GRANT OF SECURITY INTEREST IN TRADEMARKS RIGHTS
Exhibit 10.3
EXECUTION VERSION
GRANT OF
SECURITY INTEREST IN TRADEMARKS RIGHTS
This GRANT OF SECURITY INTEREST IN TRADEMARKS RIGHTS (“Agreement”), effective as of July 13, 2010 is made by (i) Postmedia Network Inc., a Canadian corporation, located at 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0 (each, a “Grantor” and collectively, the “Grantors”), in favour of JPMorgan Chase Bank, N.A, a national banking association located at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx, Loan and Agency Services Group, as Collateral Agent (the “Agent”) for the banks and other financial institutions or entities (the “Lenders”) parties to the Term Loan Credit Agreement, dated as of July 13, 2010 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Postmedia Network Inc., a Canada corporation (the “Borrower”), Postmedia Network Canada Corp., a Canada corporation (“Holdings”), each of the direct and indirect Subsidiaries signatory thereto, the Lenders, and JPMorgan Chase Bank, N.A. Administrative Agent and Collateral Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein; and
WHEREAS, in connection with the Credit Agreement, the Grantor has executed and delivered a Pledge and Security Agreement, dated as of July 13, 2010, in favour of the Agent (together with all amendments and modifications, if any, from time to time thereafter made thereto, the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, the Grantor granted, pledged, mortgaged, charged, assigned and transferred to the Agent, on behalf of and for the ratable benefit of the Secured Parties a first priority, continuing, specific and fixed security interest in all of its Intellectual Property, including the Trademarks of such Grantor; and
WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this Security Agreement;
NOW THEREFORE, for other good and valuable consideration, the receipt of which is hereby acknowledged, and in order to induce the Lenders to make extensions of credit to the Borrower pursuant to the Credit Agreement, the Grantor agrees, for the benefit of the Secured Parties, as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Agreement, including its preamble and recitals have the meanings provided or provided by reference in the Credit Agreement and the Security Agreement, as applicable. In addition, the following term shall have the following meaning:
“Trademarks” means (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, brands, trade dress, uniform resource locators,
domain names, tag lines, designs, graphics, trade styles, service marks, logos and other source or business identifiers, and all goodwill connected with the use of and symbolized thereby, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office, with the Canadian Intellectual Property Office or in any similar office or agency of the United States, any State thereof, in Canada or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto, including, without limitation, any of the foregoing referred to in Schedule 1, and (ii) the right to obtain all renewals thereof.
SECTION 2. Grant of Security Interest. The Grantor hereby grants, pledges, mortgages, charges, assigns and transfers to the Agent, for the ratable benefit of the Secured Parties, a security interest in all of the Grantor’s right, title and interest in the Trademarks of such Grantor (including, without limitation, those items listed on Schedule A hereto) (collectively, the “Trademark Collateral”); provided, however, that notwithstanding any of the other provisions set forth in this Section 2, this Agreement shall not constitute a grant of a security interest in any property to the extent that such grant of a security interest is prohibited by any requirements of law of a Governmental Authority, requires a consent not obtained of any Governmental Authority pursuant to such requirement of law or is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such requirement of law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable law; provided, further, that notwithstanding anything herein to the contrary, in no event shall the Trademark Collateral include or the security interest granted under this Section 2 attach to (i) any rights or property acquired under or in connection with a lease, license, contract, property right or agreement (or any of its rights or interests thereunder) solely if and to the extent that the grant of the security interest shall, after giving effect to the PPSA or any other applicable law, constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor therein or (B) a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property right or agreement, provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Trademark Collateral shall include, and the Grantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect; provided further that the proceeds therefrom shall not be excluded from the definition of Trademark Collateral to the extent that the assignment of such proceeds is not prohibited, and (ii) any applications for Trademarks filed in the United States Patent and Trademark Office on the basis of any Grantor’s intent to use such xxxx and for which a form evidencing use of the xxxx has not yet been filed with the United States Patent and Trademark Office, to the extent that granting a security interest in such Trademark application prior to such filing would adversely affect the enforceability or validity of such Trademark application.
