (b) Notwithstanding anything to the extent contrary set forth in Section 5.1 above, the types or items of Collateral described in such prohibition on transfer is enforceable under applicable law, Section shall not include any of the real and personal property (including, without limitation, Sections 9406the “Improvements” and “Equipment”) and fixtures of Wachovia Development Corporation, 9407 and 9408 whether now owned or hereafter acquired upon which a lien is purported to be created by one or more of the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to “Mortgage Instruments” and/or the “Security Agreement.” The quoted terms of used in this Section shall have the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, contract or Equity Interests shall automatically be included meanings set forth in the Collateral, (b) any property which is subject to a capital lease, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination of such prohibition, such property shall automatically be deemed included in the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, and (d) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequencesSynthetic Lease Facility Agreements.

Excluded Collateral. Notwithstanding the broad grant The following assets of the security interest set forth in Section 3.1, above, Grantors shall be excluded from the Collateral shall not include Collateral: (a) nonassignable licenses or contracts, which by their terms require the consent of the licensor thereof or another party (but only to the extent purchase money Liens on such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 equipment and 9408 of the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to the terms of the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, contract or Equity Interests shall automatically be included in the Collateral, (b) any property other fixed assets which is subject to a capital lease, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing Financing Documents so long as such Lien attaches only to the property so acquired or leased with such purchase money obligations and to the extent the agreement or would result in a termination thereofcreating such Lien prohibits additional Liens on such property; (b) certificated motor vehicles, and provided further, that upon unless requested by the termination of such prohibition, such property shall automatically be deemed included in the Collateral, Required Secured Parties; (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, Rate Management Obligation Cash Collateral and (d) Excluded Accounts. In additionother property with a fair market value that, individually or in the aggregate with all other such property, is not, in the event any change in the U.S. tax laws would cause a pledge of some or all judgment of the outstanding Equity Interests of Required Secured Parties, material. Notwithstanding anything contained herein, (i) the Agent shall be permitted to take a Restricted security interest in and a Lien on the assets owned by any Foreign Subsidiary of New Parent solely as security for the obligations owing by Foreign Subsidiaries under the 2008 Credit Agreement and procure guaranties from any Foreign Subsidiary solely for the obligations owing by Foreign Subsidiaries under the 2008 Credit Agreement, and the Agent shall not be required to result in material adverse tax consequences make such security interest and Lien or guaranty available to the Borrower Collateral Agent for the benefit of the Noteholders, and (ii) any 2008 Lender or its Affiliates party to Rate Management Transactions in existence on the date hereof (as reasonably determined by amended or modified from time to time, provided that such amendments or modifications do not increase or extend the Borrower), monetary obligations due thereunder) with Company or any of its Subsidiaries shall be permitted to take a security interest in Rate Management Obligation Cash Collateral as security for the Rate Management Obligations under such Rate Management Transactions and they shall not be required to make such security interest and Lien available to the Collateral shall automatically and without further action required by, and without notice to, Agent for the benefit of any Person exclude such Equity Interests of such Restricted Foreign Subsidiary in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequencesother Secured Party.

