Exhibit 10.2


 


SECURITY
AND PLEDGE AGREEMENT


 


THIS SECURITY AND PLEDGE AGREEMENT (this “Agreement”)
is entered into as of February 29, 2008 among the parties identified as “Grantors”
on the signature pages hereto and such other parties as may become Grantors
after the date hereof (individually a “Grantor”, and collectively the “Grantors”),
and Societe Generale, in its capacity as administrative agent (in such
capacity, the “Administrative Agent”) for the holders of the Obligations
(defined below).


 


RECITALS


 


WHEREAS, pursuant to that certain Credit and Guaranty
Agreement, dated as of February 29, 2008 (as it may be amended, amended
and restated, joined, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among AboveNet, Inc., a Delaware
corporation, AboveNet Communications, Inc., a Delaware corporation (“ACI”),
AboveNet of Utah, LLC, a Delaware limited liability company, AboveNet of VA,
LLC, a Virginia limited liability company and AboveNet International, Inc.,
a Delaware corporation, and such other Persons joined thereto as a Borrower
from time to time (each a “Borrower” and together, the “Borrowers”),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto, CIT Lending Services Corporation, as Documentation Agent and
Societe General, as Administrative Agent, the Lenders have agreed to make Loans
and provide other financial accommodations upon the terms and subject to the
conditions set forth therein;


 


WHEREAS, each Grantor acknowledges and agrees that the
Lenders would not enter into the Credit Agreement if each Grantor did not grant
the Collateral to the Lenders as security for the Obligations pursuant to this
Security Agreement;


 


WHEREAS, this Agreement is required by the terms of
the Credit Agreement; and


 


NOW, THEREFORE, in consideration of these premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:


 


1.             Definitions.


 


(a)           Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.


 


(b)           The
following terms shall have the meanings assigned to such terms in the UCC:  Accession, As-Extracted Collateral, Chattel
Paper, Commercial Tort Claim, Goods, Consumer Goods, Deposit Account, Document,
Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures,
General Intangible, Goods,  Instrument,
Inventory, Investment Property, Letter-of-Credit Right, Manufactured Home,
Proceeds, Payment Intangible, Records, Securities Entitlement, Securities
Account, Security, Software, Supporting Obligation and Tangible Chattel Paper.


 


(c)           The
following terms shall have the meanings set forth below:


 


 

















 


“Accounts” means collectively (a) any
right to payment of a monetary obligation, whether or not earned by
performance, (b) without duplication, any “Account” (as defined in the
UCC), any accounts receivable (whether in the form of payments for services
rendered or goods sold, rents, license fees or otherwise), any Payment
Intangibles and all other rights to payment and/or reimbursement of every kind
and description, whether or not earned by performance, (c) all accounts,
General Intangibles, rights, remedies, Supporting Obligations, Letter-of-Credit
Rights and security interests in respect of the foregoing, all rights of
enforcement and collection, all books and records evidencing or related to the
foregoing, and all rights under the Loan Documents in respect of the foregoing,
(d) all information and data compiled or derived by any Grantor or to
which any Grantor is entitled in respect of or related to the foregoing, and (e) all
Proceeds of any of the foregoing.


 


“Collateral” has the meaning provided in Section 2
hereof.


 


“Contract” means all contracts or agreements to
which any Grantor is a party (including, without limitation, (a) each
partnership, joint venture or limited liability company agreement to which such
Grantor is a party, (b) each lease, license or sublicense, evidence of Indebtedness,
mortgage, indenture, security agreement, deed of trust or other contract,
commitment or obligation to which such Grantor is a party, and (c) any
Hedge Agreement to which such Grantor is a party.


 


“Contract Rights” means all of the rights of
any Grantor (including, without limitation, all rights to payment) under any
Contract.


 


“Copyright License” means any written
agreement, naming any Grantor as licensor, granting any right under any
Copyright.


 


“Copyrights” means (a) all copyrights in
all Works (as defined below), now existing or hereafter created or acquired,
all registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Copyright Office or in any equivalent office
or agency of the United States, any state thereof or any other country or any
political subdivision thereof, or otherwise, or at use at common law, and (b) all
renewals thereof.


 


“Equity Interest” means all of the equity
capital, security, share, unit, partnership interest, membership interest,
ownership interest, equity interest, option, warrant, right to purchase,
participation, equity security or analogous interest (or other ownership or
profit interests in) of or in a corporation, partnership, limited partnership,
limited liability company, business trust or other entity, of whatever nature,
type, series or class, whether voting or nonvoting, certificated or
uncertificated, common or preferred, and all rights and privileges incident
thereto, and all of the other ownership or profit interest in such entity,
whether or not outstanding on any date of determination, in each case that is 


 


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issued by a Person organized under the laws
of any political subdivision of the United States.


 


“Intellectual Property” shall mean United
States, international or foreign (a) Trademarks and Trademark Licenses, (b) Copyrights
and Copyright Rights, (c) Patents, (d) Patent Licenses, (e) Software
(including source codes, object codes, date and related documentation), (f) URLs,
(g) confidential and proprietary information, including, without
limitation all trade secrets, technology, ideas, know-how, formulae and
customer and supplier lists, (h) Works and (i) all other proprietary
rights, including but not limited to other proprietary rights set forth in Section 5.17
of the Credit Agreement.


 


“IP Security Acknowledgment” has the meaning
provided in Section 4(a)(v) hereof.


 


“Issuer” shall mean each of ACI, AboveNet of
Utah, LLC, AboveNet of VA, LLC, AboveNet International, Inc., MFN Europe
Finance, Inc., MFN International, LLC, Mediaxstream, LLC and any other
issuer of any of the Pledged Equity.


 


“Patent License” means any agreement, whether written
or oral, providing for the grant by or to a Grantor of any right to
manufacture, use or sell any invention covered by a Patent.


 


“Patents” means (a) all letters patent of
the United States or any other country and all reissues and extensions thereof,
and (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and continuations-in-part
thereof, and any design patents.


 


“Pledged Equity” means, with respect to each
Grantor, (i) 100% of the issued and outstanding Equity Interests owned by
such Grantor of each Domestic Subsidiary, including the Equity Interests owned
by such Grantor on the date hereof and set forth on Schedule 1
hereto, (ii) any other Equity Interests of the Issuers listed in Schedule
1 hereto, owned by such Grantor on the date hereof and (iii) any other
Equity Interests hereafter acquired by such Grantor, in each case together with
the certificates (or other agreements or instruments), if any, representing
such Equity Interests, and all options and other rights, contractual or
otherwise, with respect thereto, including, but not limited to, the following:


 


(1)           all
Equity Interests representing a dividend thereon, or representing a
distribution or return of capital upon or in respect thereof, or resulting from
a stock split, revision, reclassification or other exchange therefor, and any
subscriptions, warrants, rights or options issued to the holder thereof, or
otherwise in respect thereof;


 


(2)           all
other payments due or to become due to the Grantor in respect of such Equity
Interests, whether under any by-laws, operating agreements, limited liability
company agreement, other governing 


 


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documents or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;


 


(3)           all
claims, rights, power, privileges, authority, options, security interests,
Liens and remedies, if any, of each Grantor, under any governing document, or
at law, or otherwise in respect of such Equity Interests;


 


(4)           all
future claims, if any, of such Grantor against the Issuer of such Equity
Interests for moneys loaned or advanced, for services rendered or otherwise;


 


(5)           all
of each Grantor’s rights under any by-laws, limited liability company agreement,
operating agreement or other governing documents or at law, to exercise and
enforce every right, power, remedy, authority, option and privilege of such
Grantor relating to such Equity Interests;


 


(6)           in
the event of any consolidation or merger involving the Issuer thereof and in
which such Issuer is not the surviving Person, all shares of each class of the
Equity Interests of the successor Person formed by or resulting from such
consolidation or merger; and


 


(7)           in
the case of membership interests in limited liability companies, all of each
Grantor’s capital therein and all of its interest in all profits, losses,
assets and other distributions to which such Grantor shall at any time be
entitled in respect of such limited liability company interest.


 


“Pledge Registration and Control Agreement” has
the meaning set forth in Section 4(a)(iii) hereof.


 


“Trademark License” means any agreement,
written or oral, providing for the grant by or to a Grantor of any right to use
any Trademark or service marks.


 


“Trademarks” means (a) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, trade dress, service marks, logos, URLs and other
source or business identifiers, and the goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith (other than “intent to
use” applications until a verified statement of use is filed with respect to
such applications), and all uses at common law, whether in the United States
Patent and Trademark Office or in any equivalent office or agency of the United
States, any state thereof or any other country or any political subdivision
thereof, or otherwise and (b) all renewals thereof.