SECTION 3. Purpose. This Agreement has been executed and delivered by each Grantor for the purpose of recording the grant of security interest herein with the United States Patent and Trademark Office and the Canadian Intellectual Property Office. The security interest granted hereby has been granted to the Agent for the benefit of the Secured Parties in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. The Security Agreement (and all rights and remedies of the Secured Parties thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4. Acknowledgment. The Grantor does hereby further acknowledge and affirm that the rights and remedies of the Secured Parties with respect to the security interest in the Collateral granted hereby are more fully set forth in the Credit Agreement and the Security Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein, and that the rights and remedies of the Collateral Agent in respect of the Collateral may be restricted, as against the parties thereto, by the terms of the Intercreditor Agreements. In the event of any conflict between the terms of this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 5. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
SECTION 6. Counterparts. This Security Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.
SECTION 7. The Intercreditor Agreement. Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to this Security Agreement or any other Loan Document and the exercise of any right or remedy by the Collateral Agent or any Secured Party hereunder are subject to the provisions of the Intercreditor Agreements. In the event of any conflict between the terms of the Intercreditor Agreements and this Security Agreement with respect to any right or remedy of the Secured Parties relating to the Collateral, the terms of the Intercreditor Agreements shall govern and control.
Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, all rights and remedies of the Collateral Agent (and the Secured Parties) shall be subject to the terms of the ABL Intercreditor Agreement, and until the Discharge of ABL Obligations (as defined in the ABL Intercreditor Agreement), (i) no Grantor shall be required hereunder to take any action with respect to ABL Priority Collateral that is inconsistent with such Grantor’s obligations under the ABL Documents and (ii) any obligation of any Grantor hereunder with respect to the delivery or control of any ABL Priority Collateral, the notation of any lien on any certificate of title, xxxx of lading or other document, the giving of any notice to any bailee or other Person, the provision of voting rights or the obtaining of any consent of any Person, in each case, with respect to ABL Priority Collateral, shall be deemed to be satisfied if the Grantor complies with the requirements of the similar provision of the ABL Credit Agreement. Until the Discharge of ABL Obligations, the Collateral Agent may not require any Grantor to take any action with respect to the creation, perfection or priority of its security interest in any ABL Priority Collateral, whether pursuant to the express terms hereof or pursuant to the further assurances provisions hereof, unless the ABL Collateral Agent shall have required such Grantor to take similar action pursuant to the terms of the ABL Intercreditor Agreement, and delivery of any ABL Priority Collateral to the ABL Collateral Agent pursuant to the ABL Documents and the ABL Intercreditor Agreement shall satisfy any delivery requirement hereunder. The Collateral Agent agrees that no amendment to any Intercreditor Agreement that
directly affects the rights, interests, liabilities or privileges of any Grantor hereunder shall be effective, solely as against such Grantor, unless consented to in writing by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the day and year first above written.
