EXHIBIT 10.10
EXECUTION
COPY
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, restated,
supplemented or otherwise modified from time to time, the "IP Security
Agreement"), dated as of April 27, 2005 is made by the grantor listed on the
signature page hereof (the "Grantor") in favor of Citibank, N. A. as collateral
agent (the "Collateral Agent") for the Lenders (as defined below), the Board (as
defined below) and the Supplemental Guarantor (as defined in the Loan Agreement
referred to below) (the Lenders, the Board and Supplemental Guarantor are
hereinafter collectively referred to as the "Secured Parties"). Terms defined in
the Security Agreement (as defined below) and not otherwise defined herein have
the meaning as set forth in the Security Agreement.
WHEREAS, World Airways, Inc. (the "Borrower"), Govco Incorporated,
as Primary Tranche A Lender, Citibank, N.A. as Alternate Tranche A Lender,
Citicorp USA, Inc. as Tranche B Lender (together with Govco Incorporated, the
"Lenders"), Citicorp North America, Inc., as Govco Administrative Agent, Phoenix
American Financial Services, Inc., as Loan Administrator, Citibank, N.A. as the
Collateral Agent and Agent, and Air Transportation Stabilization Board (the
"Board") executed and delivered that certain Loan Agreement dated December 30,
2003, as amended by that certain Amendment No. 1 and Waiver to Loan Agreement of
even date herewith by and among the Borrower, Parent, the Grantor, World LLC,
the Lenders, Citicorp North America, Inc., as Govco Administrative Agent,
Phoenix American Financial Services, Inc., as Loan Administrator, Citibank, N.A.
as the Collateral Agent and Agent, and the Board (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Loan Agreement") pursuant to which the Lenders made a loan (the "Loan") to the
Borrower in the amount of $30,000,000; and
WHEREAS, in connection with the Loan Agreement, the Grantor has
entered into a Amended and Restated Security Agreement dated of even date
herewith (the "Security Agreement"), pursuant to which, among other things, the
Grantor has granted to the Collateral Agent, for the ratable security and
benefit of the Secured Parties, a security interest in the property described
therein, including certain intellectual property of the Grantor, and has 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, the Grantor agrees as follows:
Section 1. Grant of Security. The Grantor hereby grants to the
Collateral Agent, for itself and for the ratable security and benefit of the
Secured Parties, a security interest in all of the Grantor's right, title and
interest in and to the following (the "Collateral"):
(a) the patents and patent applications set forth in Schedule A
hereto;
(b) 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;
(c) the copyright registrations and applications and exclusive
copyright licenses set forth in Schedule C hereto;
(d) 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;
(e) all rights corresponding to the foregoing throughout the world,
and all other rights of any kind whatsoever of the Grantor accruing thereunder
or pertaining thereto;
(f) 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
(g) any and all Proceeds of any and all of the foregoing Collateral
or arising from any of the foregoing.
Anything herein to the contrary notwithstanding, in no event shall
the security interest granted under this Section 1 attach to any (i) Excluded
Assets or (ii) lease, license, contract, property rights or agreement to which
the Grantor is a party or any of the rights or interests of the Grantor
thereunder if and for so long as the grant of such security interest shall
constitute or result in (x) the abandonment, invalidation, or unenforceability
of any material right, title or interest of the Grantor therein or (y) in a
breach or termination pursuant to the terms of, or a default under, any such
lease, license, contract, property rights or agreement (other than to the extent
that any such term would be rendered ineffective pursuant to Section 9-406,
9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of
any relevant jurisdiction or any other applicable law (including the Bankruptcy
Code) or principles of equity); provided, however, that such security interest
shall attach immediately at such time as the condition causing such abandonment,
invalidation or unenforceability shall be remedied and, to the extent severable,
shall attach immediately to any portion of such lease, license, contract,
property rights or agreement that does not result in any of the consequences
specified in (x) or (y) above.
Section 2. Security for Secured Obligations. The grant of a security
interest in the Collateral by the Grantor under this IP Security Agreement
secures the payment and performance of all Obligations including, without
limitation, payment of the principal of, interest on, and all other amounts due
with respect to, the Loan, and the performance and observance by the Grantor of
all of the agreements, covenants and provisions contained in the Security
Agreement, in the Loan Agreement and in the other Loan Documents, and the
payment of any and all amounts from time to time owing under the Security
Agreement, the Loan Agreement and the other Loan Documents.
-2-
Section 3. Recordation. The 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 Loan Agreement
and the Security Agreement. The Grantor does hereby acknowledge and confirm that
the grant of the security interest hereunder to, and the rights and remedies of,
the Collateral Agent with respect to the Collateral are more fully set forth in
the Loan Agreement and 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.
[Remainder of this page intentionally left blank.]
-3-
IN WITNESS WHEREOF, the 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.
NORTH AMERICAN AIRLINES, INC., as
Grantor
By: /s/
---------------------------------
Name:
Title:
CITIBANK, N.A., as Collateral Agent
under the Loan Agreement
By: /s/
---------------------------------
Name:
Title:
SCHEDULE A
PATENTS
None.
SCHEDULE B
TRADEMARKS
CASE APPLICATION REGISTRATION REGISTRATION
NUMBER COUNTRY TRADEMARK STATUS No. FILING DATE NUMBER DATE
---------- ------------------ ----------- --------- ------------ ----------- ------------ ------------
00000-0000 Xxxxx Xxxx NAA Published 4879-2004 05-Jul-2004
00000-0000 Xxxxx Xxxx North Pending 03-Aug-2004
American
Airlines
00000-0000 Xxxxx Xxxx North Pending 03-Aug-2004
American
& Design
85440-0018 Dominican Republic North Registere 2004-57419 16-Jul-2004 143673 15-Sep-2004
American d
Airlines
85440-0026 Dominican Republic North Registere 2004-59513 22-Jul-2004 143882 30-Sep-2004
American d
Airlines
& Design
(Flag)
85440-0013 Guyana NAA Pending 07-Oct-2004
85440-0015 Guyana North Pending 07-Oct-2004
American
Airlines
85440-0021 Guyana North Pending 07-Oct-2004
American
Airlines
& Design
85440-0025 Guyana North Pending 07-Oct-2004
American
Airlines
&Design
(Flag)
00000-0000 Xxxxxx NAA Registere 0668070 22-Jul-2004 856013 25-Oct-2004
d
00000-0000 Xxxxxx North Pending 0668072 22-Jul-2004
American
Airlines
00000-0000 Xxxxxx North Pending 0668068 22-Jul-2004
American
Airlines&
Design
00000-0000 Xxxxxx North Pending 0668066 22-Jul-2004
American
Airlines&
Design
(Flag)
00000-0000 Xxxxxx Xxxxxx North Pending 76/549,665 03-Oct-2003
American
Airlines
00000-0000 Xxxxxx Xxxxxx North Pending 76/549,666 03-Oct-2003
American
Airlines&
Design
(Wings)
00000-0000 Xxxxxx Xxxxxx North Pending 76/549,667 03-Oct-2003
American
Airlines
& Design
(Flag)
00000-0000 Xxxxxx Xxxxxx NAA Pending 78/440,203 23-Jun-2004
00000-0000 Xxxxxx Xxxxxx America's Pending 78/539,971 30-Dec-2004
Greatest
Little
Airline
SCHEDULE C
COPYRIGHTS
None.
