EXHIBIT 10.3
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 December 30, 2003, is made by the grantors listed on
the signature page hereof (collectively, the "Grantors") 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, pursuant to that certain Loan Agreement dated as of the date
hereof (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Loan Agreement") among 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"), the Lenders have agreed to
make, upon the terms and conditions set forth therein, a single term loan (the
"Loan") to the Borrower; and
WHEREAS, as a condition precedent to the making of the Loan by the
Lenders under the Loan Agreement, the Grantors have entered into a Security
Agreement dated as of the date hereof (the "Security Agreement"), pursuant to
which such Grantors have 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 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 Agent, for itself and for the ratable security and 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"):
(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 such 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 any
Grantor is a party or any of the rights or interests of any 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 any 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 each Grantor under this IP Security Agreement
secures the payment and performance of all Obligations of such Grantor under the
Loan Documents 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 each of the Grantors of all 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.
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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 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. Each 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.
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IN WITNESS WHEREOF, each 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.
WORLD AIRWAYS, INC., as Grantor
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Chief Financial Officer
WORLD AIRWAYS PARTS COMPANY, LLC, as Grantor
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Manager
CITIBANK, N.A., as Collateral Agent under the
Loan Agreement
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
