Exhibit 10.8.35
TRADEMARK
SECURITY AGREEMENT
THIS TRADEMARK
SECURITY AGREEMENT (this “ Agreement ”), dated
as of February 14, 2008, is entered into by and between
WESTAFF SUPPORT, 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 for the Lenders party to the Financing
Agreement referred to below (in such capacity, “ Secured
Party ”), 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;
B.
Secured Party and the Lenders have agreed to enter into certain
financing arrangements with Westaff (USA), Inc. (“
Borrower ”) pursuant to a Financing Agreement of even
date herewith by and among Borrower, Westaff, Inc., the
Lenders party thereto (collectively, the “ Lenders
”), and Secured Party, as Agent (the “ Financing
Agreement ”); and
C.
Debtor has guaranteed the obligations of Borrower under the
Financing Agreement pursuant to a Continuing Guaranty of even date
herewith made by Debtor and MediaWorld International in favor of
Secured Party and the Lenders (the “ Guaranty ”)
(the Financing Agreement and the Guaranty, 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 ”).
NOW, THEREFORE,
the parties hereto agree as follows:
1.
SECURITY INTEREST
In order to induce
Secured Party and the Lenders to enter into the Loan Documents and
in consideration thereof, Debtor hereby grants to Secured Party,
for the benefit of the Lenders, a security interest in:
(a)
all of Debtor’s now existing or hereafter acquired right,
title, 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 are collectively referred to herein
as the “ Collateral ”).
2.
OBLIGATIONS SECURED
The security
interests granted to Secured Party in this Agreement shall secure
the prompt and indefeasible payment and performance of the
“Obligations” as defined in the Financing Agreement
(all the foregoing hereinafter referred to as 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
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 Secured Party, or otherwise dispose of, any of the
Collateral without the prior written consent of Secured Party,
which will not be unreasonably withheld, 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 Secured
Party 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 Secured Party to execute and file one or more
financing statements (or similar documents) with respect to the
Collateral. Debtor further authorizes Secured Party to have
this or any other similar security
2
agreement filed with
the Commissioner of Patents and Trademarks or other appropriate
federal, state or government office.
D.
Debtor will, concurrently with the execution and delivery of this
Agreement, execute and deliver to Secured Party an original of a
Power of Attorney in the form of Exhibit 1 annexed
hereto for the implementation of the assignment, sale or other
disposition of the Collateral pursuant to Secured Party’s
exercise of the rights and remedies granted to Secured Party
hereunder. Secured Party agrees it will only exercise the
Power of Attorney upon the occurrence and during the continuation
of an Event of Default under (and as defined in) the Financing
Agreement.
E.
Secured Party may, in its sole discretion, pay any amount or do any
act which Debtor fails to pay or do as required hereunder or as
requested by Secured Party to maintain and preserve the Collateral,
defend, protect, record, amend or enforce the Obligations, the
Collateral, or the security interest granted hereunder, including,
but not limited to, all filing or recording fees, court costs,
collection charges and reasonable attorneys’ fees.
Debtor will be liable to Secured Party for any such payment, which
payment shall be deemed a borrowing b
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