Common use of Excluded Subsidiaries Clause in Contracts

Excluded Subsidiaries. (i) In the event that, at any time, Excluded Subsidiaries that are not Obligors have, in the aggregate, (A) total Revenues constituting five percent (5.00%) or more of the total Revenues of Borrower and its Subsidiaries on a consolidated basis, or (B) total assets constituting five percent (5.00%) or more of the total assets of Borrower and its Subsidiaries on a consolidated basis, promptly (and, in any event, within thirty (30) days after such time (or such longer time as consented to in writing by Administrative Agent)) Obligors shall cause one or more of such Excluded Subsidiaries to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Subsidiaries become Subsidiary Guarantors, the non-guarantor Excluded Subsidiaries in the aggregate shall cease to have Revenues or assets, as applicable, that meet the thresholds set forth in clauses (A) and (B) above; provided, that, no Excluded Subsidiary shall be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken as a whole. (ii) With respect to each First-Tier Excluded Subsidiary, such Obligor shall grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Without limiting the generality of the foregoing, in the event that any Obligor shall form or acquire any new Subsidiary that is a First-Tier Excluded Subsidiary, such Obligor will promptly and in any event within thirty (30) days of the formation or acquisition of such Subsidiary (or such longer time as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and one hundred percent (100.00%) of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. (iii) For the purposes of this Section 8.12(b), the determination of whether a “material adverse tax consequence” shall be deemed to result from any Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent in its reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance of Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent shall give heavier weight to the factors set forth in clauses (2) and (3)).

Excluded Subsidiaries. (a) If at any time (x) the aggregate cash or Cash Equivalent Investments attributable to all Excluded Subsidiaries except for Excluded Subsidiaries excluded pursuant to clause (C) of the definition of “Excluded Subsidiary” exceeds $5,000,000, the Borrower shall (i) In designate sufficient applicable Subsidiaries as “Guarantors” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Guarantors and be subject to the event thatprovisions of Section 7.8, at any time, Excluded Subsidiaries that are not Obligors have, or (ii) immediately repatriate cash and/or Cash Equivalent Investments in the aggregatean aggregate amount sufficient to eliminate such excess, (Ay) total Revenues constituting five percent (5.00%) or more the aggregate portion of the total Revenues Revenue attributable to (I) an Excluded Subsidiary exceeds 5.0% of the Revenue of the Borrower and its Subsidiaries on a consolidated basis, or (BII) all Excluded Subsidiaries except for Excluded Subsidiaries excluded pursuant to clause (C) of the definition of “Excluded Subsidiary” exceeds 10.0% of the Revenue of the Borrower and its Subsidiaries, as applicable, in each case for any period of four consecutive Fiscal Quarters (determined as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 7.1(b) or Section 7.1(c) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 7.1(b) or Section 7.1(c), the most recent financial statements referred to in Section 5.6)), the Borrower shall designate such applicable Excluded Subsidiary or sufficient applicable Subsidiaries as “Guarantors” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Guarantors and be subject to the provisions of Section 7.8 or (z) the aggregate portion of total assets constituting five percent attributable to (5.00%I) or more an Excluded Subsidiary exceeds 5.0% of the consolidated total assets of the Borrower and its Subsidiaries on a consolidated basis, promptly or (and, in any event, within thirty (30II) days after such time (or such longer time as consented to in writing by Administrative Agent)) Obligors shall cause one or more of such all Excluded Subsidiaries to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Subsidiaries become Subsidiary Guarantors, the non-guarantor except for Excluded Subsidiaries in excluded pursuant to clause (C) of the aggregate shall cease to have Revenues or assetsdefinition of “Excluded Subsidiary” exceeds 10.0% of the consolidated total assets of the Borrower and its Subsidiaries, as applicable, that in each case for any period of four consecutive Fiscal Quarters (determined as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 7.1(b) or Section 7.1(c) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 7.1(b) or Section 7.1(c), the most recent financial statements referred to in Section 5.6)), the Borrower shall designate such applicable Excluded Subsidiary or sufficient applicable Subsidiaries as “Guarantors” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Guarantors and be subject to the provisions of Section 7.8. (b) Should (x) an Excluded Subsidiary cease to meet the thresholds criteria set forth in clauses (i), (ii) or (iii) of clause (A) and of the definition thereof, (By) above; provided, that, no an Excluded Subsidiary shall hold any exclusive right, title or interest in any material Core Asset or (z) should any not-for-profit Subsidiary (including ▇▇▇▇▇ Molecular Pathology) no longer constitute or be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken qualified as a