Common use of Excluded Collateral Clause in Contracts

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

Excluded Collateral. For avoidance (a) Notwithstanding the broad grant of doubtthe security interest set forth in Section 3.1 above, it the Collateral shall not include, and no Lien or security interest is understood 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 agreed (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 Credit Parties sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”) (ii) any assets or the proceeds thereof that are the subject of the Liens permitted under clauses (xv) through (xxii) of Permitted Liens, 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 Biovestbecome part of the Collateral, (iii) 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 obligors under being or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens will be utilized in the Excluded conduct of activities under one or more contracts between any Loan Party and such governmental institute or agency, (viii) property owned by any Loan Party that is subject to a purchase money Lien or a capital lease and the proceeds thereof permitted under the Loan Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits, 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 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 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 securing the Senior Obligationsshall automatically, and that effective as of the date of this Agreement, no such Liens in include the Excluded Collateral have been provided by the Credit Parties or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest to any such Purchaser in the Excluded Collateral prior to the Discharge of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement Intellectual Property (other than the provisions expressly dealing 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 Excluded Collateral) does not apply or relate Intellectual Property (other than remedies with respect to or govern in any manner whatsoever the Liens granted Rights to Senior Lender to secure the Senior Obligations by Biovest Payment or any Credit Party other proceeds of the Intellectual Property (other than the Liens 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 Junior Priority Collateral granted by foregoing clause 3.2(b) shall (i) restrict the Company Loan Parties from entering into agreements with respect to Senior Lender)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 that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations 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 terms security interest in favor of Agent is terminated or expires as contemplated in the proviso in each of such sections, such assets shall be deemed Intellectual Property and the proceeds of such assets shall be deemed proceeds of Intellectual Property that are subject to the provisions of this Agreement. Notwithstanding anything to the contrary contained hereinSection 3.2(a)(i), if for any reason3.2(b) and 3.2(c), prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lenderapplicable.

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

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

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

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

Excluded Collateral. For avoidance Notwithstanding the foregoing provisions of doubtthis Section 2, it such grant of a security interest shall not extend to, and the term "Collateral" shall not include any contract, license, lease or other agreement to which the Borrower is understood party as licensee, lessee or otherwise, to the extent that (i) such contract, license or agreement is not assignable or capable of being encumbered as a matter of law or under the terms of such contract, license, lease or other agreement (but solely to the extent that any such restriction shall be enforceable under applicable law), without the consent of the licensor or lessor thereof or other applicable party thereto and agreed (ii) such consent has not been obtained; provided, however, that the Credit Parties and Biovest, which are obligors under or otherwise guarantee the Senior Obligations, have granted Senior Lender Liens in the Excluded Collateral securing the Senior Obligationsforegoing grant of security interest shall extend to, and the term "Collateral" shall include (A) any and all proceeds of such contracts, licenses, leases and other agreements to the extent that as the assignment or encumbering of the date of this Agreementsuch proceeds is not so restricted and (B) upon any licensor, no such Liens in the Excluded Collateral have been provided by the Credit Parties lessor or Biovest to secure any New Obligations. Each Purchaser hereby disclaims all Liens now or in the future granted by any Credit Party and/or Biovest other applicable party consent with respect to any such Purchaser in otherwise excluded contract, license, lease or other agreement being obtained, thereafter such contract, license, lease or other agreement, as the Excluded Collateral prior to case may be, as well as any and all proceeds thereof that might have theretofore have been excluded from such grant of a security interest and the Discharge term "Collateral". Further, the term "Collateral" shall not include the assets of the Senior Obligations. It is understood and agreed by all parties hereto that this Agreement (other than the provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the Liens granted to Senior Lender to secure the Senior Obligations by Biovest Borrower's subsidiary, Cort Directions, Inc., or any Credit Party (other than the Liens stock of Cort Directions, Inc. owned by Borrower, all as more fully described in the Junior Priority Collateral granted by the Company to Senior Lender), and that any assets or property pledged by Biovest or any Credit Party (other than in the Junior Priority Collateral) to secure the Senior Obligations shall not be subject to the terms and provisions Section 5.5 of this Loan Agreement. Notwithstanding anything to the contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Excluded Collateral, such Purchaser shall hold same as bailee and/or agent for the Senior Lender, provided that such Purchaser shall immediately deliver or cause to be delivered any such Excluded Collateral to the Senior Lender.

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

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

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

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

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