PATENT SECURITY AGREEMENT
Exhibit 10.5
This PATENT SECURITY AGREEMENT (this “Patent Security Agreement”) is made this 10th day of June 2005, among the Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and XXXXX FARGO FOOTHILL, INC., in its capacity as administrative agent for the Lender Group and the Bank Product Provider (together with its successors, “Agent”).
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among SAVVIS Communications Corporation, a Missouri corporation, as borrower (the “Borrower”), SAVVIS, Inc. (f/k/a SAVVIS Communications Corporation), a Delaware corporation, the lenders party thereto as “Lenders” (“Lenders”), and Agent, the Lender Group is willing to make certain financial accommodations available to the Borrower pursuant to the terms and conditions thereof; and
WHEREAS, the members of Lender Group are willing to make the financial accommodations to Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that the Grantors shall have executed and delivered to Agent, for the benefit of the Lender Group and the Bank Product Provider, that certain Security Agreement of even date herewith (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Lender Group and the Bank Product Provider, this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement and/or the Credit Agreement.
2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Each Grantor hereby grants to Agent, for the benefit of the Lender Group and the Bank Product Provider, a continuing first priority security interest in all of such Grantor’s right, title and interest in, to and under the following, whether presently existing or hereafter created or acquired (collectively, the “Patent Collateral”):
(a) all of its Patents and Patent Intellectual Property Licenses to which it is a party including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing; and
(c) all products and proceeds of the foregoing, including, without limitation, any claim by such Grantor against third parties for past, present or future infringement or dilution of any Patent or any Patent licensed under any Intellectual Property License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this Patent Security Agreement are granted in conjunction with the security interests granted to Agent, for the benefit of the Lender Group and the Bank Product Provider, pursuant to the Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the security interest in the Patent Collateral 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.
4. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new patentable inventions or become entitled to the benefit of any patent application or patent for any reissue, division, or continuation, of any patent, the provisions of this Patent Security Agreement shall automatically apply thereto. Grantors shall give prompt notice in writing to Agent with respect to any such new patent rights. Without limiting Grantors’ obligations under this Section 4, Grantors hereby authorize Agent unilaterally to modify this Agreement by amending Schedule I to include any such new patent rights of Grantors. Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.
5. COUNTERPARTS. This Patent Security Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. In proving this Patent Security Agreement or any other Loan Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an original signature hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each Grantor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
SAVVIS COMMUNICATIONS CORPORATION, a Missouri corporation | ||
By: |
/s/ Xxxxxxx X. Von Deylen | |
Name: |
Xxxxxxx X. Von Deylen | |
Title: |
Executive Vice President and Chief Financial Officer | |
ACCEPTED AND ACKNOWLEDGED BY: | ||
XXXXX FARGO FOOTHILL, INC., as Agent | ||
By: |
/s/ Xxxxxxx Xxxxx | |
Name: |
Xxxxxxx Xxxxx | |
Title: |
Senior Vice President |
Signature Page to Patent Security Agreement
Schedule I
Patents and Patent Intellectual Property Licenses
1. | Patents |
Pending U.S. Patent Applications:
Title |
Application No. |
Filed | ||
Configurable adaptive global traffic control and management | 10/259,497 | September 30, 2002 | ||
Managed Object Replication | 10/073,938 | February 14, 2002 | ||
Systems, methods and protocols for securing data in transit over networks | 10/190,495 | July 9, 2002 | ||
Integrity Monitoring System and Data Visualization Tool for Viewing Data Generated Thereby | 10/768,738 | February 2, 2004 | ||
