Common use of Excluded Collateral Clause in Contracts

Excluded Collateral. (a) Notwithstanding the broad grant of the security interest set forth in Section 3.1 above, the Collateral shall not include, and no Lien or security interest is 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 (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 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 become 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 being or will be utilized in the 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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.

Excluded Collateral. (a) Notwithstanding building fixtures (as opposed to trade fixtures) located on premises leased by any Obligor to the broad extent the pledge thereof or grant of the a security interest set forth in Section 3.1 above, the Collateral shall not include, and no Lien or security interest therein is hereby granted on, (i) validly prohibited by the lease governing such premises and (ii) would result in the forfeiture of any Intellectual PropertyObligor’s right, whether now owned title or hereafter acquiredinterest thereunder under Applicable Law, provided, however, other than that at such time as any such grant of a security interest in any such fixtures shall not result in a forfeiture under Applicable Law, such fixtures shall (without any further act or delivery by any Person) constitute Collateral hereunder; (b) in the assets case of the Swiss Borrower, types of Property for which security interest grants and pledges may not be validly granted as a matter of Swiss law; (c) any Investment Property or the proceeds thereof described in Sections 3.2(a)(ii) and (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 saleor assets governed thereby (including any license, licensing contract, permit, lease 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 (franchise 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 Collateraldeemed a General Intangible), (iii) any assets now or proceeds that are the subject of clause (ii) of Permitted Negative Pledges, provided that upon the termination by the applicable holder thereof hereafter held 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 being or will be utilized in the 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 Grantor (which in no event shall include any assets 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 are included in the document providing for such capital lease) prohibitscomputation of the Borrowing Base), 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 Propertyextent, in each case, only that (i) a security interest may not be granted by a Grantor in such Investment Property or General Intangibles as a matter of law or (i) a security interest may not be granted under the express terms of the governing documents applicable to such General Intangible or Investment Property, without the consent of one or more applicable parties thereto; (d) equipment acquired after the Closing Date pursuant to Capital Leases to the extent that the agreements with respect thereto prohibit the inclusion of such equipment as Collateral; and (e) any intent-to-use trademark application 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 a Obligor of a security interest therein would result in the abandonment, invalidation or unenforceability thereof, provided, however, that Excluded Collateral shall not include any proceeds, substitutions or replacements of any Excluded Collateral referred to in this clause (e) (unless such permitproceeds, license substitutions or agreement replacements would constitute Excluded Collateral referred to in favor of the Agent and Lenders this clause (after giving effect to Sections 9-406(de), 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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.

Excluded Collateral. Notwithstanding anything to the contrary contained herein or in the Original Security Agreement, (a) Notwithstanding the broad grant of the security interest set forth contained in Section 3.1 above§2.1 shall not extend to, and the Collateral term "Collateral" shall not include, and no Lien or security interest is hereby granted on, : (i) any Intellectual Propertydirectly held Equity Interests (whether classified as investment property or as a general intangible), whether now owned or hereafter acquired, provided, however, held or owned by a Loan Party (other than the assets directly held Equity Interests (however classified) in a Person that is a Borrower, Guarantor or the proceeds thereof described in Sections 3.2(a)(iiWholly-Owned Restricted Subsidiary) and (iii) (but subject to the proviso contained extent either (x) that a security interest may not be granted by such Loan Party in each such directly held Equity Interests (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 sectionsconsent 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"), the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”) (ii) any assets Equity Interest (whether classified as investment property or the proceeds thereof as a general intangible) in any Person that are the subject of the Liens permitted under clauses is a joint venture (xv) through (xxii) of Permitted Liensand not also a Borrower, provided that upon the termination Guarantor or Wholly-Owned Restricted Subsidiary), which Equity Interest is pledged by the applicable holder thereof or expiration Loan Party to a third party to secure any obligations of any prohibition such Loan Party incurred on behalf of a joint venture so long as the granting of Liens thereon, Investment in such assets (to Person and the extent they do not consist of Intellectual Property) shall automatically be subject to obligation relating thereto are permitted under the security interest granted in favor of Agent hereunder and become part terms of the CollateralCredit Agreement (a "JV Pledged Interest"), (iii) any assets Equity Interest (whether classified as investment property or proceeds that are the subject of clause as a general intangible) in any Unrestricted Subsidiary (ii) of Permitted Negative Pledgesa "Unrestricted Subsidiary Interest"), 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 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 presently existing voting Equity Interests and hereafter arising issued and outstanding shares 100% of capital stock owned by Borrower the non-voting Equity Interests of any first tier 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 being or will be utilized in the 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 CFC (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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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)"Foreign Subsidiary Interest"). Nothing The foregoing excluded Collateral set forth in the foregoing clause 3.2(b) shall sub-clauses (i) restrict the Loan Parties from entering into agreements with respect to Intellectual Property that are otherwise permitted under the Loan Documents or through (iiiv) require the Loan Parties to seek any third party’s consent to the pledge of any Intellectual Property to the Agent that hereof is subject to a Permitted Negative Pledge. Notwithstanding Section 7.3, the filing of a security agreement with the United States Patent herein and Trademark Office shall not be required in connection with any security interest on the Intellectual Property described in the foregoing clause 3.2(b)Credit Agreement referred to as the "Excluded Assets". (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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.