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (a) nonassignable licenses building fixtures (as opposed to trade fixtures) located on premises leased by any Obligor to the extent the pledge thereof or contractsgrant of a security interest therein is (i) validly prohibited by the lease governing such premises and (ii) would result in the forfeiture of any Obligor’s right, title or interest thereunder under Applicable Law, provided, however, that at such time as any such grant of a security interest in any such fixtures shall not result in a forfeiture under Applicable Law, such fixtures shall (without any further act or delivery by any Person) constitute Collateral hereunder; (b) in the case of the Swiss Borrower, types of Property for which security interest grants and pledges may not be validly granted as a matter of Swiss law; (c) any Investment Property or General Intangibles or assets governed thereby (including any license, contract, permit, lease or franchise to the extent deemed a General Intangible), now or hereafter held or owned by their any Grantor (which in no event shall include any assets that are included in the computation of the Borrowing Base), to the extent, in each case, that (i) a security interest may not be granted by a Grantor in such Investment Property or General Intangibles as a matter of law or (i) a security interest may not be granted under the express terms require of the governing documents applicable to such General Intangible or Investment Property, without the consent of one or more applicable parties thereto; (d) equipment acquired after the licensor thereof or another party (but only Closing Date pursuant to Capital Leases to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of that the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to agreements with respect thereto prohibit the terms of the applicable Equity Documents, a pledge inclusion of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, contract or Equity Interests shall automatically be included in the equipment as Collateral, ; and (be) any property which is subject to a capital lease, purchase money Lien or similar equipment financing permitted under this Agreement, but only intent-to-use trademark application to the extent and for as so long as creation by a Lien in favor Obligor of Agent would be prohibited by the terms of the related equipment financing agreement or a security interest therein would result in a termination the abandonment, invalidation or unenforceability thereof, and provided furtherprovided, however, that upon the termination of such prohibition, such property shall automatically be deemed included in the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, and (d) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), the Collateral shall automatically and without further action required bynot include any proceeds, and without notice tosubstitutions or replacements of any Excluded Collateral referred to in this clause (e) (unless such proceeds, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary substitutions or replacements would constitute Excluded Collateral referred to in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequencesthis clause (e)).

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the UCC Collateral shall not include (a) 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 United 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) (or any successor provision) such intent-to-use application shall constitute Collateral, and (b) nonassignable licenses or contracts, including, without limitation, any licenses described in clause (ii) of the defined term “Permitted Transfers”, which by their terms require the consent of the licensor thereof or another party (but only to the extent (i) such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 94069-406, 9407 9-407 and 9408 9-408 of the UCCUCC and (ii) no consent or Pledged Collateral consisting of Equity Interests, if pursuant waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the terms of prohibition or restriction on the applicable Equity Documents, a pledge of such Equity Interests would be prohibited lease, license or void agreement), (c) any lease, license or would require other agreement and any property subject thereto on the consent Closing Date or on the date of or waiver by the applicable Platform Company, provided further, that upon the lapse acquisition of such prohibition or such consent or waiver being provided with respect property (other than any property acquired by Borrower subject to any license such contract or contractother agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, such license, contract or Equity Interests agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Subsidiary) (but (A) only to the extent such prohibition is enforceable under applicable law, rule or regulation, 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), (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 otherwise constitute a default thereunder or create a right of termination of any other party thereto (other than Borrower or a Subsidiary), provided that upon the termination and release of such collateral, such property shall automatically be included in the Collateral, (be) any property Excluded Account and (f) assets as to which is subject to a capital lease, purchase money Lien the costs of obtaining or similar equipment financing permitted under this Agreement, but only perfecting such security interest are excessive in relation to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms value of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination of such prohibition, such property shall automatically security to be deemed included in the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier of the filing of a statement of use with respect thereto or the issuance of a registration therefor, and (d) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (afforded thereby as reasonably determined by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary Agent in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequencesits sole discretion.