whole“non-for-profit” Person in its jurisdiction of organization, in each case, the Borrower shall designate such Subsidiary as a “Guarantor”, and such Subsidiary shall for all purposes of this Agreement constitute a Guarantor and be subject to the provisions of Section 7.8. (iic) With respect On or prior to each First-Tier Excluded Subsidiary, such Obligor shall grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Without limiting the generality of the foregoing, in the event that any Obligor shall form or acquire any new Subsidiary date that is a First-Tier Excluded Subsidiary, such Obligor will promptly and in any event within thirty (30) 90 days of after the formation or acquisition of such Subsidiary (Closing Date or such longer time period as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and one hundred percent (100.00%) of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. (iii) For the purposes of this Section 8.12(b), the determination of whether a “material adverse tax consequence” shall be deemed to result from any Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent in its reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance of Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent and the Required Lenders may agree in their sole discretion, the Borrower shall give heavier weight cause ▇▇▇▇▇ Research Institute, Inc. to comply with the factors set forth in clauses (2) requirements of Section 7.8 or to be dissolved. From the Closing Date until ▇▇▇▇▇ Research Institute, Inc. either dissolves or complies with the requirements of Section 7.8, it shall be a dormant company with no operations, no assets and (3))no liabilities.

Excluded Subsidiaries. (i) In the event that, at any time, Excluded Subsidiaries that are not Obligors have, in the aggregate, (A) total Revenues revenues constituting five ten percent (5.0010%) or more of the total Revenues of Borrower and its Subsidiaries on a consolidated basis, or (B) total assets constituting five ten percent (5.0010%) or more of the total assets of Borrower and its Subsidiaries on a consolidated basis, promptly (and, in any event, within thirty (30) days after such time time) (or such longer time as consented to in writing by the Administrative Agent)) Obligors shall cause one or more of such Excluded Subsidiaries to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Subsidiaries become Subsidiary Guarantors, the non-guarantor Excluded Subsidiaries in the aggregate shall cease to have Revenues revenues or assets, as applicable, that meet the thresholds set forth in clauses (A) and (B) above; provided, that, provided that no Excluded Subsidiary shall be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken as a whole. For the purposes of this section, the determination of whether a “material adverse tax consequence” shall be deemed to result from such Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by the Majority Lenders in their sole reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (i) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (ii) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (iii) whether the Loans are over- or under-collateralized; (iv) the financial performance of the Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations at such time; and (v) the cost to the Borrower and its Subsidiaries balanced against the practical benefit to the Lenders. (ii) With respect to each First-Tier Excluded SubsidiarySubsidiary that is not a Subsidiary Guarantor, such Obligor shall grant a security interest and Lien in sixty sixty-five percent (65.0065%) of each class of voting Equity Interests Interest and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Without limiting the generality of the foregoing, in the event that any Obligor shall form or acquire any new Subsidiary that is a First-Tier Excluded Subsidiary, such Obligor will promptly and in any event within thirty (30) days of the formation or acquisition of such Subsidiary (or such longer time as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) 65% of each class of voting Equity Interests and one hundred percent (100.00%) 100% of all other Equity Interests in of such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including 164703839 v7 entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement.Agreement (provided that in the case of a First-Tier Excluded Subsidiary that is a Subsidiary Guarantor, such Obligor shall grant a security interest and Lien in 100% of the Equity Interests of such Subsidiary in favor of the Secured Parties as Collateral for the Obligations). Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, no local law documents shall be required where such First-Tier Excluded Subsidiary has, in the aggregate, (A) total revenues constituting less than 10% of the total Revenues of Borrower and its Subsidiaries on a consolidated basis, and (B) total assets constituting less than 10% of the total assets of Borrower and its Subsidiaries on a consolidated basis. 164703839 v7 (iii) For Notwithstanding the purposes of foregoing, Dynavax GmbH shall not be required to become a Subsidiary Guarantor or a lien grantor pursuant to this Section 8.12(b), ) or any of the determination of whether a “material adverse tax consequence” shall be deemed to result from any Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent in its reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance of Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent shall give heavier weight to the factors set forth in clauses (2) and (3))Loan Documents.