 


“UCC” means the Uniform Commercial Code in
effect from time to time in the State of New York.


 


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“URLs” shall mean, in relation to any Grantor,
all internet domain names that are used primarily in connection with the
business of such Grantor and that are owned or otherwise used by such Grantor.


 


“Work” means any work that is subject to
copyright protection pursuant to Title 17 of the United States Code or
under any similar  law of the United States,
any state thereof or any other country or any political subdivision thereof, or
otherwise.


 


2.             Grant of Security Interest in
the Collateral.  To secure the prompt
payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Obligations, each
Grantor hereby grants to the Administrative Agent, for the benefit of the
Secured Parties, a continuing security interest in, and a right to set off
against, any and all right, title and interest of such Grantor in and to all
personal Property of every kind, including, without limitation, all of the
following, whether now owned or existing or hereafter owned, acquired, existing
or arising hereafter (collectively, the “Collateral”):


 


(a)           all
Accounts;


 


(b)           all
Books and Records;


 


(c)           all
cash and currency;


 


(d)           all
Chattel Paper;


 


(e)           all
Contracts, together with all Contract Rights;


 


(f)            all
Commercial Tort Claims;


 


(g)           all
Deposit Accounts including but not limited to all Blocked Accounts;


 


(h)           all
Documents (other than title documents with respect to vehicles);


 


(i)            all
Equipment (including, for the avoidance of doubt, all Dark Fiber);


 


(j)            all
Fixtures;


 


(k)           all
General Intangibles;


 


(l)            all
Goods;


 


(m)          all
Instruments;


 


(n)           all
Intellectual Property;


 


(o)           all
Inventory;


 


(p)           all
Investment Property;


 


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(q)           all
Letter-of-Credit Rights;


 


(r)            all
Pledged Equity;


 


(s)           all
Supporting Obligations; and


 


(t)            all
Accessions and all Proceeds of any and all of the foregoing.


 


Notwithstanding anything to the contrary contained
herein, the security interests granted under this Agreement shall not extend
to, and the term “Collateral” will not include, (a) the Excluded Assets, (b) Excluded
Accounts, (c) any Property that is the subject of a Permitted Lien,
whether securing purchase money Indebtedness permitted under the Credit
Agreement or otherwise, pursuant to documents that prohibit such Grantor from
granting any other Liens in such Property, (d) the assets owned by, and
the Equity Interests issued by, the Foreign Subsidiaries and (e) any
lease, license (including an FCC License), franchise, authorization,
Governmental Approval or other Contract of a Grantor if the grant of a security
interest in such lease, license, franchise, authorization, Governmental
Approval or Contract in the manner contemplated by this Agreement is prohibited
by the terms of such lease, license, franchise, authorization, Governmental
Approval or Contract or by applicable Law; provided that (i) any
such limitation described in the foregoing clauses (c) and (e) on the
security interests granted hereunder shall only apply to the extent that any
such prohibition could not be rendered ineffective pursuant to the UCC or any
other applicable Law (including Debtor Relief Laws) or principles of equity, (ii) 
in the event of the termination or elimination of any such prohibition or the
requirement for any consent contained in such lease or license or in any
applicable Law, to the extent sufficient to permit any such item to become
Collateral hereunder, or upon the granting of any such consent, or waiving or
terminating any requirement for such consent, a security interest in such lease
or license or Contract shall be automatically and simultaneously granted hereunder
and shall be included as Collateral hereunder and (iii) all rights to
payment of money due or to become due pursuant to, and all rights to the
Proceeds from the sale of, any such excluded Property or Contract shall be and
at all times remain subject to the security interests created by this
Agreement.


 


The Grantors hereby acknowledge and agree that the
security interest created hereby in the Collateral constitutes continuing
collateral security for all of the Obligations, whether now existing or hereafter
arising and including any amounts currently outstanding and any advances which
may be made in the future (this security interest being as security interest
which is intended to secure future advances and Obligations).


 


3.             Representations and Warranties.  Each Grantor hereby represents and warrants
to the Administrative Agent, for the benefit of the Secured Parties, that:


 


(a)           Ownership.  Each Grantor is the legal and beneficial
owner of its Collateral and has the right to pledge, sell, assign or transfer
the same.  There exists no “adverse claim”
within the meaning of Section 8-102 of the UCC with respect to the Pledged
Equity of any Grantor.


 


(b)           Security
Interest/Priority.  This Agreement
creates a valid security interest in favor of the Administrative Agent, for the
benefit of the Secured Parties, in the 


 


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Collateral and, when properly perfected by filing, shall constitute a
valid and perfected, first priority security interest in the Collateral (including
all uncertificated Pledged Equity that does not constitute Securities), to the
extent such security interest can be perfected by filing under the UCC, free
and clear of all Liens except for Permitted Liens.  The (i) taking possession by the Administrative
Agent of the certificated securities (if any) evidencing the Pledged Equity and
all other Instruments constituting Collateral will perfect and establish the
first priority of the Administrative Agent’s security interest in all the
Pledged Equity evidenced by such certificated securities and such Instruments
and (ii) execution by the applicable Issuer (other than MediaXstream,
LLC), the Administrative Agent and Grantors of the Pledge Registration and
Control Agreement attached hereto as Exhibit 1 will perfect by
control (as such term is used in Articles 8 and 9 of the UCC) and, where
applicable, establish the first priority of Administrative Agent’s security
interest in all Pledged Equity which constitutes uncertificated
securities.  With respect to any
Collateral consisting of a Deposit Account, Securities Entitlement or held in a
Securities Account, upon execution and delivery by the applicable Grantor, the
applicable Securities Intermediary and the Administrative Agent of a Deposit
Account Control Agreement or Securities Account Control Agreement, as
applicable, the Administrative Agent shall have a valid and perfected, first
priority security interest in such Collateral.


 


(c)           Types
of Collateral.  None of the
Collateral consists of, or is the Accession or Proceeds of, As-Extracted
Collateral, Consumer Goods, Farm Products, Manufactured Homes or standing
timber.


 


(d)           Equipment
and Inventory.  With respect to any
Equipment and/or Inventory of a Grantor, such Grantor has exclusive possession
and control of such Equipment and Inventory except for (i) Equipment
leased by such Grantor as a lessee or lessor or (ii) Equipment or
Inventory in transit with common carriers. 
No Inventory of a Grantor is held by a Person other than a Grantor
pursuant to consignment, sale or return, sale on approval or similar
arrangement.


 


(e)           Pledged
Equity.  Schedule 1 is
true, correct and complete in all respects. 
Except as disclosed on Schedule 1, all Pledged Equity is
duly authorized and validly issued, is fully paid and, to the extent
applicable, nonassessable and is not subject to the preemptive rights of any
Person (or such preemptive rights have been waived to the satisfaction of the
Lenders).  As of the date hereof, except
as disclosed on Schedule 1, there are no existing options,
warrants, calls or commitments of any character whatsoever relating to the
Equity Interests of any Issuer.


 


(f)            Partnership
and Limited Liability Company Interests. 
Except as set forth on Schedule 3(f) and except for
certificated Equity Interests issued by the corporate Grantors and pledged to
Administrative Agent hereunder, none of the Pledged Equity Interests (i) is
dealt in or traded on a securities exchange or in a securities market, (ii) by
its terms expressly provides that it is a Security governed by Article 8
of the UCC, (iii) is an investment company security, (iv) is held in
a Securities Account or (v) constitutes a Security or a Financial Asset.


 


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(g)           Reserved


 


(h)           No
Restrictions.  Except as set forth on
Schedule 3(h), no restrictions in any Organization Document
governing any Pledged Equity or any other document related thereto would limit
or restrict (i) the grant of a Lien pursuant to this Agreement on such
Pledged Equity, (ii) the perfection of such Lien or (iii) the
exercise of remedies in respect of such perfected Lien in the Pledged Equity as
contemplated by this Agreement.   True,
correct and complete copies of each Issuer’s Organization Documents governing
any Pledged Equity or any other document related thereto have been delivered to
Administrative Agent.


