Exhibit 10.69
THIS ASSIGNMENT is dated the 14th day of December 2001.
BETWEEN:
PRIMES DE LUXE INC., a corporation incorporated
under the laws of Canada and having an office at
000 Xxxx. Xxxxxx-Xxxxxxxx Xxxxxx 000, Xxxxxx,
Xxxxxx, GIM 3R9
(the "Assignor")
OF THE FIRST PART;
- and -
THE BANK OF NOVA SCOTIA, a corporation
incorporated under the laws of Canada and having
an office at 00 Xxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx, X0X 0X0
(the "Bank")
OF THE SECOND PART.
WHEREAS:
A. The Regal Greetings & Gifts Corporation ("RG&GC") has, is or is about to
become indebted to the Bank (the "Loan") pursuant to an Offer of
Finance dated December 5, 2001 (the "Commitment Letter");
B. The Assignor has agreed to grant or has granted a guarantee in favour of
the Bank a guarantee (the "Guarantee") of the obligations of RG&GC.
C. The Assignor has agreed to grant or has granted to the Bank security for
the guarantee, including INTER ALIA, a security interest in all of its
present and after acquired personal property pursuant to a general
security agreement (the "Security");
D. The Assignor is the exclusive owner of the right, title and interest of
the trade-marks, trade-xxxx registrations and trade-xxxx applications, as
more particularly described in Schedule "A" hereto (the "Trade-xxxx") and
the Assignor has the exclusive, uninhibited right to sell, transfer, use
and assign the Trade-xxxx;
E. As additional security for the Guarantee, the Assignor has agreed to
specifically assign to the Bank, at the option of the Bank and effective
upon the occurrence of an event of default under the Commitment Letter or
in the event RG&GC is deemed to be in default under the security given in
respect thereof or a default under the Security, all of the Assignor's
right, title and interest in and to the Trade-xxxx;
THEREFORE in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Assignor agrees as follows:
1. The preamble hereto forms an integral part hereof.
2. Upon an event of default occurring under the Commitment Letter or if
RG&GC is in default under the Security and upon the exercise by the Bank
of its option to cause this Assignment to become effective, the Assignor
does hereby transfer and assign to the Bank all of its right, title and
interest in and to the Trade-xxxx and applications or registrations
thereof, and all proceeds derived from the Trade-xxxx, including without
limitation, royalties, license fees, and all rights and claims of action
that may exist by reason of the infringement of the Trade-xxxx, together
with all goodwill symbolized by the Trade-xxxx.
3. This Assignment shall take effect upon the Bank notifying the Assignor
that it is in default under the
-2-
Commitment Letter or that RG&GC is in default under the Security and
that the Bank intends to exercise its option to cause this Assignment
to become effective.
4. The Assignor shall do all things and execute and deliver all documents
(including all assignments, affidavits, and other instruments, in a form
suitable for filing with all trade-xxxx offices where the Trade-xxxx is
registered and recorded) as may be requested by the Bank from time to
time and at any time, in order to give effect to this Assignment or to
perfect or record the bank's interest in the Trade-xxxx or to maintain
the registration or recording of the Trade-xxxx.
5. The Assignor represents and warrants as follows:
(a) the Assignor has sole, full and clear title to the Trade-xxxx in
Canada and in all other jurisdictions represented by the Assignor
to the Bank;
(b) the Assignor has not assigned the right to use the Trade-xxxx or
granted a license to use the Trade-xxxx to any other entity
(except as disclosed in Schedule "B" hereto and except for
licences to use the Trade-xxxx granted to customers in the
ordinary course of business) and is duly authorized and has the
right to grant this Assignment to the Bank;
(c) the Trade-xxxx is valid and duly registered in all jurisdictions
where it is utilized and all registrations and recordings of the
Trade-xxxx are valid and subsisting and in full force and effect
as of the date of this Assignment;
(d) the Trade-xxxx has not lapsed, been abandoned or dedicated to the
public, nor to the best of the knowledge of the Assignor, has the
Trade-xxxx been infringed by any other person;
(e) as of the date of this Assignment, neither the Assignor nor any of
its subsidiaries has any trade-xxxx registered or recorded in or
subject to pending applications for registration or recording in
Canada, the United States or elsewhere, other than those described
in Schedule "A" hereto; and
(f) the Assignor has no knowledge of any third party claims to the
Trade-xxxx.
6. The Assignor hereby irrevocably appoints The Bank or its agent, as the
case may be, with full power of substitution, to be the attorney of the
Assignor for and in the name of the Assignor, to do, make, sign, endorse
or execute under seal or otherwise all deeds, documents, transfers,
cheques, instruments, demands, assignments, assurances, consents, acts,
matters or things with the right to use the name of the Assignor whenever
or wherever it may be necessary or expedient. It is hereby intended that
the said power of attorney shall continue in the event of the subsequent
legal incapacity of the Assignor, if an individual.
7. Any notice hereunder shall be in writing and shall be effectively given
by the Bank by personal delivery or by mailing such notice by prepaid
post to the Assignor at the address set out above, or at such other
address as may be given in writing by the Assignor to the Bank. Delivery
by fax transmission is deemed to be personal service and is deemed to be
received on the next business day following transmission. Delivery by
prepaid mail is deemed to be received three business days after mailing.
8. This Assignment shall be binding upon the Assignor and its heirs,
executors, administrators successors and permitted assigns and it shall
ensure to the benefit of the Bank and its successors and assigns. This
Agreement may be assigned by the Bank to any other person (without the
consent of any other party hereto) and, if so assigned, the assignee
shall have and be entitled to exercise any and all discretions, rights
and powers of the Bank hereunder, and all references herein to the Bank
shall include such assignee.
9. This Assignment shall be governed by and construed in accordance with the
laws of the province in which the branch of the Bank is located as
described on page 1.
IN WITNESS WHEREOF the Assignor has hereunto set his hand and seal or has
affixed its corporate seal duly attested by the hand(s) of its proper officer(s)
in that behalf, on the day and year first above written.
PRIMES DE LUXE INC.
Per: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name:
Title:
-3-
SCHEDULE "A"
DETAILED DESCRIPTION OF TRADE-MARKS
REGISTERED OWNER
PRIME DE LUXE INC.
DESCRIPTION OR ILLUSTRATION OF TRADE-MARKS:
PRIMES DE LUXE
A. CLUB PRESTIGE -TMA 396402
B. PRIMES DE LUXE AND DESIGN -TMA 539844
REGISTRATION PARTICULARS (PLACE, DATE, REGISTRATION NUMBER):
-4-
SCHEDULE "B"
LICENSED USERS OF TRADE-MARKS
LICENSE PARTICULARS (NAME OF LICENSEE, DATE AND TERM OF LICENSE):
Nil
OTHER RELEVANT INFORMATION:
Nil