Excluded Collateral. The First Priority Agent, on behalf of itself and the First Priority Lenders, and the Second Priority Agent, on behalf of itself and the Second Priority Lenders, agree that no such creditor shall obtain a Lien on any asset or property of any Grantor unless such other creditors concurrently obtain a Lien thereon or such other creditors waive their rights under this sentence; provided, that the Second Priority Agent, on behalf of itself and the Second Priority Lenders, acknowledges and agrees that the First Priority Claims may be secured by Liens on Excluded Collateral (aas such term is defined in the Indenture as in effect on the date hereof, the “Second Priority Excluded Collateral”) Notwithstanding the broad grant of the security interest set forth type described in Section 3.1 above, the Collateral shall not include, and no Lien or security interest is hereby granted on, clause (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 (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 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 become 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 thereof without the Second Priority Claims being secured by such Second Priority Excluded Collateral and the First Priority Agent, on behalf of Permitted Indebtedness [relating itself and the First Priority Lenders, acknowledges and agrees that the Second Priority Claims may be secured by Liens on Excluded Collateral (as such term is defined in the Credit Agreement as in effect on the date hereof, the “First Priority Excluded Collateral”) of the type described in clause (h) of the definition thereof without the First Priority Claims being secured by such First Priority Excluded Collateral. Notwithstanding anything to letter of credit and corporate credit card reimbursement obligations]the contrary herein, (via) equity or ownership interests in XOMA CDRA, (viineither the First Priority Claims nor any DIP Financing contemplated under Section 6. l(a) raw materials paid for or the cost of which has been reimbursed by NIAID or another agency of the U.S. government which are being or will may be utilized in the conduct of activities under one or more contracts between any Loan Party and such governmental institute or agency, (viii) property owned secured by any Loan Party that is subject Second Priority Collateral (including such First Priority Excluded Collateral) unless consented to a purchase money Lien or a capital lease by the Second Priority Agent, on behalf of itself 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 Second Priority Lenders 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 Second Priority Claims may not be secured by any First Priority Collateral (including a U.S. Bankruptcy Courtsuch Second Priority Excluded Collateral) holds that a security interest in unless consented to by the underlying Intellectual Property is necessary to have a security interest in the Rights to PaymentFirst Priority Agent, then the Collateral shall automatically, and effective as on behalf of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 itself 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicableFirst Priority Lenders.