 


(i)            Consents;
Etc.  Except for (i) the filing
or recording of UCC financing statements, (ii) the filing of appropriate
notices with the United States Patent and Trademark Office and the United
States Copyright Office, (iii) obtaining control to perfect the Liens
created by this Agreement (to the extent required under Section 4(a) hereof),
(iv) such actions as may be required by Laws affecting the offering and
sale of securities, and (v) consents, authorizations, filings or other
actions which have been obtained or made, no consent or authorization of,
filing with, or other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person (including, without limitation,
any stockholder, member or creditor of such Grantor or an Issuer), is required
for (A) the grant by such Grantor of the security interest in the
Collateral granted hereby or for the execution, delivery or performance of this
Agreement by such Grantor (other than as set forth on Schedule 3(i)),
(B) the perfection of such security interest (to the extent such security
interest can be perfected by filing under the UCC, the granting of control (to
the extent required under Section 4(a) hereof) or by filing an
appropriate notice with the United States Patent and Trademark Office or the
United States Copyright Office) or (C) the exercise by the Administrative
Agent or the Secured Parties of the rights and remedies provided for in this Agreement.


 


(j)            Commercial
Tort Claims.  As of the Closing Date,
no Grantor has any Commercial Tort Claims in excess of $100,000 other than as
set forth on Schedule 3(j) hereto.


 


(k)           Accounts.  (i) No amount payable to such Grantor
under or in connection with any Accounts is evidenced by any Instrument or
Chattel Paper which has not been delivered to the Administrative Agent.


 


(ii)           Except
for accounts in an aggregate amount not to exceed $5,000,000 at any time, none
of the obligors on any Accounts is a Governmental Authority.


 


(iii)          The
amounts represented by such Grantor to the Lenders from time to time as owing
to such Grantor in respect of the Accounts will at such times be accurate.


 


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(l)            Intellectual
Property.  No Grantor has any
interest in, or title to, as owner or exclusive licensee, any Patent, Trademark
or Copyright except as set forth in Schedule 3(l).


 


(m)          Pledged
Notes. Each note pledged to the Administrative Agent pursuant to Section 7.03(e) of
the Credit Agreement constitutes, or when executed by the obligor thereof will
constitute, the legal, valid and binding obligation of such obligor,
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors’
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law) and principles of good faith and fair dealing.


 


4.             Covenants.  Each Grantor covenants that until the
Termination Date, such Grantor shall:


 


(a)           Instruments/Chattel
Paper/Pledged Equity/Control.


 


(i)            If
any amount in excess of $100,000 payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument or Tangible Chattel
Paper, or if any property constituting Collateral shall be stored or shipped
subject to a Document, Grantor shall ensure that such Instrument, Tangible
Chattel Paper or Document is either in the possession of such Grantor at all
times or, if requested by the Administrative Agent to perfect its security
interest in such Collateral, is delivered to the Administrative Agent duly
endorsed in a manner satisfactory to the Administrative Agent.  Such Grantor shall ensure that any Collateral
consisting of Tangible Chattel Paper is marked with a legend acceptable to the
Administrative Agent indicating the Administrative Agent’s security interest in
such Tangible Chattel Paper.


 


(ii)           Deliver
to the Administrative Agent promptly upon the receipt thereof by or on behalf
of a Grantor, all certificates and instruments constituting Pledged
Equity.  Prior to delivery to the
Administrative Agent, all such certificates constituting Pledged Equity shall
be held in trust by such Grantor for the benefit of the Administrative Agent
pursuant hereto.  All such certificates
representing Pledged Equity shall be delivered in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of transfer or
assignment in blank.


 


(iii)          Deliver
to the Administrative Agent, and cause each Issuer listed on Schedule 1
attached hereto (other than MediaXstream, LLC) to execute, a pledge
registration and control agreement (the “Pledge Registration Control Agreement”),
substantially in the form of Exhibit 1 attached hereto.


 


(iv)          Deliver
to the Administrative Agent an acknowledgment and consent agreement executed by
an authorized officer of MediaXstream, LLC, substantially in the form of Exhibit 3
hereto.


 


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(v)           Execute
and deliver all agreements, assignments, instruments or other documents as
reasonably requested by the Administrative Agent for the purpose of obtaining
and maintaining control (as such term is used in Articles 8 and 9 of the UCC)
with respect to any Collateral consisting of (i) Deposit Accounts, (ii) Investment
Property, (iii) Letter-of-Credit Rights and (iv) Electronic Chattel
Paper.


 


(vi)          Deliver
to the Administrative Agent an intellectual property security acknowledgment
(the “IP Security Acknowledgment”), substantially in the form of Exhibit 2
attached hereto.


 


(b)           Collateral
Held by Warehouseman, Bailee, etc. 
If any Collateral is at any time in the possession or control of a
warehouseman, bailee or any agent or processor of such Grantor and the
Administrative Agent so requests following the occurrence of an Event of
Default that is then continuing (i) notify such Person in writing of the
Administrative Agent’s security interest therein, (ii) instruct such
Person to hold all such Collateral for the Administrative Agent’s account and
subject to the Administrative Agent’s instructions and (iii) use
commercially reasonable efforts to obtain a written acknowledgment from such
Person that it is holding such Collateral for the benefit of the Administrative
Agent.


 


(c)           Treatment
of Accounts.  Not grant or extend the
time for payment of any Account, or compromise or settle any Account for less
than the full amount thereof, or release any person or property, in whole or in
part, from payment thereof, or allow any credit or discount thereon, in each
case, other than as normal and customary in the ordinary course of a Grantor’s
business.


 


(d)           Commercial
Tort Claims.  Promptly (i) notify
the Administrative Agent of any Commercial Tort Claims in excess of $100,000 by or in favor of such Grantor and (ii) execute
and deliver such statements, documents and notices and do and cause to be done
all such things as may be required by the Administrative Agent, or required by
Law to create, preserve, perfect and maintain the Administrative Agent’s
security interest in any Commercial Tort Claims initiated by or in favor of any
Grantor.


 


(e)           Books
and Records.  Mark its books and
records (and shall cause the Issuer of the Pledged Equity of such Grantor to
mark its books and records) to reflect the security interest granted pursuant
to this Agreement.


 


(f)            Compliance
with Securities Laws.  File all
reports and other information now or hereafter required to be filed by such Grantor
with the United States Securities and Exchange Commission and any other state,
federal or foreign agency in connection with the ownership of the Pledged
Equity of such Grantor.


 


(g)           Nature
of Collateral.  At all times maintain
the Collateral as personal property and, other than with respect to Equipment
installed by Grantor in the ordinary course of its business, to the extent the
same may constitute a fixture under applicable law, not affix any of the
Collateral to any real property in a manner which would change


 


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its nature from personal property to real property or
a Fixture to real property, unless the Administrative Agent shall have a
perfected Lien on such Fixture or real property.


 


(h)           Partnership
and Limited Liability Company Interests. 
Not permit any Pledged Equity consisting of an interest in a partnership
or a limited liability company to (i) be dealt in or traded on a
securities exchange or in a securities market, (ii) by its terms expressly
provide that it is a Security governed by Article 8 of the UCC, (iii) be
an investment company security, (iv) be held in a Securities Account or (v) constitute
a Security or a Financial Asset, in each case without executing and delivering,
and causing the applicable Issuer to execute and deliver to the Administrative
Agent a Pledge Registration and Control Agreement, Securities Account Control
Agreement (as applicable) or such other agreements, documents and instruments
as the Administrative Agent may reasonably require.


 


(i)            Intellectual
Property.  Whenever such Grantor,
either by itself or through any agent, employee, licensee or designee, shall
file an application for the registration of any Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office
or any equivalent office or agency in any other country or any political
subdivision thereof, such Grantor shall report such filing to the
Administrative Agent within five Business Days after the last day of the fiscal
quarter in which such filing occurs. 
Upon request of the Administrative Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments, documents, and
papers as the Administrative Agent may request to evidence the Administrative
Agent’s and the Lenders’ security interest in any Copyright, Patent or
Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby, including but not limited to an IP Security
Acknowledgment.


 


(j)            Transfer
by the Grantors. No Grantor will sell or otherwise dispose of, grant any
option with respect to, or mortgage, pledge or otherwise encumber all or any
part of the Equity Interests or any interest therein, or of the Intellectual
Property (except, in each case, in accordance with or as otherwise expressly
permitted by the terms of this Agreement, the Credit Agreement and the other
Loan Documents).


