exv10w9






Exhibit 10.9




TRADEMARK SECURITY AGREEMENT




          This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made as of
this 12th day of March, 2010, among Grantors listed on the signature pages hereof (collectively,
jointly and severally, “Grantors” and each individually “Grantor”), and SUNTRUST
BANK, in its capacity as collateral agent for the Secured Parties (together with its successors,
“Collateral Agent”).




W I T N E S S E T H:




          WHEREAS, pursuant to that certain Credit Agreement, dated as of the date hereof (as amended,
restated, supplemented, Refinanced, in whole or in part, replaced or otherwise modified from time
to time, the “Credit Agreement”), by and among Zayo Group, LLC, a Delaware limited
liability company (the “Administrative Borrower”), Zayo Capital, Inc., a Delaware
corporation (“Zayo Capital”; and together with the Administrative Borrower, each,
individually a “Borrower” and, collectively, the “Borrowers”), the Persons party
thereto from time to time as Guarantors (the “Guarantors”), the financial institutions
party thereto as lenders (the “Lenders”), SunTrust Bank, as the Issuing Bank, SunTrust
Bank, as the administrative agent for the Lenders (the “Administrative Agent”), and
SunTrust Bank, as Collateral Agent, the Lender Group is willing to make certain financial
accommodations available to the Borrower from time to time pursuant to the terms and conditions
thereof;




          WHEREAS, pursuant to that certain Indenture, dated as of the date hereof (as amended,
restated, supplemented, Refinanced, in whole or in part, replaced or otherwise modified from time
to time, the “Indenture”), by and among the Borrower, the Guarantors and The Bank of New
York Mellon Trust Company, N.A. , as indenture trustee for the holders of the Senior Note
Indebtedness (the “Trustee”; together with the Lender Group, Collateral Agent and the
holders from time to time of the Senior Note Indebtedness, and any Additional Loan and Notes
Secured Parties (as defined in the Intercreditor Agreement), the “Secured Parties”), the
Borrowers issued or propose to issue their 10.25% Senior Secured Notes due 2017 in the original
principal amount of $250,000,000;




          WHEREAS, the Secured Parties are willing to make the financial accommodations to the Borrower
as provided for in the Credit Agreement and the Indenture, but only upon the condition, among
others, that Grantors shall have executed and delivered to Collateral Agent, for the benefit of the
Secured Parties, that certain Security Agreement, dated as of March 12, 2010, (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the “Security Agreement”); and




          WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Collateral Agent, for the benefit of the Secured parties, this Trademark 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, Grantors hereby agree as follows:







 









 








     1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Security Agreement or, if not defined therein, in the Credit
Agreement.



     2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor hereby grants to
Collateral Agent, for the benefit of the Secured Parties, 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 “Trademark
Collateral”):



          (a) all of its Trademarks (other than any intent-to-use United States Trademark application
for which an amendment to allege use or statement of use has not been filed and accepted by the
United States Patent and Trademark Office) and Trademark Intellectual Property Licenses to which it
is a party including those referred to on Schedule I hereto;




          (b) all goodwill, trade secrets, proprietary or confidential information, technical
information, procedures, formulae, quality control standards, designs, operating and training
manuals, customer lists, and other General Intangibles with respect to the foregoing;




          (c) all reissues, continuations or extensions of the foregoing;




          (d) all goodwill of the business connected with the use of, and symbolized by, each Trademark
and each Trademark Intellectual Property License; and




          (e) all proceeds of the foregoing, including any claim by such Grantor against third parties
for past, present or future (i) infringement or dilution of any Trademark or any Trademark licensed
under any Intellectual Property License or (ii) injury to the goodwill associated with any
Trademark or any Trademark licensed under any Intellectual Property License.




     3. SECURITY FOR OBLIGATIONS. This Trademark Security Agreement and the Security
Interest created hereby secures the payment and performance of all the Secured Obligations, whether
now existing or arising hereafter. Without limiting the generality of the foregoing, this
Trademark Security Agreement secures the payment of all amounts which constitute part of the
Obligations and the Senior Note Indebtedness and would be owed by Grantors, or any of them, to
Collateral Agent, the Secured Parties, or any of them, whether or not they are unenforceable or not
allowable due to the existence of an Insolvency Proceeding involving any Grantor.



     4. SECURITY AGREEMENT. The security interests granted pursuant to this Trademark
Security Agreement are granted in conjunction with the security interests granted to Collateral
Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement. Each Grantor
hereby acknowledges and affirms that the rights and remedies of Collateral Agent with respect to
the security interest in the Trademark 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.



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     5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new
trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto.
Grantors shall give prompt notice in writing to Collateral Agent with respect to any such new
trademarks or renewal or extension of any trademark registration. Without limiting Grantors’
obligations under this Section 5, Grantors hereby authorize Collateral Agent unilaterally
to modify this Agreement by amending Schedule I to include any such new trademark rights of
Grantors. Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement
or amend Schedule I shall in any way affect, invalidate or detract from Collateral Agent’s
continuing security interest in all Collateral, whether or not listed on Schedule I.



     6. COUNTERPARTS. This Trademark 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 Trademark Security
Agreement, any other Loan Document or any other Senior Note 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 other electronic transmission shall be deemed an original signature hereto.



