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 any of the following (collectively, the “Excluded Assets”): (a) (i) more than sixty-five percent (65%) of the presently existing and 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 Xxxxxxxx demonstrates to the reasonable satisfaction of Agent that a pledge and security interest in more than sixty-five percent (65%) of the presently existing and hereafter 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 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 such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the 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 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; (e) any lease, license or other agreement and any 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, 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); (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 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; (h) any interest of a Loan Party as a lessee or sublessee under a real property lease; (i) any accounts sold and any security interests granted in such accounts pursuant to the terms of, or in connection with, the Permitted Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material and (ii) the type that the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent in writing in its sole discretion to be excluded from Collateral.

Excluded Collateral. Notwithstanding anything to the broad contrary contained herein or in the Original Security Agreement, (a) the grant of the security interest set forth contained in Section 3.1 above, the Collateral §2.1 shall not include any of extend to, and the following (collectively, the “Excluded Assets”): (a) term "Collateral" shall not include: (i) more any directly held Equity Interests (whether classified as investment property or as a general intangible), now or hereafter held or owned by a Loan Party (other than sixtydirectly held Equity Interests (however classified) in a Person that is a Borrower, Guarantor or Wholly-five percent Owned Restricted Subsidiary) to the extent either (65%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 presently existing and hereafter arising issued and outstanding Equity Interests directly owned by any Loan Party of any Foreign Subsidiary governing document, joint venture agreement or Foreign Subsidiary Holding Company which Equity Interests entitle shareholders agreement, as the holder thereof to vote for directors or any other mattercase may be, if Xxxxxxxx demonstrates to the reasonable satisfaction of Agent that a pledge and security interest in more than sixty-five percent (65%) of the presently existing and hereafter 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 contractsapplicable thereto, 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 one or another party (but only to the extent such prohibition on transfer is enforceable under more applicable law, including, without limitation, Sections 9-406, 9-407 third parties thereto and 9-408 of the UCC), provided further, that upon the termination of such prohibition or such consent being provided with respect to any license has not been obtained, or contract, such license or contract shall automatically be included in the Collateral; (cy) property for which that the granting of a security interest therein 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 contrary 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 applicable lawa 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"), provided that upon (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 cessation foregoing, other than 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of any such restriction or prohibition, such property shall automatically be included first tier Foreign Subsidiary that is a CFC (a "Foreign Subsidiary Interest"). The foregoing excluded Collateral set forth 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 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; (e) any lease, license or other agreement and any 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, 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 9sub-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 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; (h) any interest of a Loan Party as a lessee or sublessee under a real property lease; clauses (i) any accounts sold through (iv) hereof is herein and any security interests granted in such accounts pursuant the Credit Agreement referred to as the terms of, or in connection with, the Permitted Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material and (ii) the type that the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any "Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent in writing in its sole discretion to be excluded from CollateralAssets".

