INTELLECTUAL PROPERTY SECURITY
AGREEMENT
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 mark 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 sue 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 d
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