 


5.             Reserved.


 


6.             Filing of Financing Statements,
Notices, etc, Further Actions.  Each
Grantor hereby authorizes the Administrative Agent to prepare and file such
financing statements (including continuation statements) or amendments thereof
or supplements thereto or other instruments as the Administrative Agent may
from time to time deem necessary or appropriate in order to perfect and
maintain the security interests granted hereunder in accordance with the UCC
(including authorization to describe the Collateral as “all personal property”
or “all assets”).  Each Grantor shall
also execute and deliver to the Administrative Agent such agreements,
assignments or instruments (including affidavits, notices, reaffirmations and
amendments and restatements of existing documents, as the Administrative Agent
may reasonably request) and do all such other things as the Administrative
Agent may reasonably deem necessary or appropriate (i) to assure to the
Administrative Agent of its security interests hereunder and the attachment and
perfection thereof, (ii) to consummate the transactions 


 


 


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contemplated hereby and (iii) to
otherwise protect and assure the Administrative Agent of its rights and
interests hereunder, including with respect to each of the foregoing: (A) such instruments as the Administrative
Agent may from time to time reasonably request in order to perfect and maintain
the security interests granted hereunder in accordance with the UCC, (B) with
regard to Copyrights, a Notice of Grant of Security Interest in Copyrights in
the form determined by the Administrative Agent, (C) with regard to
Patents, a Notice of Grant of Security Interest in Patents for filing with the
United States Patent and Trademark Office in the form determined by the
Administrative Agent and (D) with regard to Trademarks, a Notice of Grant
of Security Interest in Trademarks for filing with the United States Patent and
Trademark Office in the form determined by the Administrative Agent. 
Nothing in this Agreement shall be deemed to constitute an assignment of
any Intellectual Property.  Until the
occurrence of an Event of Default which is continuing, Grantors may retain
possession of the Intellectual Property and use it in any lawful manner not
inconsistent with this Agreement.  In
addition, each Grantor will, at its own expense, make, execute, endorse, acknowledge,
file and/or deliver to the Administrative Agent from time to time, upon the
reasonable request of the Administrative Agent, all such lists, descriptions
and designations of its Collateral, warehouse receipts, receipts in the nature
of warehouse receipts, bills of lading, document of title, vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, powers of attorney, certificates, reports and other
assurances or instruments and take all such further steps relating to the
Collateral and other property or rights covered by the security interests
hereby granted, which the Administrative Agent shall from time to time
reasonably deem appropriate to perfect, preserve or protect its security
interests in the Collateral.


 


7.             Advances.  On failure of any Grantor to perform any of
the covenants and agreements contained herein, the Administrative Agent may, at
its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Administrative Agent may reasonably deem advisable
in the performance thereof, including, without limitation, the payment of any
insurance premiums, the payment of any taxes, a payment to obtain a release of
a Lien (other than a Permitted Lien) or potential Lien (other than a Permitted
Lien), expenditures made in defending against any adverse claim and all other
expenditures which the Administrative Agent may make for the protection of the
security hereof or which Administrative Agent may be compelled to make by
operation of Law.  All such sums and
amounts so expended shall: (a) be repayable by the Grantors on a joint and
several basis promptly upon timely notice thereof and demand therefore; (b) constitute
additional Obligations; and (c) bear interest from the date said amounts
are expended at the Default Rate. 
Neither the performance of any covenant or agreement by the
Administrative Agent on behalf of any Grantor, nor the advance or expenditure
therefor, shall relieve the Grantors of any Default or Event of Default. The
Administrative Agent may make any payment hereby authorized in accordance with
any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax assessment, sale,
forfeiture, tax lien, title or claim except to the extent such payment is being
contested in good faith by a Grantor in appropriate proceedings and against
which adequate reserves are being maintained in accordance with GAAP.


 


 


12

















 


8.             Remedies.


 


(a)           General
Remedies.  Upon the occurrence of an
Event of Default and during continuation thereof, the Administrative Agent
shall have, in addition to the rights and remedies provided herein, in the Loan
Documents, in any other documents relating to the Obligations, or by Law
(including, but not limited to, levy of attachment, garnishment and the rights
and remedies set forth in the UCC of the jurisdiction applicable to the affected
Collateral), the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where the rights
and remedies are asserted and regardless of whether the UCC applies to the
affected Collateral), and further, the Administrative Agent may, with or
without judicial process or the aid and assistance of others, (i) enter on
any premises on which any of the Collateral may be located and, without
resistance or interference by the Grantors, take possession of the Collateral, (ii) dispose
of any Collateral on any such premises, (iii) require the Grantors to
assemble and make available to the Administrative Agent at the expense of the
Grantors any Collateral at any place and time designated by the Administrative
Agent which is reasonably convenient to both parties, (iv) remove any
Collateral from any such premises for the purpose of effecting sale or other
disposition thereof, (v) take possession of any Intellectual Property, by
filing relevant documents with government agencies, including intellectual
property offices, or the equivalent thereto, worldwide, and/or (vi) without
demand and without advertisement, notice, hearing or process of law, all of
which each of the Grantors hereby waives to the fullest extent permitted by
Law, at any place and
time or times, sell and deliver any or all Collateral held by or for it at
public or private sale (which in the case of a private sale of Pledged Equity,
shall be to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire such Pledged Equity for their own account, for
investment and not with a view to the distribution or resale thereof), at any
exchange or broker’s board or elsewhere, by one or more contracts, in one or
more parcels, for cash, upon credit or otherwise, at such prices and upon such
terms as the Administrative Agent deems advisable, in its sole discretion
(subject to any and all mandatory legal requirements). Each Grantor hereby
consents to such sale and acknowledges that any such private sale may be at
prices and on terms less favorable to the seller than the prices and other
terms which might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that such private sale shall be deemed to have been made in a
commercially reasonable manner and, in the case of a sale of Pledged Equity,
that the Administrative Agent shall have no obligation to delay sale of any
such securities for the period of time necessary to permit the Issuer of such
securities to register such securities for public sale under the Securities Act
of 1933. Neither the Administrative Agent’s compliance with applicable Law nor
its disclaimer of warranties relating to the Collateral shall be considered to
adversely affect the commercial reasonableness of any sale.  To the extent the rights of notice cannot be
legally waived hereunder, each Grantor agrees that any requirement of
reasonable notice shall be met if such notice, specifying the place of any
public sale or the time after which any private sale is to be made, is
personally served on or mailed, postage prepaid, to the Borrower in accordance
with the notice provisions of the Credit Agreement at least ten (10) days
before the time of sale or other event giving rise to the requirement of such
notice. The Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such
sale may, without 


 


 


13

















 


further notice, be made at the time and place to which it was so
adjourned.  Each Grantor further
acknowledges and agrees that any offer to sell any Pledged Equity which has
been (i) publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New York, New
York (to the extent that such offer may be advertised without prior
registration under the Securities Act of 1933), or (ii) made privately in
the manner described above shall be deemed to involve a “public sale” under the
UCC, notwithstanding that such sale may not constitute a “public offering”
under the Securities Act of 1933, and the Administrative Agent may, in such
event, bid for the purchase of such securities. The Administrative Agent shall
not be obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. 
To the extent permitted by applicable Law, any Secured Party may be a
purchaser at any such sale.  To the
extent permitted by applicable Law, each of the Grantors hereby waives all of
its rights of redemption with respect to any such sale.  Subject to the provisions of applicable Law,
the Administrative Agent may postpone or cause the postponement of the sale of
all or any portion of the Collateral by announcement at the time and place of
such sale, and such sale may, without further notice, to the extent permitted
by Law, be made at the time and place to which the sale was postponed, or the
Administrative Agent may further postpone such sale by announcement made at
such time and place.


 


(b)           Remedies
relating to Accounts.  During the
continuation of an Event of Default, whether or not the Administrative Agent
has exercised any or all of its rights and remedies hereunder (except as
prohibited by applicable Law, including without limitation, the federal
anti-assignment provisions of 42 USC §1396a(a)(32) and §1395g(c)), (i) each
Grantor will promptly upon request of the Administrative Agent instruct all
account debtors to remit all payments in respect of Accounts to a mailing
location selected by the Administrative Agent and (ii) the Administrative
Agent shall have the right to enforce any Grantor’s rights against its
customers and account debtors, and the Administrative Agent or its designee may
notify any Grantor’s customers and account debtors that the Accounts of such
Grantor have been assigned to the Administrative Agent or of the Administrative
Agent’s security interest therein, and may (either in its own name or in the
name of a Grantor or both) demand, collect (including without limitation by way
of a lockbox arrangement), receive, take receipt for, sell, sue for, compound,
settle, compromise and give acquittance for any and all amounts due or to
become due on any Account, and, in the Administrative Agent’s discretion, file
any claim or take any other action or proceeding to protect and realize upon
the security interest of the holders of the Obligations in the Accounts.  Each Grantor acknowledges and agrees that the
Proceeds of its Accounts remitted to or on behalf of the Administrative Agent
in accordance with the provisions hereof shall be solely for the Administrative
Agent’s own convenience and that such Grantor shall not have any right, title
or interest in such Accounts or in any such other amounts except as expressly
provided herein.  Neither the
Administrative Agent nor the Secured Parties shall have any liability or
responsibility to any Grantor for acceptance of a check, draft or other order
for payment of money bearing the legend “payment in full” or words of similar
import or any other restrictive legend or endorsement or be responsible for
determining the correctness of any remittance. 
Furthermore, during the continuation of an Event of Default, (i) the
Administrative Agent shall have the right, but not the obligation, to make test
verifications of the Accounts in 


 


14

















 


any manner and through any medium that it reasonably considers
advisable, and the Grantors shall furnish all such assistance and information
as the Administrative Agent may require in connection with such test
verifications, (ii) upon the Administrative Agent’s request and at the
expense of the Grantors, the Grantors shall cause independent public
accountants or others satisfactory to the Administrative Agent to furnish to
the Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts and (iii) the
Administrative Agent in its own name or in the name of others may communicate
with account debtors on the Accounts to verify with them to the Administrative
Agent’s satisfaction the existence, amount and terms of any Accounts.


