EX-10.5 6 dex105.htm PATENT SECURITY AGREEMENT Patent Security Agreement

Exhibit 10.5

 

PATENT SECURITY AGREEMENT

 

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 WELLS 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/ Jeffrey H. Von Deylen

Name:

 

Jeffrey H. Von Deylen

Title:

  Executive Vice President and Chief Financial Officer
ACCEPTED AND ACKNOWLEDGED BY:

WELLS FARGO FOOTHILL, INC., as Agent

By:

 

/s/ Phyliss Hasen

Name:

 

Phyliss Hasen

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, 2002
On-demand 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, 2000
On-demand 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    March 28, 2000
Method and system for optimizing routing of data packets    6,870,851    March 22, 2005
Method 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    2799672.7     
Japan    2003-531370     
Japan    2003-568495     
Korea    10-2004-7012607     
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    763539
Japan    2000-530860     
Norway    20004010     
Europe    2782505.8     
Europe    2752239     
Japan    2001-504633     
Europe    941508.4     
Canada    2,374,621     
Taiwan    88116516    133064
Japan    531073/1996     
Europe    96910762.2     
Europe    979234093     
Canada    2224664    2224664
Australia    29221/97    736773
Japan    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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