Excluded Subsidiaries. (i) In the event that, at any time, Excluded Subsidiaries that are not Obligors have, in the aggregate, (A) total Revenues revenues constituting five ten percent (5.0010%) or more of the total Revenues of Borrower and its Subsidiaries on a consolidated basis, or (B) total assets constituting five ten percent (5.0010%) or more of the total assets of Borrower and its Subsidiaries on a consolidated basis, promptly (and, in any event, within thirty forty-five (3045) days after such time time) (or such longer time as consented to in writing by the Administrative Agent)) Obligors shall cause one or more of such Excluded Subsidiaries to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Subsidiaries become Subsidiary Guarantors, the non-guarantor Excluded Subsidiaries in the aggregate shall cease to have Revenues revenues or assets, as applicable, that meet the thresholds set forth in clauses (A) and (B) above; provided, that, provided that no Excluded Subsidiary shall be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken as a whole. For the purposes of this section, the determination of whether a “material adverse tax consequence” shall be deemed to result from such Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by the Majority Lenders in their sole reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (i) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (ii) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (iii) whether the Loans are over- or under-collateralized; (iv) the financial performance of the Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (v) the cost to the Borrower and its Subsidiaries balanced against the practical benefit to the Lenders. (ii) With respect to each First-Tier Excluded SubsidiarySubsidiary that is not a Subsidiary Guarantor, such Obligor shall grant a security interest and Lien in sixty sixty-five percent (65.0065%) of each class of voting Equity Interests Interest and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Without limiting the generality of the foregoing, in the event that any Obligor shall form or acquire any new Subsidiary that is a First-Tier Excluded Subsidiary, such Obligor will promptly and in any event within thirty forty-five (3045) days of the formation or acquisition of such Subsidiary (or such longer time as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) 65% of each class of voting Equity Interests and one hundred percent (100.00%) 100% of all other Equity Interests in of such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Agreement (iii) For provided that in the purposes case of a First-Tier Excluded Subsidiary that is a Subsidiary Guarantor, such Obligor shall grant a security interest and Lien in 100% of the Equity Interests of such Subsidiary in favor of the Secured Parties as Collateral for the Obligations). Notwithstanding any provision of this Section 8.12(b)Agreement or any other Loan Document to the contrary, the determination of whether a “material adverse tax consequence” no local law documents shall be deemed to result from any Foreign required where such First-Tier Excluded Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent has, in its reasonable discretionthe aggregate, following consultation with Borrower, taking into consideration and weighing, among others, (A) total revenues constituting less than 5% of the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance total Revenues of Borrower and its Subsidiaries, taken as Subsidiaries on a wholeconsolidated basis, and (B) total assets constituting less than 5% of the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to total assets of Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent shall give heavier weight to the factors set forth in clauses (2) and (3))on a consolidated basis.

Excluded Subsidiaries. A Subsidiary that (i) In the event thathas Indebtedness outstanding secured by a Lien on its Real Estate, at any time, Excluded Subsidiaries that are not Obligors have, in the aggregate, (A) total Revenues constituting five percent (5.00%) or more of the total Revenues of Borrower and its Subsidiaries on a consolidated basis, or (B) total assets constituting five percent (5.00%) or more of the total assets of Borrower and its Subsidiaries on a consolidated basis, promptly (and, in any event, within thirty (30) days after such time which Indebtedness was incurred (or assumed) in connection with such longer time as consented to in writing by Administrative Agent)) Obligors shall cause one Subsidiary's acquisition or more improvement of such Excluded Subsidiaries Real Estate (referred to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Subsidiaries become Subsidiary Guarantors, the non-guarantor Excluded Subsidiaries in the aggregate shall cease to have Revenues or assets, hereinafter as applicable, that meet the thresholds set forth in clauses (A"Mortgage Debt") and (Bii) aboveis prohibited pursuant to the loan or other financing documents evidencing such Mortgage Debt from guaranteeing Indebtedness of other Persons; providedprovided that the principal amount of such Mortgage Debt may not be increased and the original scheduled maturity date thereof may not be extended (including, thatin each case, no Excluded in connection with an amendment or modification or refinancing of such Mortgage Debt), and if there is any such increase in principal amount or extension of maturity, then such Subsidiary shall no longer be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken as a whole. (ii) With respect to each First-Tier considered an Excluded Subsidiary, such Obligor shall grant a security interest and Lien in sixty five percent (65.00%b) of each class of voting Equity Interests and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued only property or assets owned by such First-Tier Excluded Subsidiary as required by this Agreement or entity is the Security Agreement. Without limiting the generality of the foregoingHQ Land, in the event that any Obligor shall form or acquire any new Iskalo Land Holdings LLC and (c) a Subsidiary that is a First-Tier controlled foreign corporation (as that term is defined in the Code) if providing a Guaranty by such Subsidiary with respect to the Obligations would result in adverse tax consequences to the Borrowers and their Subsidiaries. Notwithstanding the foregoing, any Subsidiary that either (i) provides a Guaranty or otherwise becomes obligated in respect of any Indebtedness (including, without limitation, Indebtedness under the Note Purchase Agreements) of any Borrower or any Subsidiary of the Borrowers or (ii) at any time owns an Unencumbered Property, shall not, or, if previously an Excluded Subsidiary, such Obligor will promptly and in any event within thirty (30) days of the formation or acquisition of such Subsidiary (or such longer time as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and one hundred percent (100.00%) of all other Equity Interests in such First-Tier shall immediately cease to, be an "Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security AgreementSubsidiary" hereunder. (iii) For the purposes of this Section 8.12(b), the determination of whether a “material adverse tax consequence” shall be deemed to result from any Foreign Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent in its reasonable discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance of Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent shall give heavier weight to the factors set forth in clauses (2) and (3)).

