EXHIBIT 10.8.34
Execution Version
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT (this “
Agreement ”), dated as of February 14, 2008, is
entered into by and between WESTAFF (USA), INC., a California
corporation (“ Debtor ”), having an office at
298 North Wiget Lane, Walnut Creek, California 94598, and U.S. BANK
NATIONAL ASSOCIATION, with an office at 633 West Fifth Street, 29th
Floor, Los Angeles, California 90071, as Agent (in such capacity
and as used herein, “Agent”) for the benefit of the
Secured Parties (as such term is defined in the Financing
Agreement, defined below, and as such term is used herein (the
“ Secured Parties ”), with reference to the
following facts:
RECITALS
A.
Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, trade
names, terms, designs and applications therefor described in
Schedule A annexed hereto and made a part hereof;
and
B.
Debtor, Westaff, Inc., a Delaware corporation and the sole
shareholder of Debtor (“ Parent Guarantor ”),
the Lenders party thereto (collectively, the “ Lenders
”) and Agent are entering into a Financing Agreement of even
date herewith (the “ Financing Agreement ”),
pursuant to which Agent and the Lenders propose to provide certain
credit facilities to Debtor (the Financing Agreement, together with
this Agreement, and all other related documents, agreements,
instruments, as the same may now exist or may hereafter be amended
or supplemented, are referred to herein collectively as the “
Loan Documents ”).
C.
Concurrently therewith and herewith, (i) Parent Guarantor is
entering into a Continuing Guaranty dated as of even date herewith
in favor of Agent for the benefit of the Secured Parties (the
“ Parent Guaranty ”), pursuant to which Parent
Guarantor agrees to guaranty the payment and performance of
Debtor’s obligations under the Financing Agreement and the
other Loan Documents; and (ii) Westaff Support, Inc., a
California corporation and a wholly owned subsidiary of Debtor
(“ Westaff Support ”), and MediaWorld
International a California corporation and a wholly owned
subsidiary of Debtor (“ MediaWorld International
”), are similarly entering into a Continuing Guaranty dated
as of even date herewith in favor of Agent for the benefit of the
Secured Parties (the “ Subsidiary Guaranty ”),
pursuant to which Westaff Support and MediaWorld agree to guaranty
the payment and performance of Debtor’s obligations under the
Financing Agreement and the other Loan Documents.
D.
Concurrently therewith and herewith, Debtor, Parent Guarantor,
Westaff Support and MediaWorld are entering into a Security
Agreement dated as of even date herewith in favor of Agent for the
benefit of the Secured Parties (the “ Master Security
Agreement ”), pursuant to which Debtor, Parent Guarantor,
Westaff Support and MediaWorld, collectively as grantors, agree to
grant to Agent a perfected first priority security interest in
substantially all of each such grantor’s personal property
assets (subject only to Permitted Liens (as defined in the
Financing Agreement), including all of Debtor’s rights, title
and interest in the Collateral (as defined below).
NOW, THEREFORE, and in consideration and in
furtherance of, and in order to give effect to, the foregoing
recitals, the parties hereto agree as follows:
1.
SECURITY INTEREST
In
order to induce Agent and the Secured Parties to enter into the
Loan Documents and in consideration thereof, Debtor hereby grants
to Agent, for the benefit of the Secured Parties, a security
interest in:
(a)
all of Debtor’s now existing or hereafter acquired rights and
interest in and to: all of Debtor’s trademarks, trade names,
trade styles and service marks; all prints and labels on which such
trademarks, trade names, trade styles and service marks appear,
have appeared or will appear, and all designs and general
intangibles of a like nature; all applications, registrations and
recordings relating to the foregoing in the United States Patent
and Trademark Office or in any similar office or agency of the
United States, any State thereof, any political subdivision
thereof or in any other countries, and all reissues, extensions and
renewals thereof including those trademarks, terms, design and
applications described in Schedule A hereto (the
“ Trademarks ”);
(b)
the goodwill of the business symbolized by each of the Trademarks,
including, without limitation, all customer lists and other records
relating to the distribution of products or services bearing the
Trademarks; and
(c)
any and all proceeds of any of the foregoing, including, without
limitation, any claims by Debtor against third parties for
infringement of the Trademarks or of any licenses with respect
thereto.
All of the
foregoing described in clauses (a), (b) and (c) above are
collectively referred to herein as the “ Collateral
”.
2.
OBLIGATIONS SECURED
The
security interests granted to Agent in this Agreement shall secure
the prompt and indefeasible payment and performance of the
“Obligations” (as defined in the Financing Agreement
and as such term us used herein, the “ Obligations
”).
3.
WARRANTIES AND COVENANTS
Debtor hereby covenants, represents and
warrants that (all of such covenants, representations and
warranties being continuing in nature until the Obligations are
Paid in Full (as defined in the Financing Agreement)):
A.
All of the existing Collateral is valid and subsisting in full
force and effect to Debtor’s knowledge, and Debtor owns sole,
full, and clear title thereto, and has the right and power to grant
the security interests granted hereunder. Debtor will, at
Debtor’s expense, perform all acts and execute all documents
reasonably necessary to maintain the existence of the Collateral as
valid, subsisting and registered trademarks including without
2
limitation the
filing of any renewal affidavits and applications. The
Collateral is not subject to any lien, security interest, claim or
encumbrance (“ Lien ”), except the security
interests granted hereunder, the licenses, if any, which are
specifically described in Schedule B hereto and
Permitted Liens (as defined in the Financing Agreement).
B.
Debtor will not assign, sell, mortgage, lease, transfer, pledge,
hypothecate, grant a security interest in or Lien upon, encumber,
grant an exclusive or non-exclusive license relating thereto,
except to Agent, or otherwise dispose of, any of the Collateral
without the prior written consent of Agent, which will not be
unreasonably withheld, except for non-exclusive licenses in the
ordinary course of Debtor’s business and as permitted under
Section 10.24 of the Financing Agreement, except for
(i) non-exclusive licenses in the ordinary course of
Debtor’s business and (ii) exclusive registered user
agreements or licenses limited in geographic scope granted to
franchisees in the ordinary course of Debtor’s business and
in accordance with Section 10.24(c) of the
Financing Agreement.
C.
Debtor will, at Debtor’s expense, perform all acts and
execute all documents reasonably requested at any time by Agent to
evidence, perfect, maintain, record, or enforce the security
interest in the Collateral granted hereunder or to otherwise
further the provisions of this Agreement. Debtor hereby
authorizes Agent to execute and file one or more financing
statements (or similar documents) with respect to the
Collateral. Debtor further authorizes Agent to have this or
any other similar security agreement filed with the Commissioner of
Patents and Trademarks or other appro
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