 


(c)           Pledged
Equity.  In addition to the other
rights and remedies hereunder, upon the occurrence of an Event of Default and
during the continuance thereof, the Administrative Agent shall have the right
subject to applicable by-laws, limited liability company agreements or
equivalent organizational agreements of the Issuers, subject to the limitation
set forth in Schedule 3(h) on the date hereof, to (i) transfer
and register in its name or in the name of its nominee or transferee the whole
or any part of the Pledged Equity, (ii) exchange certificates or
instruments representing or evidencing the Pledged Equity for certificates or
instruments of smaller or larger denominations, (iii) exercise the voting
and all other rights as a holder with respect thereto, (iv) collect and
receive all cash dividends and other payments and distributions made thereon
and (v) notify the parties obligated on any of the Pledged Equity to make
payment to Agent of any amounts due or to become due thereunder.


 


(d)           Access.  In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the continuance
thereof, the Administrative Agent shall have the right to enter and remain upon
the various premises of the Grantors without cost or charge to the
Administrative Agent, and use the same, together with materials, supplies,
books and records of the Grantors for the purpose of collecting and liquidating
the Collateral, or for preparing for sale and conducting the sale of the
Collateral, whether by foreclosure, auction or otherwise.  In addition, the Administrative Agent may
remove Collateral, or any part thereof, from such premises and/or any records
with respect thereto, in order to effectively collect or liquidate such
Collateral.


 


(e)           Nonexclusive
Nature of Remedies.  Failure by the
Administrative Agent or the holders of the Obligations to exercise any right,
remedy or option under this Agreement, any other Loan Document, any other
document relating to the Obligations, or as provided by Law, or any delay by
the Administrative Agent or the holders of the Obligations in exercising the
same, shall not operate as a waiver of any such right, remedy or option.  No waiver hereunder shall be effective unless
it is in writing, signed by the party against whom such waiver is sought to be
enforced and then only to the extent specifically stated, which in the case of
the Administrative Agent or the holders of the Obligations shall only be
granted as provided herein.  To the
extent permitted by Law, neither the Administrative Agent, any Agent Related
Person, the holders of the Obligations, nor any party acting as attorney for
the Administrative Agent or the holders of the Obligations, shall be liable
hereunder for any acts or omissions or for any error of judgment or mistake of
fact or law other than to the extent that any losses or liabilities 


 


 


15

















 


with respect thereto are determined in a final non appealable judgment
by a court of competent jurisdiction to have resulted from their gross
negligence or willful misconduct hereunder. 
The rights and remedies of the Administrative Agent and the holders of
the Obligations under this Agreement shall be cumulative and not exclusive of
any other right or remedy which the Administrative Agent or the holders of the
Obligations may have.


 


(f)            Retention
of Collateral.  In addition to the
rights and remedies hereunder, the Administrative Agent may, in compliance with
Sections 9-620 and 9-621 of the UCC or otherwise complying with the
requirements of applicable Law of the relevant jurisdiction, accept or retain
the Collateral in satisfaction of the Obligations.  Unless and until the Administrative Agent
shall have provided such notices, however, the Administrative Agent shall not
be deemed to have retained any Collateral in satisfaction of any Obligation for
any reason.


 


(g)           Deficiency.  In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which the
Administrative Agent or the Secured Parties are legally entitled, or entitled
to hereunder or under any other Loan Document, the Grantors shall be jointly
and severally liable for the deficiency, together with interest thereon at the
Default Rate, together with the costs of collection and the fees, charges and
disbursements of counsel.  Any surplus
remaining after the full payment and satisfaction of the Obligations shall be
returned to the Grantors or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto.


 


(h)           Consent
to Receiver. Without limiting the generality of the foregoing or limiting
in any way the rights of Secured Parties and the Administrative Agent under the
Credit Agreement, this Agreement or the other Loan Documents or otherwise under
applicable Laws, at any time after the occurrence, and during the continuance,
of an Event of Default the Administrative Agent, at the direction of the
Required Lenders, shall be entitled to apply for and have a receiver or
receiver and manager appointed, to the extent permitted under, and in
accordance with, applicable state or federal law, by a court of competent
jurisdiction in any action taken by the Administrative Agent or Secured Parties
to enforce their rights and remedies under the Credit Agreement, hereunder and
under the other Loan Documents in order to manage, protect, preserve, sell and
otherwise dispose of all or any portion of the Collateral and continue the
operation of the business of the Grantors or any of them, and to collect all
revenues and profits thereof and apply the same to the payment of all
reasonable expenses and other charges of such receivership, including the
reasonable compensation of the receiver, and to the payment of the Loans and
other Obligations until a sale or other disposition of such Collateral shall be
finally made and consummated.  EACH
GRANTOR HEREBY IRREVOCABLY CONSENTS TO AND WAIVES ANY RIGHT TO OBJECT TO OR
OTHERWISE CONTEST THE APPOINTMENT OF A RECEIVER AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT, AS PROVIDED ABOVE. 
EACH GRANTOR GRANTS SUCH WAIVER AND CONSENT KNOWINGLY AFTER HAVING
DISCUSSED THE IMPLICATIONS THEREOF WITH COUNSEL, ACKNOWLEDGES THAT THE
UNCONTESTED RIGHT TO HAVE A RECEIVER APPOINTED FOR THE FOREGOING PURPOSES AS
PROVIDED ABOVE IS 


 


16

















 


CONSIDERED ESSENTIAL BY THE ADMINISTRATIVE AGENT AND SECURED PARTIES IN
CONNECTION WITH THE ENFORCEMENT OF THEIR RIGHTS AND REMEDIES HEREUNDER AND
UNDER THE OTHER LOAN DOCUMENTS, AND THE AVAILABILITY OF SUCH APPOINTMENT AS A
REMEDY UNDER THE FOREGOING CIRCUMSTANCES WAS A MATERIAL FACTOR IN INDUCING
SECURED PARTIES TO PROVIDE (AND COMMIT TO PROVIDE) FINANCIAL ACCOMMODATIONS TO
BORROWERS, AND AGREES TO ENTER INTO ANY AND ALL STIPULATIONS IN ANY LEGAL
ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION WITH THE FOREGOING
AND TO COOPERATE FULLY WITH THE ADMINISTRATIVE AGENT AND SECURED PARTIES IN
CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER ALL
OR ANY PORTION OF THE COLLATERAL AND PROPERTY OF THE BORROWERS AND THEIR
SUBSIDIARIES.  NO RIGHT CONFERRED UPON SECURED
PARTIES OR THE ADMINISTRATIVE AGENT HEREBY OR BY ANY OTHER LOAN DOCUMENT SHALL
BE EXCLUSIVE OF ANY OTHER RIGHT REFERRED TO HEREIN OR THEREIN OR NOW OR
HEREAFTER AVAILABLE AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE.  Nothing herein shall be deemed to constitute
any Grantor’s consent or acknowledgment to the existence of an Event of
Default, or prevent any Grantor from contesting the appointment of a receiver
on the basis that an Event of Default has not occurred or is then continuing.


