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 (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.

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. 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. 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. (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 anything herein to the broad grant of contrary, in no event shall the Collateral include, or the security interest set forth in Section 3.12.9(a) attach to, above, the Collateral shall not include (a1) nonassignable licenses or contracts, which by their terms require the consent motor vehicles and other assets subject to certifications of the licensor thereof or another party (but only title to the extent the fair market value of all 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 assets do not exceed $1,000,000 in the Collateralaggregate, (b) any property which is subject to a capital lease, purchase money Lien or similar equipment financing permitted under this Agreement, but only in each case other than to the extent and for as long as a Lien in favor of Agent would thereon can be prohibited perfected by the terms filing of the related equipment a 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 Collateralstatement under UCC, (c2) any trademark application filed on an “intent-to-use” basis until trademarks or applications therefor for which a statement of use has not been filed and accepted with the earlier U.S. Patent and Trademark Office, (3) Excluded Accounts, (4) to the extent not covered by items 1 through 3 above, any lease, license, contract, property rights or agreement to which a Credit Party is a party or any Credit Party’s rights or interests thereunder, if and for so long as, the grant of such security interest shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of a Credit Party therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity) (collectively, “Excluded Collateral”); provided, that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (A) or (B) above; (5) letter of credit rights to the extent a Lien thereon cannot be perfected by the filing of a statement of use with respect thereto UCC financing statement, (6) any asset for so long as a pledge thereof or the issuance of a registration thereforsecurity interest therein is prohibited by any applicable law, and (d7) Excluded Accounts. In addition, in the event any change in the U.S. tax laws would cause a pledge of some or all more than 65% of the issued and outstanding Equity Interests voting equity interests of a Restricted Foreign Subsidiary any Excluded Subsidiary; provided, further that the proceeds of New Parent to result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower), the any Excluded 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 consequencesconstitute Collateral.

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