| POSTMEDIA NETWORK INC. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Senior Vice President and General Counsel | |||
| JPMORGAN CHASE BANK, N.A., as Collateral Agent and Administrative Agent | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Title: |
Xxxxx X. Xxxxxx Executive Director | |
Schedule 1
Canadian Trademark Registrations and Applications
| Country |
Trademark |
Application Date |
Application Number |
Registration Date |
Registration Number |
Owner | ||||||
| Canada |
BURNABY SUN | March 20, 2008 | 1388315 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
CALGARY HERALD | June 22, 2001 | 1107134 | October 9, 2003 | 592075 | Postmedia Network Inc. | ||||||
| Canada |
CALGARY RUSHHOUR DESIGN | February 28, 2007 | 1337245 | March 19, 2010 | 762027 | Postmedia Network Inc. | ||||||
| Canada |
D & DESIGN | December 20, 2004 | 1241380 | March 10, 2009 | 736039 | Postmedia Network Inc. | ||||||
| Canada |
DOSE | December 20, 2004 | 1241384 | March 10, 2009 | 736040 | Postmedia Network Inc. | ||||||
| Canada |
DOSE & DESIGN | December 20, 2004 | 1241379 | March 10, 2009 | 736038 | Postmedia Network Inc. | ||||||
| Canada |
DRIVING | June 5, 2002 | 0000000 | November 16, 2006 | 677148 | Postmedia Network Inc. | ||||||
| Canada |
DRIVING | September 27, 2002 | 0000000 | October 17, 2006 | 675053 | Postmedia Network Inc. | ||||||
| Canada |
XXXXXXX.XX | February 17, 2006 | 0000000 | November 9, 2009 | 752522 | Postmedia Network Inc. | ||||||
| Canada |
XXXXXXX.XX & CAR DESIGN | February 17, 2006 | 0000000 | May 5, 2009 | 739484 | Postmedia Network Inc. | ||||||
| Canada |
EDMONTON JOURNAL | May 17, 2000 | 1059218 | July 9, 2003 | 584829 | Postmedia Network Inc. | ||||||
| Canada |
EDMONTON RUSHHOUR & DESIGN | February 28, 2007 | 1337246 | March 19, 2010 | 762029 | Postmedia Network Inc. | ||||||
| Canada |
FRASER VALLEY SUN | March 20, 2008 | 1388321 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
HARBOUR CITY STAR | November 15, 0000 | 0000000 | November 18, 1997 | 485684 | Postmedia Network Inc. | ||||||
| Canada |
HOUSEHUNTING. CA & DESIGN | August 30, 2007 | 1361838 | March 9, 2009 | 735941 | Postmedia Network Inc. | ||||||
| Canada |
INFOMART | March 9, 0000 | 0000000 | December 2, 1977 | 224484 | Postmedia Network Inc. | ||||||
| Canada |
INFOMART ONLINE | July 31, 0000 | 0000000 | February 15, 1991 | 380026 | Postmedia Network Inc. | ||||||
| Canada |
INFOMART ONLINE & DESIGN | June 12, 0000 | 0000000 | February 15, 1991 | 379991 | Postmedia Network Inc. | ||||||
| Canada |
MONTREAL RUSHHOUR | February 28, 2007 | 1337264 | March 22, 2010 | 762135 | Postmedia Network Inc. | ||||||
| Country |
Trademark |
Application Date |
Application Number |
Registration Date |
Registration Number |
Owner | ||||||
| Canada |
NORTH SHORE SUN | March 20, 2008 | 1388316 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA CITIZEN & DESIGN | July 31, 0000 | 0000000 | February 26, 2002 | 558482 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWACITIZEN & DESIGN (1) | July 31, 0000 | 0000000 | February 26, 2002 | 558481 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA CITIZEN (ON SCREEN DESIGN) & DESIGN | July 31, 0000 | 0000000 | February 24, 2000 | 523809 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA CITIZEN ONLINE & DESIGN | November 5, 0000 | 0000000 | November 7, 2000 | 536871 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA CITIZEN ONLINE & DESIGN | July 31, 1997 | 852490 | October 18, 1999 | 518073 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA CITIZEN ONLINE & MAPLE LEAF DESIGN | November 5, 0000 | 0000000 | October 5, 2000 | 534098 | Postmedia Network Inc. | ||||||
| Canada |