Excluded Collateral. (a) Notwithstanding the broad grant of the security interest set forth in Section 3.1, 3.1 above, the Collateral shall not include, and no Lien or security interest is hereby granted on, (i) any Intellectual Property, whether now owned or hereafter acquired, provided, however, other than the assets or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject to the proviso contained in each of such sections), the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (athe “Rights to Payment”) nonassignable licenses (ii) any assets or contracts, which by their terms require the consent proceeds thereof that are the subject of the licensor Liens permitted under clauses (xv) through (xxii) of Permitted Liens, provided that upon the termination by the applicable holder thereof or another party expiration of any prohibition on the granting of Liens thereon, such assets (but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 they do not consist of the UCCIntellectual Property) or Pledged Collateral consisting of Equity Interests, if pursuant to the terms of the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company, provided further, that upon the lapse of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, contract or Equity Interests shall automatically be included subject to the security interest granted in favor of Agent hereunder and become part of the Collateral, (biii) any assets or proceeds that are the subject of clause (ii) of Permitted Negative Pledges, provided that upon the termination by the applicable holder thereof or expiration of any prohibition on the granting of Liens thereon, such assets (to the extent they do not consist of Intellectual Property) shall automatically be subject to the security interest granted in favor of Agent hereunder and become part of the Collateral, (iv) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (v) cash or cash equivalents securing obligations permitted under clause (vii) of the definition of Permitted Indebtedness [relating to letter of credit and corporate credit card reimbursement obligations], (vi) equity or ownership interests in XOMA CDRA, (vii) raw materials paid for or the cost of which has been reimbursed by NIAID or another agency of the U.S. government which are being or will be utilized in the conduct of activities under one or more contracts between any Loan Party and such governmental institute or agency, (viii) property which owned by any Loan Party that is subject to a capital lease, purchase money Lien or similar equipment financing a capital lease and the proceeds thereof permitted under this Agreementthe Loan Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits, but or requires the consent of any person other than a Loan Party which has not been obtained as a condition to the creation of, any other Lien on such property, or (ix) any permit or license (I) issued by a governmental authority to any Loan Party or agreement to which any Loan Party is a party or (II) for the use of another person’s Intellectual Property, in each case, only to the extent and for as so long as the terms of such permit, license or agreement or any requirement of law applicable thereto, validly prohibit the creation by such Loan Party of a Lien security interest in such permit, license or agreement in favor of the Agent and Lenders (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a), or 9-409 of the UCC (or any successor provision or provisions). (b) Notwithstanding the foregoing clause 3.2(a), if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the assets or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject to the proviso contained in each of such sections)) to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment. (c) Each of Agent and Lender hereby agrees that, if Agent obtains a security interest in the Intellectual Property pursuant to the foregoing clause 3.2(b), Agent will not exercise any remedies (under the UCC or otherwise) with respect to the Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the assets or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject to the proviso contained in each of such sections)). Nothing in the foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to Intellectual Property that are otherwise permitted under the Loan Documents or (ii) require the Loan Parties to seek any third party’s consent to the pledge of any Intellectual Property to the Agent that is subject to a Permitted Negative Pledge. Notwithstanding Section 7.3, the filing of a security agreement with the United States Patent and Trademark Office shall not be required in connection with any security interest on the Intellectual Property described in the foregoing clause 3.2(b). (d) For purposes of clarification and the avoidance of doubt, at such time as any prohibition on assets or proceeds thereof described in Sections 3.2(a)(ii) and 3.2(a)(iii) becoming subject to the security interest in favor of Agent would be prohibited by is terminated or expires as contemplated in the terms of the related equipment financing agreement or would result proviso in a termination thereof, and provided further, that upon the termination each of such prohibitionsections, such property assets shall automatically be deemed included in Intellectual Property and the Collateral, (c) any trademark application filed on an “intent-to-use” basis until the earlier proceeds of the filing such assets shall be deemed proceeds of a statement of use with respect thereto or the issuance of a registration therefor, and (d) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences Intellectual Property that are subject to the Borrower (as reasonably determined by the Borrowerprovisions of Section 3.2(a)(i), the Collateral shall automatically 3.2(b) and without further action required by3.2(c), and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequencesas applicable.