Excluded Collateral. (a) Notwithstanding anything herein to the broad grant of contrary, but subject in all respects to the security interest set forth provisions contained in this Section 3.1 above1(B), in no event shall the Collateral shall not hereunder include, and no Lien or Debtor shall not be deemed to have granted a security interest is hereby granted on, in (i) any Intellectual Propertyof Debtor’s rights or interests in any program, whether now owned license (including, without limitation, any software license), contract or hereafter acquired, provided, however, other than the assets agreement to which Debtor is a party or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject any of its rights or interests thereunder to the proviso contained in each extent, but only to the extent, that such a grant would, under the terms of such sections)program, license, contract or agreement or otherwise, result in a breach of the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any partterms of, or rights inconstitute a default under, the Intellectual Property (the “Rights or cause a termination of, any license, contract or agreement to Payment”) which Debtor is a party, or (ii) any assets FCC License or the proceeds thereof that are the subject of the Liens permitted under clauses (xv) through (xxii) of Permitted Liensany PUC License, provided that upon the termination by the applicable holder thereof or expiration of any prohibition on the granting of Liens thereon, except at such assets (times and 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, (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 being or will be utilized in the 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 permitFCC 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 agreement in favor of lease has consented to such grant or to 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 extent that 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 such restriction on granting a security interest referred to in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property clauses (other than the assets or the proceeds thereof described in Sections 3.2(a)(iii) and through (iii) (but subject to the proviso contained in each of such sections)this Section 1(B) 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 would be rendered ineffective pursuant to the foregoing clause 3.2(b), Agent will not exercise any remedies (under the UCC or otherwise) with respect to the Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property Applicable Law (other than the assets including any federal, state or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject to the proviso contained in each of such sections)foreign bankruptcy, insolvency or similar law). Nothing in the foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 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 time as that the definition of any prohibition of the foregoing terms included in the description of Collateral is changed, the parties hereto desire that any property which is included in such changed definitions which would not otherwise be included in the foregoing grant on assets or proceeds thereof described the date hereof be included in Sections 3.2(a)(ii) and 3.2(a)(iii) becoming such grant immediately upon the effective date of such revision. Notwithstanding the immediately preceding sentence, the foregoing grant is intended to apply immediately on the date hereof to all Collateral to the fullest extent permitted by Applicable Law regardless of whether any particular item of Collateral is currently subject to the UCC. The security interest interests are granted as security only and shall not subject Secured Party to, or transfer to Secured Party, or in favor any way affect or modify, any obligation or liability of Agent is terminated Debtor with respect to any of the Collateral or expires as contemplated 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 proviso in each Collateral by reason of such sectionsthis Security Agreement, such assets nor shall Secured Party be deemed Intellectual Property and obligated to perform any of the proceeds obligations or duties of such assets shall be deemed proceeds of Intellectual Property that are subject Debtor thereunder or to the provisions of Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicabletake any action to collect or enforce any claim for payment assigned hereunder.

Excluded Collateral. the (i) Excluded Cash Accounts, (ii) the Surety Collateral to the extent (a) Notwithstanding the broad issuer of the 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 in Enertech, (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 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 such Liens are Permitted Liens); (iv) the collection or enforcement of any of the Obligations; (v) the negotiation, documentation, and closing of any restructuring or forbearance agreement with respect to the DIP Loan Documents or Obligations; (vi) amounts advanced by Agent pursuant to Section 7.1.3 of the Agreement; (vii) the enforcement of any of the provisions of any of the DIP Loan Documents; or (viii) any payment under a guaranty, indemnity or other payment agreement provided by Agent or (with Agent’s consent) any Lender, which is reimbursable to Agent or such Lender by Borrower pursuant to Section 2.4.2 of the 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 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 Obligor 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 such day is not a Business Day, for the next preceding Business Day) in Dallas, Texas by the Federal Reserve Bank of Dallas, or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from 3 federal funds brokers of recognized standing selected by Agent. FEIN - with respect to any Person, the Federal Employer Identification Number of such Person. Final Order - the order entered by the Court in the Chapter 11 Case after a final hearing under Bankruptcy Rule 4001 (c)(2), pursuant to Section 364(c) and (d) 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 specific grant of the 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 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 3.1 above2.2 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 Collateral shall Pre-Petition Debt and Pre-Petition Loan Documents, including, but not includelimited 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 Lien or creditors’ committee is appointed, any party in interest) to investigate and challenge (and to the extent successful, avoid) any such liens, security interest is hereby granted oninterests and claims for a period of 45 days from the petition date, (ib) 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 Intellectual Propertyright 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 (and any Debt provided by Chubb which is acceptable to Agent in the good faith exercise of its credit judgment), unless such 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 otherwise 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 Subsidiary that is not a Domestic Subsidiary. Funding Account - an account established by Borrowers or 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 Credit Party, whether now owned or hereafter acquiredcreated or acquired by a Credit Party, providedincluding all choses in action, howevercauses of 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 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 Accounts). Governmental Approvals - all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities. Governmental Authority - any federal, state, municipal, national, foreign or other governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or 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 assets United States, the District of Columbia or a foreign entity or government. Guarantors – the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject Persons on Annex II attached to the proviso contained in Agreement and each other Person who guarantees payment or performance of such sections), the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all whole 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 become 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 being or will be utilized in the 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)Obligations. (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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.

