INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit
10.3
This
INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of September 14, 2007 (this
“Agreement”), among INTERNAP NETWORK SERVICES
CORPORATION, a Delaware corporation (the “Borrower”), each
Subsidiary (such term and the other capitalized terms used and not defined
in
this Agreement shall have the meanings provided for in the Security Agreement
defined herein) of the Borrower identified on the signature pages hereof (the
Borrower and such Subsidiaries, each a “Grantor” and collectively, the
“Grantors”), and BANK OF AMERICA, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for
the Secured Parties.
W
I T N E S S E T H:
WHEREAS,
pursuant to that certain Pledge and Security Agreement dated as of September
14,
2007 (as such agreement may be amended, amended and restated, supplemented
or
otherwise modified from time to time, the “Security Agreement”) among the
Grantors and the Administrative Agent, and in order to obtain the benefits
referred to therein, each Grantor has granted to the Administrative Agent a
security interest in substantially all of such Grantor’s property, including,
without limitation, the Collateral referred to in Section 1 below;
and
WHEREAS,
pursuant to the Security Agreement, each Grantor has agreed to execute this
Agreement in respect of its Collateral for recording with the U.S. Patent and
Trademark Office, the United States Copyright Office and any other office in
which a security interest in the Collateral may be recorded under the laws
of
any other applicable jurisdiction.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, each Grantor and the Administrative Agent
agree as follows:
1. Grant
of Security.
Each
Grantor hereby grants to the Administrative Agent for the ratable benefit of
the
Secured Parties a security interest in and to all of such Grantor’s right, title
and interest in and to the following (the “Collateral”):
(a) the
United States, international, and foreign patents, patent applications and
patent licenses set forth in Schedule A hereto opposite the name of such
Grantor, as Schedule A may be supplemented from time to time by
supplements to the Security Agreement and this Agreement which may be executed
and delivered by such Grantor to the Administrative Agent from time to time,
together with all reissues, divisions, continuations, continuations-in-part,
extensions and reexaminations thereof, and all rights therein provided by
international treaties or conventions (the “Patents”);
(b) the
United States and foreign trademark and service xxxx registrations,
applications, and licenses set forth in Schedule B hereto opposite the
name of such Grantor, as Schedule B may be supplemented from time to time
by supplements to the Security Agreement and this Agreement which may be
executed and delivered by such Grantor to the Administrative Agent from time
to
time (the “Trademarks”);
(c) the
United States and foreign copyright registrations and applications and copyright
licenses set forth in Schedule C hereto opposite the name of such
Grantor, as Schedule C may be supplemented from time to time by
supplements to the Security Agreement and this Agreement which may be executed
and delivered by such Grantor to the Administrative Agent from time to time
(the
“Copyrights”);
(d)
(e) any
and
all claims for damages for past, present and future infringement,
misappropriation or breach with respect to the Patents, Trademarks or
Copyrights, with the right, but not the obligation, to xxx for and collect,
or
otherwise recover, such damages; and
(f) any
and
all Proceeds of the foregoing.
2. Security
for Obligations.
The
grant of a security interest in the Collateral by each Grantor under this
Agreement secures the payment of all Obligations of such Grantor now or
hereafter existing under or in respect of the Loan 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.
3. Recordation.
Each
Grantor authorizes and requests that the Register of Copyrights, the
Commissioner of Patents and Trademarks and any other applicable government
officer record this Agreement.
4. Execution
in Counterparts.
This
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. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or electronic
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement
5. Grants,
Rights and Remedies.
This
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 Administrative Agent 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.
6. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Georgia.
[Signatures
follow.]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly
authorized officers as of the day and year first above written.
INTERNAP
NETWORK SERVICES
CORPORATION
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President and Chief
Financial Officer
PLAYSTREAM,
INC.
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title:
Treasurer
VITALSTREAM,
INC.
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title:
Treasurer
VITALSTREAM
ADVERTISING SERVICES, INC.
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title:
Treasurer
VITALSTREAM
HOLDINGS, INC.
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title:
Treasurer
BANK
OF AMERICA, N.A.,
as
Administrative Agent
By:
/s/
Xxx Xxxxxxx
Name:
Xxx Xxxxxxx
Title:
Senior Vice
President
STATE
OF
GEORGIA
COUNTY
OF
XXXX
I,
Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxxx personally came before me this day and acknowledged that
(s)he is Vice President and Chief Financial Officer of Internap Network Services
Corporation, a Delaware corporation, and acknowledged, on behalf of Internap
Network Services Corporation, the due execution of the foregoing
instrument.
Witness
my hand and official seal, this the 14th day of September, 2007.
(Official
Seal)
|
/s/
Xxxxxxx Xxxxxx
|
|||
| Notary Public |
My
Commission expires 0-00-00
XXXXX
XX
XXXXXXX
XXXXXX
XX
XXXX
I,
Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxxx personally came before me this day and acknowledged that
(s)he is Treasurer of PlayStream, Inc., a Nevada corporation, and acknowledged,
on behalf of PlayStream, Inc., the due execution of the foregoing
instrument.
Witness
my hand and official seal, this the 14th day of September, 2007.
(Official
Seal)
|
/s/
Xxxxxxx Xxxxxx
|
|||
| Notary Public |
My
Commission expires 0-00-00
XXXXX
XX
XXXXXXX
XXXXXX
XX
XXXX
I,
Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxxx personally came before me this day and acknowledged that
(s)he is Treasurer of VitalStream, Inc., a Delaware corporation, and
acknowledged, on behalf of VitalStream, Inc., the due execution of the foregoing
instrument.
Witness
my hand and official seal, this the 14th day of September, 2007.
(Official
Seal)
|
/s/
Xxxxxxx Xxxxxx
|
|||
| Notary Public |
My
Commission expires 0-00-00
XXXXX
XX
XXXXXXX
XXXXXX
XX
XXXX
I,
Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxxx personally came before me this day and acknowledged that
(s)he is Treasurer of VitalStream Advertising Services, Inc., a Nevada
corporation, and acknowledged, on behalf of VitalStream Advertising Services,
Inc., the due execution of the foregoing instrument.
Witness
my hand and official seal, this the 14th day of September, 2007.
(Official
Seal)
|
/s/
Xxxxxxx Xxxxxx
|
|||
| Notary Public |
My
Commission expires 0-00-00
XXXXX
XX
XXXXXXX
XXXXXX
XX
XXXX
I,
Xxxxxxx Xxxxxx, a Notary Public for said County and State, do hereby certify
that Xxxxx X. Xxxxxx personally came before me this day and acknowledged that
(s)he is Treasurer of VitalStream Holdings, Inc., a Nevada corporation, and
acknowledged, on behalf of VitalStream Holdings, Inc., the due execution of
the
foregoing instrument.
Witness
my hand and official seal, this the 14th day of September, 2007.
(Official
Seal)
|
/s/
Xxxxxxx Xxxxxx
|
|||
| Notary Public |
My
Commission expires 2-20-10
