Intellectual Property Security Agreement - Comerica Bank-California and Priority Fulfillment Services Inc.
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of March
28, 2003 by and between COMERICA BANK-CALIFORNIA ("Bank") and PRIORITY
FULFILLMENT SERVICES, INC., a Delaware corporation (collectively, "Grantor").
RECITALS
A. Bank has agreed to make certain advances of money and to extend certain
financial accommodation to Grantor (the "Loans") in the amounts and manner set
forth in that certain Loan and Security Agreement by and between Bank, Grantor
and Priority Fulfillment Services of Canada, Inc. dated of even date herewith
(as the same may be amended, modified or supplemented from time to time, the
"Loan Agreement"; capitalized terms used herein are used as defined in the Loan
Agreement).
B. Bank is willing to make the Loans to Grantor, but only upon the
condition, among others, that Grantor shall grant to Bank a security interest in
certain Copyrights, Trademarks and Patents to secure the obligations of Grantor
under the Loan Agreement.
C. Pursuant to the terms of the Loan Agreement, Grantor has granted to Bank
a security interest in all of Grantor's right, title and interest, whether
presently existing or hereafter acquired, in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, as collateral security
for the prompt and complete payment when due of its obligations under the Loan
Agreement and all other agreements now existing or hereafter arising between
Grantor and Bank, Grantor hereby represents, warrants, covenants and agrees as
follows:
AGREEMENT
To secure its obligations under the Loan Agreement and under any other
agreement now existing or hereafter arising between Bank and Grantor, Grantor
grants and pledges to Bank a security interest in all of Grantor's right, title
and interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents and Trademarks listed on Schedules
A, B and C hereto), and including without limitation all proceeds thereof (such
as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to sue for past, present and future
infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part thereof.
This security interest is granted in conjunction with the security interest
granted to Bank under the Loan Agreement. The rights and remedies of Bank with
respect to the security interest granted hereby are in addition to those set
forth in the Loan Agreement and the other Loan Documents, and those which are
now or hereafter available to Bank as a matter of law or equity. Each right,
power and remedy of Bank provided for herein or in the Loan Agreement or any of
the Loan Documents, or now or hereafter existing at law or in equity shall be
cumulative and concurrent and shall be in addition to every right, power or
remedy provided for herein and the exercise by Bank of any one or more of the
rights, powers or remedies provided for in this Intellectual Property Security
Agreement, the Loan Agreement or any of the other Loan Documents, or now or
hereafter existing at law or in equity, shall not preclude the simultaneous or
later exercise by any person, including Bank, of any or all other rights, powers
or remedies.
Grantor represents and warrants that Exhibits A, B, and C attached hereto
set forth any and all intellectual property rights in connection to which
Grantor has registered or filed an application with either the United States
Patent and Trademark Office or the United States Copyright Office, as
applicable.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: PRIORITY FULFILLMENT SERVICES, INC.
500 N. Central Expressway, 5th Floor
Plano, Texas 75074 By:
Attn: Thomas J. Madden ---------------------------------
Title:
------------------------------
BANK:
-------------------------------
COMERICA BANK-CALIFORNIA
Address of Bank:
Comerica Bank-California By:
Commercial Loan Services Department ------------------------------
9920 S. La Cienega Blvd., 14th Floor Title:
Inglewood, CA 90301 ------------------------------
Attn: Loan Documentation
<PAGE>
EXHIBIT A
Copyrights
<Table>
<Caption>
Registration Registration
Number Date
------------ ------------
Description
-----------
<S> <C> <C>
NONE
</Table>
<PAGE>
EXHIBIT B
Patents
<Table>
<Caption>
Registration/ Registration/
Application Application
Description Number Date
----------- ------------ -------------
<S> <C> <C>
NONE
</Table>
<PAGE>
EXHIBIT C
Trademarks
<Table>
<Caption>
REGISTRATIONS
MARK REGISTRATION NUMBER DATE REGISTERED
---- ------------------- ---------------
<S> <C> <C>
PFSWEB 2,345,487 4/25/00
FROM THE CLICK 2,643,270 10/31/00
OF THE MOUSE TO
THE KNOCK AT THE
HOUSE
ENTENTEWEB 2,656,989 12/3/02
</Table>
<Table>
<Caption>
PENDING APPLICATIONS
MARK SERIAL NUMBER DATE FILED
---- ------------- ----------
<S> <C> <C>
THE EVOLUTION 76/271,303 6/14/01
OF OUTSOURCING
PFSWEB AND DESIGN 76/271,304 6/14/01
ENTENTEREPORT 76/405,570 5/10/02
ENTENTE SUITE 76/079,094 6/28/00
ENTENTEDIRECT 76/079,092 6/28/00
ENTENTEMESSAGE 76/079,093 6/28/00
</Table>