Event monitoring system and method | 10/318,025 | December 13, 2002 | ||
Product toolkit system and method | 10/315,214 | December 10, 2002 | ||
Real-time streaming media measurement system and method | 10/174,481 | June 19, 2002 | ||
System and method for providing composite variance analysis for network operation | 10/743,732 | December 24, 2003 | ||
System and method for preventing comprehension of a printed document | 09/612,598 | July 2, 2003 | ||
Optimized network resource location | 09/930,975 | August 17, 2001 | ||
Internet content delivery network | 10/095,811 | March 13, 2002 | ||
Secured shared storage architecture | 10/173,512 | June 14, 2002 | ||
Methods and systems for shared storage virtualization | 10/192,182 | July 9, 0000 | ||
Xx-xxxxxx overlay routing for computer-based communication networks | 10/630,559 | July 30, 2003 | ||
Method and System for Optimizing Routing of Data Packets | 11/013,361 | December 17, 2004 | ||
Identifying and requesting data in network using identifiers which are based on contents of data (co-owned with Kinetech) | 09/987,723 | November 15, 2001 | ||
Identifying data in a data processing system (co-owned with Kinetech) | 10/742,972 | December 23, 2003 | ||
Content Delivery Network and Associated Methods and Mechanisms | 11/017,650 | December 22, 2004 | ||
Filed/Not Published | 10/430,375 | May 7, 2003 | ||
Filed/Not Published | 09/603,174 | June 23, 2000 |
Issued U.S. Patents:
Patent Name |
Registration No. |
Date Issued | ||
System and method for providing composite variance analysis for network operation | 6,708,137 | March 16, 2004 | ||
Optimized network resource location | 6,185,598 | February 6, 2001 | ||
Internet content delivery network | 6,654,807 | November 25, 2003 | ||
Document management system and method for business quality modeling | 6,154,753 | November 28, 0000 | ||
Xx-xxxxxx overlay routing for computer-based communication networks | 6,275,470 | August 14, 2001 | ||
On-demand overlay routing for computer-based communication networks | 6,473,405 | October 29, 2002 |
Signature Page to Patent Security Agreement
On-demand overlay routing for computer-based communication networks | 6,778,502 | August 17, 2004 | ||
Method and system for optimizing routing of data packets | 6,130,890 | October 10, 2000 | ||
Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers (co-owned with Kinetech) | 5,978,791 | November 2, 1999 | ||
Identifying and requesting data in network using identifiers which are based on contents of data (co-owned with Kinetech) | 6,415,280 | July 2, 2002 | ||
Service network incorporating geographically-remote hubs linked by high speed transmission paths | 6,044,405 | Xxxxx 00, 0000 | ||
Xxxxxx and system for optimizing routing of data packets | 6,870,851 | Xxxxx 00, 0000 | ||
Xxxxxx for cloning a source application with assignment of unique identifier to clone application | 6,088,516 | July 11, 2000 |
Foreign Patents or Applications:
Country / Entity |
App. No. |
Patent No. | ||
Korea | 10-2004-70046B | |||
China | 2821371.8 | |||
EPO | 0000000.7 | |||
Japan | 2003-531370 | |||
Japan | 2003-568495 | |||
Korea | 00-0000-0000000 | |||
Europe | 3739748.6 | |||
China | ||||
Canada | 2320261 | |||
Europe | 99906680.6 | |||
Hong Kong | 1103543.5 | |||
Europe | 128346.4 | EP (UK) 1143337 B1 | ||
Sweden | 128346.4 | |||
Germany | 699 09 839.4-08 | |||
Australia | 26529/99 | 000000 | ||
Xxxxx | 2000-530860 | |||
Norway | 20004010 | |||
Europe | 2782505.8 | |||
Europe | 0000000 | |||
Xxxxx | 2001-504633 | |||
Europe | 941508.4 | |||
Canada | 2,374,621 | |||
Taiwan | 88116516 | 000000 | ||
Xxxxx | 531073/1996 | |||
Europe | 96910762.2 | |||
Europe | 979234093 | |||
Canada | 2224664 | 2224664 | ||
Australia | 29221/97 | 000000 | ||
Xxxxx | 9-537246 | |||
New Zealand | 329369 |
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2. | Patent Intellectual Property Licenses |
Borrower, as successor in interest to Digital Island, Inc., has a license to use technology jointly owned with Kinetech, Inc. pursuant to that certain License Agreement, dated September 1, 2000, among Digital Island, Inc. and Kinetech, Inc.
Borrower has a license to use technology owned by Inkra Networks Corporation pursuant to that certain Technology Agreement, dated May 24, 2005, among Borrower and Inkra Networks Corporation.
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