Excluded Collateral. Notwithstanding the broad grant (i) Excluded Cash Accounts, (ii) the Surety Collateral to the extent (a) the issuer of the security Surety Bond is Chubb or a co-surety of Chubb under the Chubb Agreements in effect on the Petition Date and (b) such Surety Collateral has not previously been included in a Borrowing Base Certificate delivered to Agent, (iii) the Borrower’s partnership interest set forth in Section 3.1 aboveEnertech, (iv) all cash collateral pledged to Chubb pursuant to the Chubb Agreements that is in the possession or under the control of Chubb, (v) cash collateral pledged to Sureties (other than Chubb) up to an aggregate amount of $2,000,000 that is in the possession or under the control of such Surety and (vi) causes of actions of Borrowers under Chapter 5 of the Bankruptcy Code; provided, however, that in no event shall Excluded Collateral include any amounts which from time to time may be in the Cash Collateral Account. Extraordinary Expenses - all costs, expenses, fees or advances that Agent or any Lender may suffer or incur, whether prior to or after the occurrence of an Event of Default, and whether prior to, after or during the pendency of an Insolvency Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection, repossession, storage, repair, appraisal, insuring, completion of the manufacture of, preparing for sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any Collateral; (ii) the defense of Agent’s Lien upon any Collateral or the priority thereof or any adverse claim with respect to the Loans, the DIP Loan Documents or the Collateral shall asserted by any Obligor, any receiver or trustee for any Obligor or any creditor or representative of creditors of any Obligor; (iii) the settlement or satisfaction of any Liens upon any Collateral (whether or not include such Liens are Permitted Liens); (iv) the collection or enforcement of any of the following Obligations; (collectivelyv) the negotiation, documentation, and closing of any restructuring or forbearance agreement with respect to the “Excluded Assets”): DIP Loan Documents or Obligations; (avi) (i) more than sixty-five percent (65%) amounts advanced by Agent pursuant to Section 7.1.3 of the presently existing and hereafter arising issued and outstanding Equity Interests directly owned by any Loan Party Agreement; (vii) the enforcement of any Foreign Subsidiary of the provisions of any of the DIP Loan Documents; or Foreign Subsidiary Holding Company (viii) any payment under a guaranty, indemnity or other payment agreement provided by Agent or (with Agent’s consent) any Lender, which Equity Interests entitle is reimbursable to Agent or such Lender by Borrower pursuant to Section 2.4.2 of the holder thereof Agreement. Such costs, expenses and advances may include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to vote for directors employees of any or all Borrowers or independent contractors in liquidating any Collateral, travel expenses, all other fees and expenses payable or reimbursable by Borrowers or any other matterObligor under any of the DIP Loan Documents, and all other fees and expenses associated with the enforcement of rights or remedies under any of the DIP Loan Documents, but excluding compensation paid to employees (including inside legal counsel who are employees) of Agent. Federal Funds Rate - for any period, a fluctuating interest rate per annum equal for each date during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if Xxxxxxxx demonstrates to such day is not a Business Day, for the reasonable satisfaction next preceding Business Day) in Dallas, Texas by the Federal Reserve Bank of Agent that Dallas, or if such rate is not so published for any day which is a pledge and security interest in more than sixty-five percent (65%) Business Day, the average of the presently existing and hereafter arising issued and outstanding Equity Interests would create a present and existing adverse tax consequence to Borrower under the Code or (ii) any assets quotations for such day on such transactions received by Agent from 3 federal funds brokers 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 recognized standing selected 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 such consent being provided Agent. FEIN - with respect to any license or contractPerson, the Federal Employer Identification Number of such license or contract shall automatically be included Person. Final Order - the order entered by the Court in the Collateral; Chapter 11 Case after a final hearing under Bankruptcy Rule 4001 (cc)(2), pursuant to Section 364(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; and (d) any cash collateral deposit subject of the Bankruptcy Code, in form and substance satisfactory to Agent, as to which no stay has been entered, and which has not been vacated, modified or reversed, (i) authorizing the Borrowers to incur Post-Petition secured Debt and to grant Liens under the Commitments in accordance with this Agreement and the other DIP Loan Documents, (ii) providing for the super-priority of the Obligations, including without limitation, a Permitted Lien hereunder, if the specific grant of a security interest to Agent, for the benefit of Lenders, in all Collateral, as well as the right to the proceeds from all Collateral in accordance with respect this Agreement and the other DIP Loan Documents, (iii) providing that all Obligations under the Pre-Petition Loan Documents constitute Obligations under this Agreement, and (iv) authorizing the payment by the Borrowers of all fees and expenses contemplated by this Agreement and the other DIP Loan Documents, including, but not limited to, those certain fees set forth in Section 2.2 hereof, each as set forth in such order. Additionally, such order shall provide for usual and customary protections for Agent and Lenders, including, but not limited to, (a) a waiver of any and all claims and causes of action of Borrowers against Agent and Lenders on account of the Pre-Petition Debt and Pre-Petition Loan Documents, including, but not limited to, any claims for preference, fraudulent conveyance or other claims arising under the Bankruptcy Code, and any and all claims regarding the validity, priority, perfection or avoidability of the secured claims of Agent and Lenders, subject to the right of any creditors’ committee (or if no creditors’ committee is appointed, any party in interest) to investigate and challenge (and to the extent successful, avoid) any such property liens, security interests and claims for a period of 45 days from the petition date, (b) an acknowledgment by the Borrowers and a finding by the Court as to the amount of the Pre-Petition Debt and the validity of Agent’s liens, on behalf of Lenders, on the Pre-Petition Collateral, (c) a waiver by Borrowers of any right to assert a surcharge or other claim under Section 506(c) of the Bankruptcy Code against any of the Collateral, (d) a waiver by Borrowers of any right to assert or require marshalling of any Collateral, and (e) preclusion of any Post-Petition financing, on a priming basis or otherwise, other than pursuant to this Agreement would be prohibited (and any Debt provided by Chubb which is acceptable to Agent in the agreement creating good faith exercise of its credit judgment), unless such Permitted Lien Post-Petition financing first finally and indefeasibly satisfies the Obligations (including any Pre-Petition Debt) outstanding to Agent and Lenders in full in cash and all Commitments of Agent and Lenders under the DIP Facility are terminated (and all Letters of Credit are terminated or would otherwise constitute discharged or indemnified against in such manner and to such extent as is satisfactory to Agent in the good faith exercise of its credit judgment), or Agent and Lenders consent to such financing. Fiscal Quarter - each three month period ending each March, June, September and December. Fiscal Year - the fiscal year of Parent and its Subsidiaries for accounting and tax purposes, which ends on September 30 of each year. FLSA - the Fair Labor Standards Act of 1938. Foreign Subsidiary - a default thereunder Subsidiary that is not a Domestic Subsidiary. Funding Account - an account established by Borrowers or create any of them for receipt of proceeds of Loans or such other account as Borrowers may specify in writing. GAAP - generally accepted accounting principles in the United States of America in effect from time to time. General Intangibles - all general intangibles of a right Credit Party, whether now owned or hereafter created or acquired by a Credit Party, including all choses in action, causes of termination action, company or other business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights, registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs, operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all claims under guaranties, security interests or other security held by or granted to a party thereto Credit Party to secure payment of any of a Credit Party’s Accounts by an Account Debtor, all rights to indemnification and all other intangible property of a Credit Party of every kind and nature (other than BorrowerAccounts). Governmental Approvals - all authorizations, provided that upon the termination consents, approvals, licenses and release of such cash collateralexemptions of, such property shall automatically be included in the Collateral includingregistrations and filings with, for the sake of clarityand reports to, all Governmental Authorities. Governmental Authority - any cash collateral securing that certain letter of credit for Borrower’s leased property at 00 Xxxxxx Xxxxxxfederal, Xxxxxxxxxxstate, XX 00000; (e) any leasemunicipal, license national, foreign or other agreement and governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any property subject thereto on the Closing Date entity or on the date officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the acquisition United States, the District of such property (other than any property acquired by Columbia or a Loan Party subject to any such contract foreign entity or other agreement government. Guarantors – the Persons on Annex II attached to the extent such contract Agreement and each other Person who guarantees payment or other agreement was incurred in contemplation performance 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 whole 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 part 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 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; (h) any interest of a Loan Party as a lessee or sublessee under a real property lease; (i) any accounts sold and any security interests granted in such accounts pursuant to the terms of, or in connection with, the Permitted Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material and (ii) the type that the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent in writing in its sole discretion to be excluded from CollateralObligations.

Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1 aboveCollectively, the Collateral shall not include any of the following (collectively, the “Excluded Assets”): (a) tangible property subject to purchase money liens permitted under Section 10.2 hereof, to the extent that the purchase money documents prohibit the grant of junior liens, (ib) more than sixtythirty-five percent (6535%) of the presently existing and hereafter arising issued and outstanding Equity Interests directly owned by any Loan Party Voting Stock of any Foreign foreign Subsidiary, (c) all of the Capital Stock of any domestic Subsidiary or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or any other matter, if Xxxxxxxx demonstrates to the reasonable satisfaction of Agent extent that a pledge and security interest in more than sixty-five percent (65%) the grant or perfection of the presently existing and hereafter arising issued and outstanding Equity Interests pledge of such Capital Stock would create a present and existing adverse tax consequence to Borrower under the Code be prohibited by liquor licensing laws 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 by their terms would require the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable lawa liquor licensing authority that has not been obtained, including, without limitation, Sections 9-406, 9-407 and 9-408 of the UCC), provided further, that upon the termination of such prohibition or such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the Collateral; (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 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; (e) any lease, license or other agreement and any 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 acquisitionincluding liquor licenses) to the extent that a the grant or perfection 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 Lien thereon in favor of the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, under the Loan Documents would be prohibited by law or would require the consent of any other party thereto Governmental Authority that has not been obtained, (other than the Borrowere) ground leases, 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 9-406required landlord's consent has not been obtained, 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 (includingall other real property leases, without limitation, vehicles or other assets subject to a certificate of title); (g) any “intent to use” trademarks the equipment located at all times prior to the first use thereofWheeling, whether by the actual use thereof in commerceIllinois restaurant, 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; (h) any interest of a Loan Party as a lessee Mortgaged Property or sublessee under a any real property lease; acquired after the Closing Date pursuant to Section 10.1(c)(ii), in each case to the extent that such Mortgaged Property or Real Property is refinanced in accordance with Section 10.1(c) (provided, that any inventory or general intangibles associated with such Mortgaged Property or Real Property shall not constitute Excluded Collateral), and (i) any accounts sold Investments in respect of deferred compensation or options under the Key Employee Stock Ownership Plan which have vested. Existing Credit Agreement. The Credit Agreement dated as of August 28, 2001, and any security interests granted as amended and in effect on the Closing Date, among the Borrower, Bank of America, N.A., Fleet National Bank, Branch Banking and Trust Company and the other banks which are parties thereto, and Bank of America, N.A., as Agent for such accounts pursuant to banks. Existing Letters of Credit. The letters of credit set forth on Schedule 1A attached hereto. Fee Letter. The fee letter dated as of September 3, 2002 among the terms of, or in connection withBorrower, the Permitted Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material Administrative Agent and (ii) the type that the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent in writing in its sole discretion to be excluded from CollateralArranger.

Excluded Collateral. Notwithstanding the broad grant of foregoing, the security interest set forth in granted under Section 3.1 above, 2.1 shall not attach to and the Collateral term “Collateral” shall not include (a) any Lease, license, permit, concession, authorization, Material Contract, property rights or agreement to which each Grantor is a party or any of the following (collectively, Grantor’s rights or interests thereunder if the “Excluded Assets”): (a) grant of such security interest shall constitute or result in (i) more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding Equity Interests directly owned by any Loan Party abandonment, invalidation or unenforceability of any Foreign Subsidiary material right, title or Foreign Subsidiary Holding Company which Equity Interests entitle the holder thereof to vote for directors or interest of any other matter, if Xxxxxxxx demonstrates to the reasonable satisfaction of Agent that a pledge and security interest in more than sixty-five percent (65%) of the presently existing and hereafter arising issued and outstanding Equity Interests would create a present and existing adverse tax consequence to Borrower under the Code Grantor therein 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 by their terms require the consent of the licensor thereof or another party (but only a termination pursuant to the extent such prohibition on transfer is enforceable under applicable lawterms of, includingor a default which would give rise to a right to terminate under, without limitation, Sections 9-406, 9-407 and 9-408 of the UCC), provided further, that upon the termination of such prohibition or such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the Collateral; (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 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; (e) any lease, license or other agreement and any 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 leaseLease, license, contract permit, concession, authorization, Material