Excluded Collateral. The following assets of the Grantors shall be excluded from the Collateral: (a) Notwithstanding purchase money Liens on such equipment and other fixed assets which is permitted by the broad grant terms of the security interest set forth Financing Documents so long as such Lien attaches only to the property so acquired or leased with such purchase money obligations and to the extent the agreement creating such Lien prohibits additional Liens on such property; (b) certificated motor vehicles, unless requested by the Required Secured Parties; (c) Rate Management Obligation Cash Collateral and (d) other property with a fair market value that, individually or in Section 3.1 abovethe aggregate with all other such property, is not, in the Collateral shall not includejudgment of the Required Secured Parties, and no Lien or security interest is hereby granted onmaterial. Notwithstanding anything contained herein, (i) any Intellectual Property, whether now owned or hereafter acquired, provided, however, other than the Agent shall be permitted to take a security interest in and a Lien on the assets owned by any Foreign Subsidiary solely as security for the obligations owing by Foreign Subsidiaries under the 2008 Credit Agreement and procure guaranties from any Foreign Subsidiary solely for the obligations owing by Foreign Subsidiaries under the 2008 Credit Agreement, and the Agent shall not be required to make such security interest and Lien or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject guaranty available to the proviso contained in each Collateral Agent for the benefit of such sections)the Noteholders, the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”) (ii) any assets 2008 Lender or its Affiliates party to Rate Management Transactions in existence on the proceeds thereof that are the subject of the Liens permitted under clauses date hereof (xv) through (xxii) of Permitted Liensas amended or modified from time to time, provided that upon the termination by the applicable holder thereof such amendments or expiration of any prohibition on the granting of Liens thereon, such assets (to the extent they modifications do not consist of Intellectual Propertyincrease or extend the monetary obligations due thereunder) shall automatically be subject to the security interest granted in favor of Agent hereunder and become 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 with Company or any other matter, (v) cash or cash equivalents securing obligations of its Subsidiaries shall be 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 being or will be utilized in the 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 take a security interest in Rate Management Obligation Cash Collateral as security for the Rate Management Obligations under such permit, license or agreement in favor of the Agent Rate Management Transactions 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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 Trademark Office they shall not be required in connection with any to make such 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 Lien available to the security interest in favor Collateral Agent for the benefit 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicableany other Secured Party.

Excluded Collateral. Collectively, (a) Notwithstanding the broad grant of the security interest set forth in Section 3.1 above, the Collateral shall not include, and no Lien or security interest is 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 (iii) (but tangible property 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 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 purchase money liens permitted under clauses (xv) through (xxii) of Permitted LiensSection 10.2 hereof, 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 that the purchase money documents prohibit the grant of Intellectual Propertyjunior liens, (b) shall automatically be subject thirty-five percent (35%) of the Voting Stock of any foreign Subsidiary, (c) all of the Capital Stock of any domestic Subsidiary to the security interest granted extent that the grant or perfection of the pledge of such Capital Stock would be prohibited by liquor licensing laws or would require the consent of a liquor licensing authority that has not been obtained, (d) other property (including liquor licenses) to the extent that the grant or perfection of a Lien thereon in favor of Agent hereunder and become part the Administrative Agent, for the benefit 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 being or will be utilized in the 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 Lenders and the proceeds thereof permitted Administrative Agent, under the Loan Agreement if the contractual obligation pursuant to which such Lien is granted (Documents would be prohibited by law or in the document providing for such capital lease) prohibits, or requires would require the consent of any person other than a Loan Party which Governmental Authority that has not been obtained as a condition obtained, (e) ground leases, to the creation ofextent that any required landlord's consent has not been obtained, any (f) all other Lien on such propertyreal property leases, or (ixg) the equipment located at the Wheeling, Illinois restaurant, (h) any permit Mortgaged Property or license (I) issued by a governmental authority any real property acquired after the Closing Date pursuant to any Loan Party or agreement to which any Loan Party is a party or (II) for the use of another person’s Intellectual PropertySection 10.1(c)(ii), in each case, only case to the extent and for so long as the terms of that such permitMortgaged Property or Real Property is refinanced in accordance with Section 10.1(c) (provided, license that any inventory or agreement general intangibles associated with such Mortgaged Property 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(dReal Property shall not constitute Excluded Collateral), 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 shall automatically, and effective as of the date of this Agreement, include the Intellectual Property (other than the 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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with Investments in respect to Intellectual Property that are otherwise permitted of deferred compensation or options under the Loan Documents or (ii) require Key Employee Stock Ownership Plan which have vested. Existing Credit Agreement. The Credit Agreement dated as of August 28, 2001, and as amended and in effect on the Loan Parties to seek any third party’s consent to Closing Date, among the pledge Borrower, Bank of any Intellectual Property to 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 that is subject to a Permitted Negative Pledgefor such banks. Notwithstanding Section 7.3Existing 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 Borrower, the filing of a security agreement with the United States Patent and 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 Administrative Agent 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicableArranger.

