INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit 10.3
INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “IP Security Agreement”) dated June 24, 2009, is made by
the Persons listed on the signature pages hereof (collectively, the “Grantors”) in favor of U.S.
Bank National Association, (“US Bank”), as collateral trustee (the “Collateral Trustee”) for the
Secured Parties (as defined in the Indenture referred to below).
WHEREAS, Terremark Worldwide, Inc., a Delaware corporation (the “Company”) and the Grantors
have entered into an Indenture dated as of June 24, 2009 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Indenture”), with The Bank of New York
Mellon Trust Company, N.A., as trustee, (the “Trustee”) and the Guarantors party thereto.
WHEREAS, the Company and the Grantors have entered into a Collateral Trust Agreement with the
Collateral Trustee, the Trustee and the other parties party thereto (the “Collateral Trust
Agreement”). Terms defined in the Indenture or the Collateral Trust Agreement and not otherwise
defined herein are used herein as defined in the Indenture or Collateral Trust Agreement.
WHEREAS, as a condition precedent to the entry into the Parity Lien Documents by the Parity
Lien Representatives and the other holders of Parity Lien Obligations, each Grantor has executed
and delivered that certain Security Agreement dated June 24, 2009, made by the Grantors to the
Collateral Trustee (as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Security Agreement”).
WHEREAS, under the terms of the Security Agreement, the Grantors have granted to the
Collateral Trustee, for the ratable benefit of the Secured Parties, a security interest in, among
other property, certain intellectual property of the Grantors, and have agreed as a condition
thereof to execute this IP Security Agreement for recording with the U.S. Patent and Trademark
Office, the United States Copyright Office and other governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Grantor agrees as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the Collateral Trustee
for the ratable benefit of the Secured Parties a security interest in all of such Grantor’s right,
title and interest in and to the following (the “Collateral”):
(i) the patents and patent applications set forth in Schedule A hereto (the
“Patents”);
(ii) the trademark and service xxxx registrations and applications set forth in
Schedule B hereto (provided that no security interest shall be granted in United
States intent-to-use trademark applications to the extent that, and solely during
the period in which, the grant of a security interest therein would impair the
validity or enforceability of such intent-to-use trademark applications under
applicable federal law), together with the goodwill symbolized thereby (the
“Trademarks”);
(iii) all copyrights, whether registered or unregistered, now owned or
hereafter acquired by such Grantor, including, without limitation, the copyright
registrations and applications and exclusive copyright licenses set forth in
Schedule C hereto (the “Copyrights”);
(iv) all reissues, divisions, continuations, continuations-in-part, extensions,
renewals and reexaminations of any of the foregoing, all rights in the foregoing
provided by international treaties or conventions, all rights corresponding thereto
throughout the world and all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto;
(v) any and all claims for damages and injunctive relief for past, present and
future infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation, to xxx for
and collect, or otherwise recover, such damages; and
(vi) any and all proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral of or arising from any of the
foregoing.
SECTION 2. Security for Obligations. The grant of a security interest in the
Collateral by each Grantor under this IP Security Agreement secures the payment of all Secured
Obligations of such Grantor now or hereafter existing under or in respect of the Parity Lien
Documents, whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees, indemnifications, contract causes
of action, costs, expenses or otherwise. Without limiting the generality of the foregoing, this IP
Security Agreement secures, as to each Grantor, the payment of all amounts that constitute part of
the Secured Obligations and that would be owed by such Grantor to any Secured Party under the
Parity Lien Documents but for the fact that such Secured Obligations are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving a
Grantor.
SECTION 3. Recordation. Each Grantor authorizes and requests that the Register of
Copyrights, the Commissioner for Patents and the Commissioner for Trademarks and any other
applicable government officer record this IP Security Agreement.
SECTION 4. Execution in Counterparts. This IP Security Agreement may be executed in
any number of counterparts, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
SECTION 5. Grants, Rights and Remedies. This IP Security Agreement has been entered
into in conjunction with the provisions of the Security Agreement. Each Grantor does hereby
acknowledge and confirm that the grant of the security interest hereunder to, and the rights and
remedies of, the Collateral Trustee with respect to the Collateral are more fully set forth in the
Security Agreement, the terms and provisions of which are incorporated herein by reference as if
fully set forth herein.
SECTION 6. Governing Law. This IP Security Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard to its conflict of
law principles that would cause the law of another jurisdiction to apply (other than Sections
5-1401 and 5-1402 of the New York General Obligations Law.
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IN WITNESS WHEREOF, each Grantor has caused this IP Security Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above written.
| TERREMARK WORLDWIDE, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK NORTH AMERICA, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK EUROPE, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERRENAP DATA CENTERS, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| PARK WEST TELECOMMUNICATIONS INVESTORS, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TECOTA SERVICES CORP. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TECHNOLOGY CENTER OF THE AMERICAS, LLC |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK FEDERAL GROUP, INC. |
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| By /s/ Xxxxxx Xxxxxxx | ||||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK FINANCIAL SERVICES, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK FORTUNE HOUSE #1, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK LATIN AMERICA, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK MANAGEMENT SERVICES, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK REALTY, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK TECHNOLOGY CONTRACTORS, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERREMARK TRADEMARK HOLDINGS, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| TERRENAP SERVICES, INC. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| SPECTRUM TELECOMMUNICATIONS CORP. |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| NAP OF THE CAPITAL REGION, LLC |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| NAP WEST, LLC |
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| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer Address for notices: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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| U.S. BANK NATIONAL ASSOCIATION, as Collateral Trustee |
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| By /s/ Xxxxxxx Xxxxxxxx | ||||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Vice President Address for notices: U.S. Bank National Association 00 Xxxxxxxxxx Xxxxxx XX-XX-XX0X Xx. Xxxx, XX 00000-0000 Attn: Corporate Trust Administration |
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