     7. CONSTRUCTION. Unless the context of this Trademark Security Agreement, any other
Loan Document or any other Senior Note Document clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural, the terms “includes”
and “including” are not limiting, and the term “or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,”
“hereunder,” and similar terms in this Trademark Security Agreement refer to this Trademark
Security Agreement as a whole and not to any particular provision of this Trademark Security
Agreement. Section, subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Trademark Security Agreement, in any
other Loan Document, or in any other Senior Note Document to any agreement, instrument, or document
shall include all alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject
to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to
the satisfaction or repayment in full of the Obligations and the Senior Note Indebtedness shall
mean the repayment in full in cash (or cash collateralization in accordance with the terms hereof)
of all Obligations and Senior Note Indebtedness other than unasserted contingent indemnification
Obligations and Senior Note Indebtedness. Any reference herein to any Person shall be construed to
include such Person’s successors and assigns. Any requirement of a writing contained herein, in
any other Loan Document or in any other Senior Note Document shall be satisfied by the transmission
of a Record and any Record so transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.



[remainder of page left blank intentionally]



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          IN WITNESS WHEREOF, each Grantor has caused this Trademark Security Agreement to be executed
and delivered by its duly authorized officer as of the date first set forth above.




	 	 	 	 	 
	GRANTORS:                                                 	ZAYO GROUP, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	ZAYO BANDWIDTH TENNESSEE, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	ZAYO ENTERPRISE NETWORKS, LLC

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	ZAYO COLOCATION, INC.

 	 
	 	By:  	/s/ Ken desGarennes
 	 
	 	 	Name:  	Ken desGarennes 	 
	 	 	Title:  	Chief Financial Officer 	 




Trademark
Security Agreement




 









 






	 	 	 	 	 



	 	 	 	 	 
	ACCEPTED AND ACKNOWLEDGED BY:                                   	SUNTRUST BANK, as Collateral Agent

 	 
	 	By:  	/s/ Horace J. Zona III
 	 
	 	 	Name:  	Horace J. Zona III 	 
	 	 	Title:  	Managing Director 	 
	 



Trademark
Security Agreement




 











 





Schedule 1




Trademark Registrations/Applications, Trademark Licenses



U.S. Trademarks:




	 	 	 	 	 	 	 
	 	 	 	 	Application Serial	 	Registration Number/
	Registered Owner	 	Trademark Description	 	Number/Filing Date	 	Registration Date
	Zayo Group, LLC

	 	ZAYO BANDWIDTH
	 	77245166
August 2, 2007
	 	3500859
September 16, 2008
	 
	 	 	 	 	 	 
	Zayo Group, LLC

	 	ZAYO
	 	77244680
August 1, 2007
	 	3500857
September 16, 2008
	 
	 	 	 	 	 	 
	Zayo Group, LLC

	 	ZCOLO
	 	77825058
September 11, 2009
	 	Application Still Pending
	 
	 	 	 	 	 	 
	Zayo Bandwidth 

Tennessee, LLC

	 	MEMPHIS NETWORX & Design
	 	75873249
December 17, 1999
	 	2572278
May 21, 2002
	 
	 	 	 	 	 	 
	Zayo Bandwidth 

Tennessee, LLC

(formerly known as 

Memphis Networx, 

LLC)*

	 	MEMPHIS NETWORX THE

BACKBONE OF THE CITY &

Design
	 	76537187
August 4, 2003
	 	2878837
August 31, 2004
	 
	 	 	 	 	 	 
	Zayo Bandwidth 

Tennessee, LLC

	 	MEMPHIS NETWORX
	 	75873248
December 17, 1999
	 	2545349
March 5, 2002
	 
	 	 	 	 	 	 
	Zayo Enterprise 

Networks, LLC

(formerly known as 

VoicePipe 

Communications, 

LLC)*

	 	VOICEPIPE
	 	78202250
January 10, 2003
	 	2853563
June 15, 2004
	 
	 	 	 	 	 	 
	Zayo Colocation,
Inc. (formerly
known as FiberNet
Telecom Group,
Inc.)*

	 	
	 	78693888
August 16, 2005
	 	3395986
March 11, 2008
	 
	 	 	 	 	 	 
	Zayo Colocation,
Inc. (formerly
known as FiberNet
Telecom Group,
Inc.)*

	 	
	 	77044317
November 15, 2006
	 	3361370
January 1, 2008






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Application Serial	 	Registration Number/
	Registered Owner	 	Trademark Description	 	Number/Filing Date	 	Registration Date
	Zayo Colocation, Inc.
(formerly known as
FiberNet Telecom
Group, Inc.)*

	 	
	 	77037993
November 6, 2006
	 	3350844
December 11, 2007
	 
	 	 	 	 	 	 
	Zayo Colocation, Inc.
(formerly known as
FiberNet Telecom
Group, Inc.)*

	 	
	 	78750871
November 9, 2005
	 	3198383
January 16, 2007








 




			
	*	 	Per schedule 6.20 to the Credit Agreement, the applicable Borrower Party shall update
ownership information of record for this Trademark.




Foreign Trademarks:


None issued or pending.



Trademark Licenses: 


None issued or pending.



Trade Names:





	 	1.	 	Zayo Group, LLC was formerly CII Holdco, Inc. Its name was changed to Zayo
Bandwidth, Inc. on August 13, 2007 and it was converted from Zayo Bandwidth, Inc. and
its name changed to Zayo Group, LLC on February 15, 2008.
	 
	 	2.	 	Zayo Enterprise Networks, LLC was formerly Zayo Managed Services, LLC and
VoicePipe Communications, LLC. VoicePipe Communications, LLC was formerly VoicePipe
Communications, Inc. and was originally a division of ICG Communications, Inc.
	 
	 	3.	 	Zayo Bandwidth Tennessee, LLC was formerly Memphis Networx, LLC (prior to
August 22, 2007)
	 
	 	4.	 	Zayo Colocation, Inc. was formerly known as FiberNet Telecom Group, Inc.
(prior to January 29, 2010)




Common Law Trademarks:


None.



Trademarks Not Currently in Use:


None.





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