SECOND LIEN INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit 10.3
SECOND LIEN INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Second Lien IP Security Agreement”)
dated November 16, 2010, 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 Second Lien Indenture referred to
below).
WHEREAS, Terremark Worldwide, Inc., a Delaware corporation (the “Company”) and the Grantors
have entered into an Indenture dated as of November 16, 2010 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Second Lien Indenture”), with The Bank
of New York Mellon Trust Company, N.A., as trustee, (the “Second Lien Trustee”) and the Guarantors
party thereto.
WHEREAS, the Company and the Grantors have entered into a Collateral Trust Agreement with the
Collateral Trustee, the Second Lien Trustee and the other parties party thereto (the “Collateral
Trust Agreement”). Terms defined in the Second Lien Indenture or the Collateral Trust Agreement
and not otherwise defined herein are used herein as defined in the Second Lien Indenture or
Collateral Trust Agreement, as the context may require.
WHEREAS, as a condition precedent to the entry into the Junior Lien Documents by the Junior
Lien Representatives and the other holders of Junior Lien Obligations, each Grantor has executed
and delivered that certain Second Lien Security Agreement dated November 16, 2010, made by the
Grantors to the Collateral Trustee (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Second Lien Security Agreement”).
WHEREAS, under the terms of the Second Lien Security Agreement, the Grantors have granted to
the Collateral Trustee, for the ratable benefit of the Secured Parties, a second priority security
interest in, among other property, certain intellectual property of the Grantors, and have agreed
as a condition thereof to execute this Second Lien 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 second priority 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 Second Lien IP Security Agreement secures the payment of
all Secured Obligations of such Grantor now or hereafter existing under or in respect of the Junior
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
Second Lien 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 Junior 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 Second Lien IP Security Agreement.
SECTION 4. Execution in Counterparts. This Second Lien 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 Second Lien IP Security
Agreement has been entered into in conjunction with the provisions of the Second Lien 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 Second Lien Security Agreement, the terms and provisions
of which are incorporated herein by reference as if fully set forth herein.
SECTION 6. Governing Law. This Second Lien 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).
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above written.
| TERREMARK WORLDWIDE, INC. TERREMARK NORTH AMERICA, INC. TERREMARK EUROPE, INC. TERRENAP DATA CENTERS, INC. PARK WEST TELECOMMUNICATIONS INVESTORS, INC. TECOTA SERVICES CORP. TECHNOLOGY CENTER OF THE AMERICAS, LLC TERREMARK FINANCIAL SERVICES, INC. TERREMARK FORTUNE HOUSE #1, INC. TERREMARK LATIN AMERICA, INC. TERREMARK MANAGEMENT SERVICES, INC. TERREMARK REALTY, INC. TERREMARK TECHNOLOGY CONTRACTORS, INC. TERREMARK TRADEMARK HOLDINGS, INC. TERRENAP SERVICES, INC. SPECTRUM TELECOMMUNICATIONS CORP. NAP OF THE CAPITAL REGION, LLC |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
Signature Page to the Second Lien Intellectual Property Security Agreement
| NAP OF THE CAPITAL REGION II, LLC NAP WEST, LLC NAP WEST II LLC TERREMARK PERU LLC |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Treasurer | |||
| TERREMARK DATAVAULTING LLC By its sole member: Terremark North America, Inc. |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| TERREMARK FEDERAL GROUP, INC. |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
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Address for notices for each Grantor: 0 X. Xxxxxxxx Xxxx. Xxxxx 0000 Xxxxx, XX 00000 |
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Signature Page to the Second Lien Intellectual Property Security Agreement
| ACCEPTED AND AGREED: U.S. BANK NATIONAL ASSOCIATION as Collateral Trustee |
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| By: | /s/ Xxxxxx X. Maple III | |||
| Name: | Xxxxxx X. Maple III | |||
| Title: | Vice President | |||
Signature Page to the Second Lien Intellectual Property Security Agreement