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the UCC Collateral shall not include (a) 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 United 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) (or any successor provision) such intent-to-use application shall constitute Collateral, and (b) nonassignable licenses or contracts, including, without limitation, any licenses described in clause (ii) of the defined term “Permitted Transfers”, which by their terms require the consent of the licensor thereof or another party (but only to the extent (i) such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 94069-406, 9407 9-407 and 9408 9-408 of the UCCUCC and (ii) no consent or Pledged Collateral consisting of Equity Interests, if pursuant waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the terms of prohibition or restriction on the applicable Equity Documents, a pledge of such Equity Interests would be prohibited lease, license or void agreement), (c) any lease, license or would require other agreement and any property subject thereto on the consent Closing Date or on the date of or waiver by the applicable Platform Company, provided further, that upon the lapse acquisition of such prohibition or such consent or waiver being provided with respect property (other than any property acquired by Borrower subject to any license such contract or contractother agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, such license, contract or Equity Interests agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Subsidiary) (but (A) only to the extent such prohibition is enforceable under applicable law, rule or regulation, 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), (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 otherwise constitute a default thereunder or create a right of termination of any other party thereto (other than Borrower or a Subsidiary), provided that upon the termination and release of such collateral, such property shall automatically be included in the Collateral, (be) any property Excluded Account and (f) assets as to which is subject to a capital lease, purchase money Lien the costs of obtaining or similar equipment financing permitted under this Agreement, but only perfecting such security interest are excessive in relation to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms value of the related equipment financing agreement or would result security to be afforded thereby as determined by Agent in a termination thereofits sole discretion. 3.3 Company, COMPASS Pathfinder Holdings and provided furtherCOMPASS Pathfinder Limited have entered into the English Security Documents pursuant to which they have granted security interests on, that upon to and under the termination of collateral described therein (such prohibitioncollateral, such property shall automatically be deemed included in with the UCC Collateral, (c) any trademark application filed on an collectively, the “intent-to-use” basis until the earlier of the filing of a statement of use with Collateral”). With respect thereto or the issuance of a registration thereforto Company, COMPASS Pathfinder Holdings and (d) Excluded Accounts. In additionCOMPASS Pathfinder Limited, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary conflict between Section 3.1 of New Parent to result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may be pledged without causing such adverse tax consequences.this

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (collectively, the “Excluded Collateral”): (a) Excluded Intellectual Property, (b) more than 65% of the presently existing and hereafter arising issued and outstanding Equity Interests owned by Borrower of any Foreign Subsidiary or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or any other matter, (c) nonassignable licenses or contracts, including without limitation any licenses described in clause (b) of the defined term “Permitted Transfers”, which 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 9406, 9407 and 9408 of the UCC) or Pledged Collateral consisting of Equity Interests, if pursuant to the terms of the applicable Equity Documents, a pledge of such Equity Interests would be prohibited or void or would require the consent of or waiver by the applicable Platform Company), provided further, that upon the lapse termination of such prohibition or such consent or waiver being provided with respect to any license or contract, such license, license or contract or Equity Interests shall automatically be included in the Collateral, (bd) any property for which the granting of a security interest therein is subject contrary to a capital leaseapplicable law, purchase money Lien or similar equipment financing permitted under this Agreement, but only to the extent and for as long as a Lien in favor of Agent would be prohibited by the terms of the related equipment financing agreement or would result in a termination thereof, and provided further, that upon the termination cessation of any such restriction or prohibition, such property shall automatically be deemed included in the Collateral, ; (ce) any trademark application filed Excluded Accounts; (f) 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; (g) any lease, license or other agreement and any property subject thereto on an the Closing Date or on the date of the acquisition of such property (other than any property acquired by a Loan Party subject to any such contract or other agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that 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 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); (h) any assets as to which the 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); (i) any “intent-to-intent to use” basis until trademarks at all times prior to the earlier of first use thereof, whether by the filing actual use thereof in commerce, the recording of a statement of use with respect thereto the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the issuance United States Patent and Trademark Office of a registration thereforan amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor provision) such intent-to-use application shall constitute Collateral, (j) any Inventory related to an Optioned Program (as defined the Gilead Collaboration Agreement) or Opt-in Asset, and (dk) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all of the outstanding Equity Interests of a Restricted Foreign Subsidiary of New Parent to result in material adverse tax consequences to the Borrower (other assets as reasonably determined may be agreed by the Borrower), the Collateral shall automatically and without further action required by, and without notice to, any Person exclude such Equity Interests of such Restricted Foreign Subsidiary Agent in excess of the maximum percentage of the outstanding Equity Interests of such Restricted Foreign Subsidiary that may writing in its sole discretion to be pledged without causing such adverse tax consequencesexcluded from Collateral.