Common use of Excluded Collateral Clause in Contracts

Excluded Collateral. Anything contained in this Security Agreement to the contrary notwithstanding, the term “Collateral” shall not include (a) any Equipment or Intellectual Property that is now or hereafter held by any Obligor as a lessee, licensee, or debtor under purchase money secured financing or a Capital Lease, to the extent that: (i) as a result of the grant of a security interest or Lien therein, such Obligor’s rights in or with respect to such asset would be forfeited or such Obligor would be deemed to have breached or defaulted under the applicable lease, license, or other agreement; and (ii) any such restriction is effective and enforceable under applicable law, including after giving full effect to Section 9-406 of the UCC, (b) except as otherwise provided in the Credit Agreement, more than 65% of the voting Equity Securities of any Foreign Subsidiary of an Obligor or (c) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (a) of this Section 2.02, and (2) such assets referred to in clause (a) of this Section 2.02 at any time that the restrictions in the lease, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest and Lien in and to such asset in favor of the Collateral Agent, for the benefit of the Secured Parties.

Excluded Collateral. Anything contained Notwithstanding the broad grant of the security interest set forth in this Security Agreement to the contrary notwithstandingSection 3.1, above, the term “Collateral” Collateral shall not include (a) any Equipment 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 Intellectual Property that is now Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or hereafter held 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 any Obligor as a lessee, licensee, their terms require the consent of the licensor thereof or debtor under purchase money secured financing or a Capital Lease, another party (but only to the extent that: such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), provided further, that upon the termination of such prohibition or such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the Collateral, (id) as property for which the granting of a result 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; (e) any Excluded Accounts; and (f) any cash collateral deposit subject to a Permitted Lien hereunder, if the grant of a security interest or Lien therein, such Obligor’s rights in or with respect to such asset property pursuant to this Agreement would be forfeited 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 Obligor would cash collateral, such property shall automatically be deemed to have breached or defaulted under the applicable lease, license, or other agreement; and (ii) any such restriction is effective and enforceable under applicable law, including after giving full effect to Section 9-406 of the UCC, (b) except as otherwise provided included in the Credit Agreement, more than 65% of the voting Equity Securities of any Foreign Subsidiary of an Obligor or (c) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (a) of this Section 2.02, and (2) such assets referred to in clause (a) of this Section 2.02 at any time that the restrictions in the lease, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest and Lien in and to such asset in favor of the Collateral Agent, for the benefit of the Secured Parties.

Excluded Collateral. Anything contained in this The Security Agreement Interest granted under Section 3.1 shall not attach to the contrary notwithstanding, following property (collectively referred to as the term “Collateral” shall not include Excluded Property”): (a) any Equipment or Intellectual Property that is now or hereafter held by any Obligor as a lessee, licensee, or debtor under purchase money secured financing or a Capital Lease, to the extent that: (i) as a result of the grant of a security interest or Lien therein, such Obligor’s rights in or with respect to such asset would be forfeited or such Obligor would be deemed to have breached or defaulted under the applicable lease, license, contract, property rights or other agreement; and agreement to which the Borrower is a party or any of its rights or interests thereunder if the grant of such Security Interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of the Borrower therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such restriction is effective and enforceable under applicable lawlease, license, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to any relevant jurisdiction or any other Applicable Law (including after giving full effect to Section 9-406 the Insolvency Laws) or principles of the UCCequity), (b) except as otherwise provided the last day of the term of any lease or agreement therefor but upon the enforcement of the Security Interest granted hereby in the Credit AgreementCollateral, more than 65% the Borrower shall stand possessed of such last day in trust to assign the voting Equity Securities of same to any Foreign Subsidiary of an Obligor Person acquiring such term, or (c) any intent-to-use US trademark application for which an amendment applications filed at CIPO to allege use register Trademarks or statement service marks on the basis of use the Borrower’s “intent to use” such Trademarks or service marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has not been filed and accepted by the US Patent and Trademark Office (provided that each accepted, whereupon such intent-to-use application applications shall be considered Collateral immediately automatically subject to the Security Interest granted herein and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (a) of this Section 2.02, and (2) such assets referred to in clause (a) of this Section 2.02 at any time that the restrictions deemed included in the lease, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest and Lien in and to such asset in favor of the Collateral Agent, for the benefit of the Secured PartiesCollateral.

Excluded Collateral. Anything contained in this Security Agreement to the contrary notwithstanding, the term “Collateral” shall not include (a) The grant of the security interest contained in §2.1 shall not extend to, and the term "Collateral" shall not include, (i) any Equipment directly held investment property, or Intellectual Property that is any general intangibles, now or hereafter held or owned by any Obligor as a lessee, licensee, or debtor under purchase money secured financing or a Capital Leasethe Company, to the extent that: extent, in each case, that (i1) as a result of the grant of a security interest may not be granted by the Company in such directly held investment property or Lien thereingeneral intangibles as a matter of law, such Obligor’s rights in or with respect to such asset would be forfeited or such Obligor would be deemed to have breached or defaulted under the terms of the governing document applicable leasethereto, license, without the consent of one or other agreement; more applicable parties thereto and (2) such consent has not been obtained; (ii) any such restriction is effective and enforceable under applicable law, including after giving full effect to Section 9-406 of the UCC, (b) except as otherwise provided in the Credit Agreement, more than 65% of the voting Equity Securities of any Foreign Subsidiary of an Obligor or (c) any intent-to-use US trademark application for which an amendment applications filed pursuant to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (aSection 1(b) of this Section 2.02the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051, to the extent that, and (2) such assets referred to solely during the period in clause (a) of this Section 2.02 at any time that the restrictions in the leasewhich, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest therein would otherwise invalidate the Company’s right, title or interest therein; (iii) the Excluded Accounts (as defined below); (iv) any asset with respect to which the costs of obtaining, perfecting or maintaining a security interest in that asset exceeds the fair market value thereof or the benefit to the Secured Party afforded thereby (as determined by the Secured Party in consultation with the Company); and Lien (v) any assets to the extent a security interest in and to such asset assets would result in favor material adverse tax consequences as reasonably determined by the Secured Party. (b) The grant of the Collateral Agentsecurity interest contained in §2.1 shall extend to, for and the benefit term "Collateral" shall include, (i) any and all proceeds of such directly held investment property or general intangibles to the Secured Partiesextent that the proceeds are not themselves directly held investment property or general intangibles subject to §2.3(a) and (ii) upon any such applicable party or parties’ consent with respect to any otherwise excluded directly held investment property or general intangibles being obtained, thereafter such directly held investment property or general intangibles.