 


9.             Rights of the
Administrative Agent.


 


(a)           Power of Attorney.  In addition to other powers of attorney
contained herein each Grantor hereby designates and appoints the Administrative
Agent, on behalf of the Secured Parties, and each of its designees or agents,
as attorney-in-fact of such Grantor, irrevocably and with power of
substitution, with authority to take any or all of the following actions upon
the occurrence and during the continuance of an Event of Default:


 


(i)            to
demand, collect, settle, compromise, adjust, give discharges and releases, all
as the Administrative Agent may reasonably determine;


 


(ii)           to
commence and prosecute any actions at any court for the purposes of collecting
any Collateral and enforcing any other right in respect thereof;


 


(iii)          to
defend, settle or compromise any action brought and, in connection therewith,
give such discharge or release as the Administrative Agent may deem reasonably
appropriate;


 


(iv)          receive,
open and dispose of mail addressed to a Grantor and endorse checks, notes,
drafts, acceptances, money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or storage of the goods
giving rise to the Collateral of such Grantor on 


 


 


17

















 


behalf of and in the name of such Grantor, or securing, or relating to
such Collateral;


 


(v)           sell,
assign, transfer, make any agreement in respect of, or otherwise deal with or
exercise rights in respect of, any Collateral or the goods or services which
have given rise thereto, as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes;


 


(vi)          adjust
and settle claims under any insurance policy relating thereto;


 


(vii)         execute
and deliver all assignments, conveyances, statements, financing statements,
renewal financing statements, security agreements, affidavits, notices and
other agreements, instruments and documents that the Administrative Agent may
determine necessary in order to perfect and maintain the security interests and
liens granted in this Agreement and in order to fully consummate all of the
transactions contemplated therein;


 


(viii)        institute
any foreclosure proceedings that the Administrative Agent may deem appropriate;


 


(ix)           to
sign and endorse any drafts, assignments, proxies, stock powers, verifications,
notices and other documents relating to the Collateral;


 


(x)            to
exchange certificates or instruments representing or evidencing the Pledged
Equity for certificates or instruments of smaller or larger denominations;


 


(xi)           to
exchange any of the Pledged Equity or other property upon any merger,
consolidation, reorganization, recapitalization or other readjustment of the
Issuer thereof and, in connection therewith, deposit any of the Pledged Equity
with any committee, depository, transfer agent, registrar or other designated
agency upon such terms as the Administrative Agent may deem appropriate;


 


(xii)          to
sign an instrument in writing, causing or sanctioning the transfer of any or
all of the Pledged Equity into the name of the Administrative Agent or one or
more of the Secured Parties or into the name of any nominee or transferee
including, without limitation, to any nominee or transferee to whom the Pledged
Equity or any part thereof may be sold pursuant to Section 8
hereof;


 


(xiii)         to
exercise the voting and all other rights as a holder with respect thereto to
the Pledged Equity;


 


(xiv)        to
collect and receive all cash dividends and other payments and distributions
made with respect to the Pledged Equity, and to notify the parties obligated on
any of the Pledged Equity to make payment to Administrative Agent of any
amounts due or to become due thereunder;


 


 


18

















 


(xv)         to
pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Collateral;


 


(xvi)        to
direct any parties liable for any payment in connection with any of the
Collateral to make payment of any and all monies due and to become due
thereunder directly to the Administrative Agent or as the Administrative Agent
shall direct (except as prohibited by applicable Law, including without
limitation, the federal anti-assignment provisions of 42 USC §1396a(a)(32) and
§1395g(c), as construed by CMS);


 


(xvii)       to
receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any
Collateral;


 


(xviii)      to
withdraw all monies or securities held in any account for application to the
Obligations in accordance with the Credit Agreement;


 


(xix)         to
accelerate any note pledged to the Administrative Agent pursuant to Section 7.03(e) of
the Credit Agreement which may be accelerated in accordance with its terms, and
take any other lawful action to collect upon any such note (including, without
limitation, to make any demand for payment thereon);


 


(xx)          to
pay expenses necessary to preserve the value of the Collateral or the validity,
perfection, rank or value of the Liens created hereunder upon the Collateral,
and


 


(xxi)         to
do and perform all such other acts and things as the Administrative Agent may
reasonably deem to be necessary, proper or convenient in connection with the
Collateral.


 


This power of attorney is a
power coupled with an interest and shall be irrevocable until the Termination
Date.  The Administrative Agent shall be
under no duty to exercise or withhold the exercise of any of the rights,
powers, privileges and options expressly or implicitly granted to the
Administrative Agent in this Agreement, and shall not be liable for any failure
to do so or any delay in doing so. 
Neither the Administrative Agent nor any other Agent Related Person
shall be liable for any act or omission or for any error of judgment or any
mistake of fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross negligence
or willful misconduct as determined in a final non appealable judgment by a
court of competent jurisdiction.  This power
of attorney is conferred on the Administrative Agent solely to protect,
preserve and realize upon its security interest in the Collateral.


 


(b)           Assignment
by the Administrative Agent.  The
Administrative Agent may from time to time assign the security interests
created hereunder to a successor administrative agent appointed in accordance
with the Credit Agreement, and such successor shall be entitled to all of the
rights and remedies of the Administrative Agent under this Agreement in
relation thereto.


 


 


19

















 


(c)           Administrative
Agent’s Duty of Care.  Other than the
exercise of reasonable care to assure the safe custody of the Collateral while
being held by the Administrative Agent hereunder, the Administrative Agent (and
the Secured Parties) shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Grantors shall be
responsible for preservation of all rights in the Collateral, and the
Administrative Agent and the Secured Parties shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering the
surrender of it to the Grantors.  The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which the Administrative
Agent accords its own property, which shall be no less than the treatment
employed by a reasonable and prudent agent in the industry, it being understood
that the Administrative Agent shall not have responsibility for taking any
necessary steps to preserve rights against any parties with respect to any of
the Collateral.  In the event of a public
or private sale of Collateral pursuant to Section 8 hereof, the
Administrative Agent shall have no responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relating to any Collateral, whether or not the
Administrative Agent has or is deemed to have knowledge of such matters, or (ii) taking
any steps to clean, repair or otherwise prepare the Collateral for sale.


 


(d)           Liability
with Respect to Accounts.  Anything
herein to the contrary notwithstanding, each of the Grantors shall remain
liable under each of the Accounts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to each such Account.  Neither the Administrative Agent nor any Secured
Party shall have any obligation or liability under any Account (or any
agreement giving rise thereto) by reason of or arising out of this Agreement or
the receipt by the Administrative Agent or any Secured Party of any payment
relating to such Account pursuant hereto, nor shall the Administrative Agent or
any Secured Party be obligated in any manner to perform any of the obligations
of a Grantor under or pursuant to any Account (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Account (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any performance
or to collect the payment of any amounts which may have been assigned to it or
to which it may be entitled at any time or times.


 


(e)           Voting and Payment Rights in
Respect of the Pledged Equity.


 


(i)            So
long as no Event of Default shall exist, each Grantor may (A) exercise any
and all voting and other consensual rights pertaining to the Pledged Equity of
such Grantor or any part thereof for any purpose not inconsistent with the
terms of this Agreement or the Credit Agreement and (B) receive and retain
any and all dividends (other than stock dividends and other dividends
constituting Collateral which are addressed hereinabove), principal or interest
paid in respect of the Pledged Equity to the extent they are allowed under the
Credit Agreement; and


 


 


20

















 


(ii)           Upon
notice from the Administrative Agent to a Grantor, during the continuance of an
Event of Default, (A) all rights of a Grantor to exercise the voting and
other consensual rights which it would otherwise be entitled to exercise
pursuant to clause (i)(A) above shall cease and all such rights shall
thereupon become vested in the Administrative Agent which shall then have the
sole right to exercise such voting and other consensual rights, (B) all
rights of a Grantor to receive the dividends, principal and interest payments
which it would otherwise be authorized to receive and retain pursuant to
clause (i)(B) above shall cease and all such rights shall thereupon
be vested in the Administrative Agent which shall then have the sole right to
receive and hold as Collateral such dividends, principal and interest payments,
and (C) all dividends, principal and interest payments which are received
by a Grantor contrary to the provisions of clause (ii)(B) above shall be
received in trust for the benefit of the Administrative Agent, shall be
segregated from other property or funds of such Grantor, and shall be forthwith
paid over to the Administrative Agent as Collateral in the exact form received,
to be held by the Administrative Agent as Collateral and as further collateral
security for the Obligations.


 


10.           Application of Proceeds.  Upon the acceleration of the Obligations
pursuant to the Credit Agreement, any payments in respect of the Obligations
and any proceeds of the Collateral, when received by the Administrative Agent
or any Secured Party in cash or its equivalent, will be applied in reduction of
the Obligations in the order and priority set forth in (or otherwise dictated
by) the Credit Agreement.


 


11.           Continuing
Agreement.


 


(a)           This
Agreement shall remain in full force and effect until the Termination Date, at
which time this Agreement and all Liens granted hereunder shall be
automatically terminated and the Administrative Agent shall, upon the request
and at the expense of the Grantors, execute and deliver all UCC termination
statements and/or other documents reasonably requested by the Grantors
evidencing such termination.