Contract, property rights 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, 9-407, 9-408 or 9-409 of the UCC (or any other Sectionsuccessor provision or provisions) of Article 9 any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), (b) applications filed in the UCC); U.S. Patent and Trademark Office (fthe “USPTO”) to register trademarks or service marks on the basis of 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 Grantor’s “intent to use” trademarks at all times prior such marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted, whereupon such applications shall be automatically subject to the first use thereofLien granted herein and deemed included in the Collateral, whether by (c) any of the actual use thereof in commerce, the recording Equity Interests of a statement Foreign Subsidiary in excess of use with sixty-five percent (65%) of the United States Patent issued and Trademark Office or otherwise, provided, that upon submission and acceptance by outstanding Equity Interests of such Foreign Subsidiary entitled to vote (representing not greater than sixty-five percent (65%) of the United States Patent and Trademark Office total combined voting power of an amendment all classes of Equity Interests entitled to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(avote) (within the meaning of Treas. Reg. Section 1.956-2(c)(2) or any successor provisionor similar statute), (d) such intent-to-use application shall constitute Collateral; Equity Interests in Excluded Joint Ventures, (he) any assets subject to a Capital Lease Obligation or purchase money security interest to the extent that contract governing such transactions prohibits the granting of a Loan Party as a lessee or sublessee under a real property lease; (i) any accounts sold and any security interests granted lien in such accounts pursuant to the terms of, or in connection with, the Permitted Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material assets and (iif) the type that the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent an amount equal to $55,362,740 held in writing in its sole discretion to be excluded from Collateralaccount number 134757548 at JPMorgan Chase Bank until December 31, 2006.

Excluded Collateral. Notwithstanding the broad foregoing provisions of this §2, such grant of the security interest set forth in Section 3.1 above, the Collateral shall not include extend to, and the term "Collateral" shall not include, any of the following (collectively, the “Excluded Assets”): (a) (i) more than sixty-five percent (65%) of the presently existing chattel paper and general intangibles which are now or 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 Xxxxxxxx demonstrates to the reasonable satisfaction of Agent that a pledge and security interest in more than sixty-five percent (65%) of the presently existing and hereafter 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 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 such consent being provided with respect to any license or contract, such license or contract shall automatically be included in the 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 held by the agreement creating such Permitted Lien Company as licensee, lessee or would otherwise constitute a default thereunder or create a right of termination a party thereto (other than Borrower)otherwise, 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 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; (e) any lease, license or other agreement and any 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) such chattel paper and general intangibles are not assignable or capable of being encumbered as a grant matter of a security interest therein to secure law or under the Secured Obligations would violate or invalidate such lease, terms of the license, contract lease or other agreement or create a right of termination in favor of any other party applicable 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 solely to the extent that any such term would restriction shall be rendered ineffective pursuant to Sections 9-406enforceable under applicable law), 9-408 or 9-409 (or any other Section) of Article 9 without the consent of the UCC)licensor or lessor thereof or other applicable party thereto and (b) such consent has not been obtained; (f) any assets as to which Agent in its reasonable discretion shall determine provided, however, that the costs and burdens foregoing grant of obtaining or perfecting a security interest therein substantially outweigh shall extend to, and the benefit to the Lenders of the security afforded thereby (includingterm "Collateral" shall include, 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 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; (h) any interest of a Loan Party as a lessee or sublessee under a real property lease; (i) any accounts sold and any security interests granted in all proceeds of such accounts pursuant chattel paper and general intangibles to the terms of, extent that the assignment or in connection with, the Permitted Certain information marked as [***] has been excluded from this exhibit because it encumbering of such proceeds is both (i) not material so restricted and (ii) the type 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 the Registrant treats as private or confidential. Receivables Factoring Arrangement; (j) any Excluded Accounts (including any Cash contained therein) and (k) any other assets as may be agreed by Agent in writing in its sole discretion to be 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 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 xxxx 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, and nothing contained in the Patent Assignment or the Trademark Assignment shall derogate from any of the rights or remedies of the Agent or any of the Banks hereunder. Nor shall anything contained in the Patent Assignment or the Trademark Assignment be deemed to prevent or extend the time of attachment or perfection of any security interest in such Collateral created hereby.