Excluded Collateral. Anything contained in this Security Agreement to the contrary notwithstanding, the term “Collateral” shall not include (a) The grant of the security interest contained in §2.1 shall not extend to, and the term "Collateral" shall not include, (i) any Equipment directly held investment property, or Intellectual Property that is any general intangibles, now or hereafter held or owned by any Obligor as a lessee, licensee, or debtor under purchase money secured financing or a Capital Leasethe Company, to the extent that: extent, in each case, that (i1) as a result of the grant of a security interest may not be granted by the Company in such directly held investment property or Lien thereingeneral intangibles as a matter of law, such Obligor’s rights in or with respect to such asset would be forfeited or such Obligor would be deemed to have breached or defaulted under the terms of the governing document applicable leasethereto, license, without the consent of one or other agreement; more applicable parties thereto and (2) such consent has not been obtained; (ii) any such restriction is effective and enforceable under applicable law, including after giving full effect to Section 9-406 of the UCC, (b) except as otherwise provided in the Credit Agreement, more than 65% of the voting Equity Securities of any Foreign Subsidiary of an Obligor or (c) any intent-to-use US trademark application for which an amendment applications filed pursuant to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (aSection 1(b) of this Section 2.02the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, to the extent that, and (2) such assets referred to solely during the period in clause (a) of this Section 2.02 at any time that the restrictions in the leasewhich, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest therein would otherwise invalidate the Company's right, title or interest therein; (iii) the Excluded Accounts (as defined below); (iv) any asset with respect to which the costs of obtaining, perfecting or maintaining a security interest in that asset exceeds the fair market value thereof or the benefit to the Secured Party afforded thereby (as determined by the Secured Party in consultation with the Company); and Lien (v) any assets to the extent a security interest in and to such asset assets would result in favor material adverse tax consequences as reasonably determined by the Secured Party. (b) The grant of the Collateral Agentsecurity interest contained in §2.1 shall extend to, for and the benefit term "Collateral" shall include, (i) any and all proceeds of such directly held investment property or general intangibles to the Secured Partiesextent that the proceeds are not themselves directly held investment property or general intangibles subject to §2.3(a) and (ii) upon any such applicable party or parties' consent with respect to any otherwise excluded directly held investment property or general intangibles being obtained, thereafter such directly held investment property or general intangibles.

Excluded Collateral. Anything contained Notwithstanding the broad grant of the security interest set forth in this Security Agreement to the contrary notwithstandingSection 3.1, above, the term “Collateral” Collateral shall not include (a) any Equipment 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 Intellectual Property that is now Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or hereafter held any other matter, (c) nonassignable licenses or contracts, including without limitation any licenses described in clause (c) of the defined term “Permitted Transfers”, which by any Obligor as a lessee, licensee, their terms require the consent of the licensor thereof or debtor under purchase money secured financing or a Capital Lease, another party (but only to the extent that: such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), provided further, that upon the termination of such prohibition or such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the Collateral; (id) as property for which the granting of a result 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; (e) any Excluded Accounts; and (f) any cash collateral deposit subject to a Permitted Lien hereunder, if the grant of a security interest or Lien therein, such Obligor’s rights in or with respect to such asset property pursuant to this Agreement would be forfeited 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 Obligor would cash collateral, such property shall automatically be deemed to have breached or defaulted under the applicable lease, license, or other agreement; and (ii) any such restriction is effective and enforceable under applicable law, including after giving full effect to Section 9-406 of the UCC, (b) except as otherwise provided included in the Credit Agreement, more than 65% of the voting Equity Securities of any Foreign Subsidiary of an Obligor or (c) any intent-to-use US trademark application for which an amendment to allege use or statement of use has not been filed and accepted by the US Patent and Trademark Office (provided that each such intent-to-use application shall be considered Collateral immediately and automatically upon such filing and acceptance); provided, however, that the term “Collateral” shall include (1) any and all Proceeds of such assets referred to in clause (a) of this Section 2.02, and (2) such assets referred to in clause (a) of this Section 2.02 at any time that the restrictions in the lease, license, or other agreement are no longer effective or enforceable (including as a result of the exercise of an option to purchase or the repayment of the secured financing) or at any time that the applicable lessor, licensor or other applicable party’s consent is obtained to the grant of a security interest and Lien in and to such asset in favor of the Collateral Agent, for the benefit of the Secured Parties.