 


(b)           This
Agreement shall continue to be effective or be automatically reinstated, as the
case may be, if at any time payment, in whole or in part, of any of the
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Secured Party as a preference, fraudulent
conveyance or otherwise under any Debtor Relief Law, all as though such payment
had not been made; provided that in the event payment of all or any part
of the Obligations is rescinded or must be restored or returned, all reasonable
costs and expenses (including without limitation any reasonable legal fees and
disbursements) incurred by the Administrative Agent or any Secured Party in
defending and enforcing such reinstatement shall be deemed to be included as a
part of the Obligations.


 


12.           Amendments; Waivers;
Modifications, etc.  This Agreement
and the provisions hereof may not be amended, waived, modified, changed,
discharged or terminated except as set forth in the Credit Agreement.


 


 


21

















 


13.           Successors in Interest.  This Agreement shall be binding upon each
Grantor, its successors and assigns and shall inure, together with the rights
and remedies of the Administrative Agent and the holders of the Obligations
hereunder, to the benefit of the Administrative Agent and the holders of the
Obligations and their successors and permitted assigns.


 


14.           Notices.  All notices required or permitted to be given
under this Agreement shall be in conformance with the notice provisions of the
Credit Agreement.


 


15.           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.  It shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.


 


16.           Headings.  The headings of the sections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.


 


17.           Governing Law; Submission to
Jurisdiction; Venue; Waiver of Jury Trial. 
The terms of the Credit Agreement with respect to governing law,
submission to jurisdiction, venue and waiver of jury trial (and where
applicable, judicial reference) are incorporated herein by reference, mutatis mutandis, and the parties hereto
agree to such terms.


 


18.           Severability.  If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and effect
and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.


 


19.           Entirety.  This Agreement, the other Loan Documents and
the other documents relating to the Obligations represent the entire agreement
of the parties hereto and thereto, and supersede all prior agreements and
understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Loan Documents, any other documents relating to
the Obligations, or the transactions contemplated herein and therein.


 


20.           Other Security.  To the extent that any of the Obligations are
now or hereafter secured by property other than the Collateral (including,
without limitation, real property and securities owned by a Grantor), or by a
guarantee, endorsement or property of any other Person, then the Administrative
Agent shall have the right to proceed against such other property, guarantee or
endorsement upon the occurrence of any Event of Default, and the Administrative
Agent shall have the right, in its sole discretion, to determine which rights,
security, liens, security interests or remedies the Administrative Agent shall
at any time pursue, relinquish, subordinate, modify or take with respect
thereto, without in any way modifying or affecting any of them or the
Obligations or any of the rights of the Administrative Agent or the Secured
Parties under this Agreement, under any other of the Loan Documents or under
any other document relating to the Obligations.


 


21.           Rights of Required Lenders.  All rights of the Administrative Agent
hereunder, if not exercised by the Administrative Agent, may be exercised by
the Required Lenders upon written notice to the Grantors that the Required
Lenders have so chosen to exercise such rights.


 


22

















 


22.           Additional Grantors.  Each Domestic Subsidiary of the Borrowers
that is required to become a party to this Agreement pursuant to Section 6.12
of the Credit Agreement shall become a Grantor for all purposes of this
Agreement upon execution and delivery of a Joinder Agreement.


 


23.           Limitation on Lines of Business.  Nothing contained in this Security Agreement
shall be deemed or construed as modifying in any way the restrictions on each
Grantor’s activities as set forth in the Credit Agreement.


 


24.           Joint and Several Liability.  Notwithstanding anything to the contrary in
this Agreement or the other Loan Documents, all payment and performance
obligations of the Grantors arising under this Agreement and the other Loan Documents
shall be joint and several obligations of each Grantor secured by all the
Collateral.  The Administrative Agent may
apply any portion of the Collateral to satisfy any of the Obligations.


 


25.           Waiver of Subrogation. If the
Administrative Agent exercises any of the remedies referred to in Section 8
hereof in respect of any of the Collateral and applies any of the proceeds of
any Collateral to any amounts owing to any of the Secured Parties under the
Loan Documents, no Grantor shall, in respect of such monies, seek to enforce
repayment, obtain the benefit of any security, be indemnified or receive
collateral from any Borrower or a contribution from any other Person, or
exercise any other rights or legal remedies of any kind which may accrue to any
Grantor against any Borrower, whether by way of subrogation, offset,
counterclaim or otherwise, in respect of the amount so payable or so paid (or
in respect of any other monies for the time being due to any Grantor from any
Borrower) if and for so long as any Obligations remain outstanding; provided
however that, in no circumstance shall any Grantor make a claim against any
Collateral owned by any other Grantor for so long as any of the Obligations
remain outstanding. Each of the Grantors shall hold in trust for, and forthwith
pay or transfer to, the Administrative Agent any payment or distribution or
benefit of security received by it contrary to this Section 25.


 


26.           Marshalling. The
Administrative Agent shall not be required to marshal any present or future collateral  security (including, but not limited to, this
Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Administrative Agent hereunder or in respect of such collateral security and
other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising.  To
the extent that it lawfully may, each Grantor hereby agrees that it will not
invoke any law relating to the marshalling of collateral which might cause
delay in or impede the enforcement of the Administrative Agent’s rights under
this Agreement or under any other Instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which
any of the Obligations is secured or payment thereof is otherwise assured, and,
to the extent that it lawfully may, each Grantor hereby irrevocably waives the
benefits of all such laws.


 


27.           Waiver of Bond.   Each Grantor hereby waives the posting of any
bond otherwise required of the Administrative Agent in connection with any
judicial process or proceeding to realize on the Collateral or any other
security for its obligations hereunder, to 


 


23

















 


enforce any judgment or
other court order entered in favor of the Administrative Agent, or to enforce
by specific performance, temporary restraining order, or preliminary or
permanent injunction, this Agreement or any other agreement or document between
the Administrative Agent and such Grantor.


 


 [The
remainder of this page is left blank intentionally.]


 


 


24
















Signature Page to
Security and Pledge Agreement


 


Each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.


 


 


	
  GRANTORS:

  	
  ABOVENET
  COMMUNICATIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET OF UTAH, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  AboveNet Communications, Inc.,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET OF VA, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  AboveNet Communications, Inc.,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET INTERNATIONAL,
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE AGENT:

  	
  SOCIETE GENERAL

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elaine Khalil

  
	
   

  	
  Name:

  	
  Elaine Khalil

  
	
   

  	
  Title:

  	
  Managing Director

  



 


 


25

















 


EXHIBIT 1(1)


 






 (1) [This exhibit should
only be applicable to Issuers which are neither Borrowers nor Guarantors.]


 


26

















 


PLEDGE REGISTRATION AND CONTROL
AGREEMENT


 


Pledge Registration and Control Agreement (“Agreement”),
dated as of February       , 2008, by and
among (i) [NAME OF ISSUER(S)], a [jurisdiction] [organization]
([individually and collectively,] the “Issuer”), (ii) [NAME OF
GRANTOR(S)], a [jurisdiction] [organization] ([individually and collectively,]
the “Grantor”), and (iii) Societe Generale, in its capacity as
administrative agent (together with its successors and assigns in such
capacity, the “Administrative Agent”) for the holders of the Obligations
(the “Administrative Agent”). References herein to each Grantor, as they
relate to an Issuer, shall mean the applicable Grantor pledging the Equity
Interest of such Issuer pursuant to Security Agreement and the Credit
Agreement.


 


Reference is hereby made to that certain Security and
Pledge Agreement dated as of February     , 2008 (as
may be amended, restated, supplemented or otherwise modified, the “Security
Agreement”) among the Administrative Agent, each Issuer, each Grantor and
other parties named therein.  All terms
used herein that are not otherwise defined herein have the meanings assigned to
such terms in the Security Agreement or the Credit Agreement referred to in the
Security Agreement.


 


Each Issuer hereby acknowledges receipt of and agrees
to the terms and provisions of the Security Agreement.  Each Issuer represents and warrants to
Administrative Agent that (i) this Agreement has been duly and validly
authorized, executed and delivered by such Issuer and constitutes the legal,
valid and binding obligation of such Issuer enforceable against it in
accordance with its terms; (ii) as of the date hereof, the applicable
Grantor is the owner of record of the Pledged Equity issued by such Issuer, and
the Pledged Equity issued by such Issuer represent all of the Equity Interests
of the applicable Grantor in such Issuer; (iii) it has no knowledge of any
pledge of, or grant of a security interest in, or adverse claims to, the
Pledged Equity issued by such Issuer (other than in favor of Administrative
Agent); (iv) the execution, delivery and performance by the parties of the
Security Agreement and this Agreement in accordance with their terms will not
violate such Issuer’s Organization Documents or any other agreements or
documents to which such Issuer is a party; (v) it has registered the
pledge and security interest of Administrative Agent in the Pledged Equity
issued by such Issuer in the books and records of such Issuer; and (vi) Schedule 1
of the Security Agreement is true, correct and complete as it relates to Issuer
and the Pledged Equity issued by such Issuer.