Excluded Subsidiaries. (i) In the event that, at any time, Excluded Subsidiaries that are not Obligors have, in the aggregate, (Ai) for any fiscal quarter (as reported pursuant to Section 8.01(a)), total Revenues constituting five percent (5.005%) or more of the total Revenues of Borrower and its Subsidiaries on a consolidated basisbasis for such period, or (Bii) total assets constituting five percent (5.005%) or more of the total assets of Borrower and its Subsidiaries on a consolidated basisbasis as of the last day of any fiscal quarter (as reported pursuant to Section 8.01(a)), Obligors shall, promptly (and, in any event, within thirty (30) days after such time (or such longer time as consented to in writing by Administrative Agent)time) Obligors shall cause one or more of such Excluded Subsidiaries to become Subsidiary Guarantors in the manner set forth in Section 8.12(a), such that, after such Excluded Subsidiaries become Subsidiary Guarantors, the non-guarantor other Excluded Subsidiaries that did not become Subsidiary Guarantors in the aggregate shall cease to have Revenues or assets, as applicable, that meet the thresholds set forth in clauses (Ai) and (Bii) above; provided, that, that no Excluded Subsidiary shall be required to become a Subsidiary Guarantor if doing so would result in material adverse tax consequences for Borrower and its Subsidiaries, taken as a whole. (ii) With respect to each First-Tier Excluded Subsidiary, such Obligor shall grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and 100% of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. Without limiting the generality of the foregoing, in the event that any Obligor shall form or acquire any new Subsidiary that is a First-Tier Excluded Subsidiary, such Obligor will promptly and in any event within thirty (30) days of the formation or acquisition of such Subsidiary (or such longer time as consented to by Administrative Agent in writing) grant a security interest and Lien in sixty five percent (65.00%) of each class of voting Equity Interests and one hundred percent (100.00%) of all other Equity Interests in such First-Tier Excluded Subsidiary in favor of the Secured Parties as Collateral for the Obligations, in each case including entering into any necessary local law security documents and delivery of certificated securities issued by such First-Tier Excluded Subsidiary as required by this Agreement or the Security Agreement. (iii) For the purposes of this Section 8.12(b), the determination of whether a “material adverse tax consequence” shall be deemed to result from any Foreign Excluded Subsidiary becoming a Subsidiary Guarantor shall be made by Administrative Agent Majority Lenders in its reasonable their sole discretion, following consultation with Borrower, taking into consideration and weighing, among others, the following relevant factors: (1) the magnitude of an increase in Borrower’s tax liability or a reduction in Borrower’s net operating loss carryforward, taken as a whole; (2) the amount of revenues generated by or assets accumulated at such Foreign Subsidiary compared with those generated by or accumulated at the Obligors; (3) whether the Loans are over- or under-collateralized; (4) the financial performance of Borrower and its Subsidiaries, taken as a whole, and the Obligors’ ability to perform the Obligations (other than Warrant Obligations) at such time; and (5) the cost to Borrower and its Subsidiaries balanced against the practical benefit to the Lenders (it being understood that the Administrative Agent shall give heavier weight to the factors set forth in clauses (2) and (3)).