OTTAWA RUSHHOUR & DESIGN | November 17, 2006 | 1324620 | June 4, 2010 | 768823 | Postmedia Network Inc. | ||||||
| Canada |
POSTMEDIA NETWORK | June 25, 2010 | 1486433 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
RAISE A READER & DESIGN | April 1, 2003 | 1173213 | July 2, 2004 | 613992 | Postmedia Network Inc. | ||||||
| Canada |
RAISE A READER- LIRE C’EST GRANDIR & DESIGN | April 1, 2003 | 1173214 | June 30, 2004 | 613948 | Postmedia Network Inc. | ||||||
| Canada |
RAISE-A-READER | February 1, 2002 | 1129819 | November 12, 2003 | 594491 | Postmedia Network Inc. | ||||||
| Canada |
RAISE-A-READER DAY | February 1, 2002 | 1129820 | December 10, 2003 | 597055 | Postmedia Network Inc. | ||||||
| Canada |
RAISE-A-READER KIDS CLUB | February 1, 2002 | 1129821 | February 22, 05 | 633455 | Postmedia Network Inc. | ||||||
| Canada |
REACHCANADA | March 17, 1999 | 1008866 | February 1, 2001 | 540673 | Postmedia Network Inc. | ||||||
| Canada |
REACHCANADA & DESIGN | August 8, 2006 | 1312082 | March 19, 2008 | 709896 | Postmedia Network Inc. | ||||||
| Country |
Trademark |
Application Date |
Application Number |
Registration Date |
Registration Number |
Owner | ||||||
| Canada |
REGINA RUSHHOUR | February 28, 2007 | 1337257 | March 22, 2010 | 762160 | Postmedia Network Inc. | ||||||
| Canada |
RICHMOND SUN | March 20, 2008 | 1388314 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
RUSH HOUR | February 21, 2005 | 1247997 | April 2, 2009 | 737455 | Postmedia Network Inc. | ||||||
| Canada |
SASKATOON RUSHHOUR | February 28, 2007 | 1337262 | March 15, 2010 | 761678 | Postmedia Network Inc. | ||||||
| Canada |
SURREY SUN | March 20, 2008 | 1388322 | n/a | n/a | Postmedia Network Inc. | ||||||
| Canada |
THE DAILY COLONIST | August 7, 1979 | 442918 | August 29, 1980 | 249881 | Postmedia Network Inc. | ||||||
| Canada |
THE FLYER FORCE | May 18, 0000 | 0000000 | January 3, 1986 | 310010 | Postmedia Network Inc. | ||||||
| Canada |
THE NORTH ISLANDER | September 30, 2004 | 1232214 | May 24, 2006 | 664934 | Postmedia Network Inc. | ||||||
| Canada |
THE OTTAWA CITIZEN | April 2, 0000 | 0000000 | June 19, 1992 | 399443 | Postmedia Network Inc. | ||||||
| Canada |
THE PROVINCE | March 6, 0000 | 0000000 | February 12, 1993 | 408219 | Postmedia Network Inc. | ||||||
| Canada |
THE PROVINCE DESIGN | November 28, 0000 | 0000000 | September 25, 1998 | 501236 | Postmedia Network Inc. | ||||||
| Canada |
THE VANCOUVER SUN | March 6, 1992 | 700430 | March 8, 1996 | 454949 | Postmedia Network Inc. | ||||||
| Canada |
THE VANCOUVER SUN & DESIGN | August 22, 1997 | 854297 | October 27, 1998 | 503006 | Postmedia Network Inc. | ||||||
| Canada |
THE WINDSOR STAR & DESIGN | April 3, 1995 | 779381 | November 22, 1996 | 466196 | Postmedia Network Inc. | ||||||
| Canada |
TIMES COLONIST | March 11,1998 | 872040 | February 5, 2002 | 557462 | Postmedia Network Inc. | ||||||
| Canada |
VANCOUVER SUN | March 6, 0000 | 0000000 | March 8, 1996 | 454950 | Postmedia Network Inc. | ||||||
| Canada |
VICTORIA TIMES | August 7, 0000 | 0000000 | November 14, 1980 | 252486 | Postmedia Network Inc. | ||||||
| Canada |
WINDSOR RUSHHOUR | February 28, 2007 | 1337263 | March 24, 2010 | 762543 | Postmedia Network Inc. | ||||||
| Canada |
WORKING | February 9, 2009 | 1427244 | April 19, 2010 | 764420 | Postmedia Network Inc. | ||||||
| Canada |
WORKING | January 6, 2006 | 1285187 | September 22, 2009 | 748293 | Postmedia Network Inc. | ||||||
| Canada |
XXXXXXX.XXX | February 9, 2009 | 1427245 | April 21, 2010 | 764669 | Postmedia Network Inc. | ||||||
| Canada |
XXXXXXX.XXX | January 6, 2006 | 1285192 | October 26, 2009 | 751166 | Postmedia Network Inc. | ||||||