 


No Issuer will acknowledge, register or permit the
pledge, transfer, grant of control (as such term is used in Articles 8 and 9 of
the UCC) or other disposition of the Pledged Equity (or any portion thereof)
other than to or as requested by Administrative Agent.  During the existence of an Event of Default,
each Issuer shall promptly comply with the instructions of Administrative Agent
with respect to the Pledged Equity without the further consent or action of any
Grantor, including, without limitation, instructions as to the transfer or
other disposition of the Pledged Equity issued by such Issuer, to pay and remit
to Administrative Agent or its nominee all dividends, distributions and other
amounts payable to the applicable Grantor in respect of the Pledged Equity
issued by such Issuer (upon redemption of the Pledged Equity, dissolution of
such Issuer or otherwise), and to transfer to, and register the Pledged Equity
issued by such Issuer in the name of, Administrative Agent or its nominee or
transferee. Each Issuer acknowledges and agrees that upon the delivery of any
certificates representing the Pledged 


 


 


27

















 


Equity issued by such
Issuer endorsed to Administrative Agent or in blank, or to the extent the
Pledged Equity issued by such Issuer is not represented by certificates, upon
the execution and delivery of this Agreement by the parties hereto,
Administrative Agent’s Lien on the Pledged Equity shall be perfected by control
(as such term is used in Articles 8 and 9 of the UCC).


 


Each Issuer hereby irrevocably constitutes and
appoints Administrative Agent as the proxy and attorney-in-fact of Issuer with
respect to the Pledged Equity issued by such Issuer, including, during the
continuance of an Event of Default, the right to transfer and register in its
name or in the name of its nominee or transferee the whole or any part of the
Pledged Equity issued by such Issuer and the right to take any action and to execute
any instrument which Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement and the Security Agreement.  The appointment of Administrative Agent as
proxy and attorney-in-fact is coupled with an interest and shall be irrevocable
until the termination of this Agreement. 
Such proxy shall be effective, automatically and without the necessity
of any action by any Person. 
Notwithstanding the foregoing, Administrative Agent shall not have any
duty to exercise any such right or to preserve the same and shall not be liable
for any failure to do so or for any delay in doing so.


 


This Agreement shall inure to the benefit of
Administrative Agent, the Secured Parties and their respective successors and
assigns, shall be binding upon each Issuer and each Grantor and their
respective successors and assigns, but no Issuer or Grantor may assign this
Agreement without the prior written consent of Administrative Agent.  None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except in writing duly
signed by the affected Issuer or Grantor, and by the Administrative Agent.  The terms of the Credit Agreement with
respect to governing law, submission to jurisdiction, venue and waiver of jury
trial (and where applicable, judicial reference) are incorporated herein by
reference, mutatis mutandis, and
the parties hereto agree to such terms.


 


SIGNATURE PAGE FOLLOWS


 


 


28

















 


	
   

  	
  [NAME OF ISSUER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF GRANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOCIETE GENERALE, as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


29

















 


EXHIBIT 2


 


 


30

















 


SECURITY INTEREST

(TRADEMARKS AND TRADEMARK APPLICATIONS)


 


WHEREAS, AboveNet, Inc.,
a Delaware corporation (“Grantor”) owns the trademarks listed on Schedule
1 annexed hereto, which trademarks are registered or applied for in the
United States Patent and Trademark Office (all such trademarks, service marks,
registrations and applications, the “Trademarks”);


 


WHEREAS, Grantor, certain
other companies and Societe Generale, in its capacity as administrative agent
(in such capacity, the “Administrative Agent”), for certain lenders,
have executed that certain Security and Pledge Agreement, dated February       ,
2008 (as it may be amended, modified, supplemented, substituted or restated
from time to time, the “Security Agreement”);


 


WHEREAS, pursuant to the
terms of the Security Agreement, Grantor has granted to the Administrative
Agent a continuing security interest in substantially all the assets of
Grantor, including all right, title and interest of Grantor in, to and under
the Trademarks and the applications and registrations thereof, together with
all proceeds and products thereof and the goodwill associated therewith, to
secure the payment, performance and observance of the Obligations (as defined
in the Security Agreement);


 


                NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor does hereby further confirm such grant to the
Administrative Agent of a continuing security interest in all of Grantor’s
right, title and interest in, to and under the Trademarks and the goodwill
associated therewith, to secure the payment, performance and observance of the
Obligations.


 


Grantor does hereby further
acknowledge and affirm that the rights and remedies of the Administrative Agent
with respect to the security interest in the Trademarks made and granted hereby
are more fully set forth in the Security Agreement, the terms and provisions of
which are incorporated by reference herein as if fully set forth herein.


 


IN WITNESS WHEREOF, Grantor has caused this
document to be duly executed on the        day of
February, 2008.


 


	
   

  	
  ABOVENET, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


31

















 


SCHEDULE 1


 


 


	
  Trademark
  / Owner

  	
   

  	
  Serial No./ Registration No.

  	
   

  	
  Filing Date

  	
   

  	
  Goods/Services

  
	
  ABOVENET

   

  Filed
  in the name of AboveNet, Inc., a Delaware corporation

  	
   

  	
  77/382,232

  	
   

  	
  January 28, 2008

  	
   

  	
  Co-location
  services, namely leasing of facilities for computers; computer system
  monitoring and computer security system monitoring services; management of
  information routing on a global computer information network

  
	
  JABNET

   

  Filed
  in the name of AboveNet, Inc., a Delaware corporation

  	
   

  	
  77/099,554

  	
   

  	
  February 5, 2007

  	
   

  	
  A
  telecommunications optical network service providing private, switchable connectivity
  between content creators in the motion picture and television industry

  
	
  DIZOOM

   

  Filed
  in the name of AboveNet, Inc., a Delaware corporation

  	
   

  	
  77/099,578

  	
   

  	
  February 5, 2007

  	
   

  	
  A
  telecommunications optical network service using tunable wavelength services
  to enable the distribution of motion picture, video and IPTV services

  



 


 


32

















 


 


 


EXHIBIT 3


 


 


33

















 


ACKNOWLEDGMENT AND CONSENT


 


                MediaXstream, LLC (“MediaXstream”),
hereby acknowledges receipt of a copy of the Security and Pledge Agreement
dated as of February 29, 2008, by and between AboveNet Communications, Inc.
and the other parties identified as “Grantors” on the signature pages thereto
and Societe Generale, in its capacity as administrative agent (“Administrative
Agent”), and has reviewed the terms and conditions thereunder. Terms not
otherwise defined herein shall have the meaning given to them in the Security
and Pledge Agreement. MediaXstream acknowledges and agrees that the pledge by
AboveNet Communications, Inc. of its interests in MediaXstream under the
Security and Pledge Agreement and any transfer of such interests to the
Administrative Agent in accordance with such agreement constitute a “Permitted
Transfer” under MediaXstream’s Limited Liability Company Agreement.


 


                MediaXstream will not
acknowledge, register or permit the pledge, transfer, grant of control (as such
term is used in Articles 8 and 9 of the UCC) or other disposition of the
Pledged Equity issued by it (or any portion thereof) other than to or as
requested by Administrative Agent. 
MediaXstream also agrees to make all payments due to the Grantors, to
Societe General, as Administrative Agent (i) in the event that the
Administrative Agent notifies MediaXstream of an Event of Default under the
Credit Agreement and so long as such Event of Default continues or (ii) to
the extent permitted by applicable law, in the event that MediaXstream is aware
of the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the applicable Grantor, whether or not the Administrative Agent notifies
MediaXstream of such an event. MediaXstream further agrees that neither the
Administrative Agent nor any Secured Party will have any of the obligations of
an owner of interests, other than with respect to obligations relating to the
transfer of the Pledged Equity pursuant to MediaXstream’s Limited Liability
Company Agreement, unless the Administrative Agent or a Secured Party
affirmatively elects to undertake such obligation.


 


	
  February 29, 2008

  	
  MediaXstream, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices: 

  



                                                                                                


 


34