Excluded Collateral. (a) Notwithstanding the broad foregoing provisions of this §2, such grant of the security interest set forth in Section 3.1 aboveshall not extend to, and the Collateral term "Collateral" shall not include, any chattel paper and no Lien 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 foregoing grant of security interest is hereby granted onshall extend to, and the term "Collateral" shall include, (i) any Intellectual Property, whether now owned or hereafter acquired, provided, however, other than the assets or the and all proceeds thereof described in Sections 3.2(a)(ii) of such chattel paper and (iii) (but subject general intangibles to the proviso contained in each extent that the assignment or encumbering of such sections), the Collateral shall include all Accounts proceeds is not so restricted and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”) (ii) upon any assets such licensor, lessor or the 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 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, might have theretofore have been excluded from 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, (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 being or will be utilized in the 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 grant of a security interest in such permitand the term "Collateral." 2.4. Patent and Trademark Assignments. Concurrently herewith the Company is executing and delivering to the Agent, license or agreement in favor for the benefit of the Agent Banks and Lenders (after giving effect the Agent, the Patent Assignment and the Trademark Assignment pursuant to Sections 9-406(d)which the Company is assigning to the Agent, 9-407(a), 9-408(a), or 9-409 for the benefit of the UCC (or any successor provision or provisions). (b) Notwithstanding Banks and the foregoing clause 3.2(a)Agent, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in certain Collateral consisting of patents and patent rights and trademarks, service marks and trademark and service xxxx rights, together with the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as goodwill appurtenant thereto. The provisions of the date Patent Assignment and the Trademark Assignment are supplemental to the provisions of this Agreement, include and nothing contained in the Intellectual Property (other than the assets Patent Assignment or the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject to Trademark Assignment shall derogate from any of the proviso rights or remedies of the Agent or any of the Banks hereunder. Nor shall anything contained in each the Patent Assignment or the Trademark Assignment be deemed to prevent or extend the time of such sections)) to the extent necessary to permit attachment or perfection of Agent’s any security interest in the Rights to Paymentsuch Collateral created hereby. (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 Intellectual Property (other than remedies with respect to Rights to Payment or any other proceeds of the Intellectual Property (other than the 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 foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to 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 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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.

Excluded Collateral. (a) Notwithstanding For avoidance of doubt, it is understood and agreed that the broad grant of Credit Parties and Biovest, which are obligors under or otherwise guarantee the security interest set forth Senior Obligations, have granted Senior Lender Liens in Section 3.1 above, the Excluded Collateral shall not includesecuring the Senior Obligations, and no Lien or security interest is 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 (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 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 become 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 being or will be utilized in the 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 shall automatically, and effective as of the date of this Agreement, include no such Liens in the Intellectual Property 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 assets provisions expressly dealing with the Excluded Collateral) does not apply or relate to or govern in any manner whatsoever the proceeds thereof described in Sections 3.2(a)(ii) and (iii) (but subject Liens granted to Senior Lender to secure 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 Intellectual Property (other than remedies with respect to Rights to Payment Senior Obligations by Biovest or any other proceeds of the Intellectual Property 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 proceeds thereof described in Sections 3.2(a)(iiJunior Priority Collateral) and (iii) (but to secure the Senior Obligations shall not be subject to the proviso contained in each terms and provisions of such sections))this Agreement. Nothing in the foregoing clause 3.2(b) shall (i) restrict the Loan Parties from entering into agreements with respect to Intellectual Property that are otherwise permitted under the Loan Documents or (ii) require the Loan Parties to seek any third party’s consent Notwithstanding anything to the pledge contrary contained herein, if for any reason, prior to the Discharge of the Senior Obligations, any Purchaser acquires possession of any Intellectual Property 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 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 Trademark Office shall not be required in connection with any security interest on the Intellectual Property described in the foregoing clause 3.2(b)Senior Lender. (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 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 Section 3.2(a)(i), 3.2(b) and 3.2(c), as applicable.