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 


 


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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 appropriate federal, state or government office.


 


D.            Debtor will,
concurrently with the execution and delivery of this Agreement, execute and
deliver to Agent 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 Agent’s exercise of the rights and
remedies granted to Agent hereunder. 
Agent 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.             Agent 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 Agent 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 Agent for any such payment, which payment shall be deemed a
borrowing by Debtor from Agent, and shall be payable on demand together with
interest at the applicable rate set forth in the Loan Documents and shall be
part of the Obligations secured hereby.


 


F.             As of the date
hereof, Debtor does not have any Trademarks registered, or subject to pending
applications, in the United States Patent and Trademark Office or any similar
office or agency in the United States other than those described in Schedule A
annexed hereto.


 


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G.            Debtor shall notify
Agent in writing of the filing of any application for the registration of a
Trademark with the United States Patent and Trademark Office or any similar
office or agency in the United States or any state therein within thirty (30)
days of such filing.  Upon request of
Agent, Debtor shall execute and deliver to Agent any and all assignments,
agreements, instruments, documents, and such other papers as may be requested
by Agent to evidence the security interests of Agent in or Trademark.


 


H.            Debtor has not
abandoned any of the Trademarks material to the conduct of the business and
Debtor will not do any act, nor omit to do any act, whereby such Trademarks may
become abandoned, canceled, invalidated, unenforceable, avoided, or avoidable
except where Debtor, in the good faith exercise of its business judgment, has
otherwise determined that such Trademark is not material to the business or
operations of Debtor.  Debtor shall
notify Agent immediately if Debtor knows or has reason to know of any reason
why any application, registration, or recording may become abandoned, canceled,
invalidated, unenforceable, avoided, or avoidable.


 


I.              Debtor shall render
any assistance, as Agent may determine is reasonably necessary, to Agent in any
proceeding before the United States Patent and Trademark Office, any federal or
state court, or any similar office or agency in the United States or any state
therein or any other country to maintain such application and registration of
the Trademarks as Debtor’s exclusive property and to protect Agent’s interest
therein, including, without limitation, filing of renewals, affidavits of use,
affidavits of incontestability and opposition, interference, and cancellation
proceedings.


 


J.             Debtor shall promptly
notify Agent if Debtor (or any affiliate or subsidiary thereof) learns of any
use by any person of any other process or product which infringes upon any
Trademark.  If reasonably requested by
Agent, Debtor, at Debtor’s expense, shall join with Agent in an infringement
action as Agent, in Agent’s reasonable discretion, may deem advisable for the
protection of Agent’s rights and interests in and to the Trademarks.


 


K.            Debtor assumes all
responsibility and liability arising from the use of the Trademarks by Debtor,
and Debtor hereby indemnifies and holds Agent harmless from and against any
claim, suit, loss, damage, or expense (including reasonable attorneys’ fees)
arising out of any alleged defect in any product manufactured, promoted, or
sold by Debtor (or any affiliate or subsidiary thereof) in connection with any
Trademark or out of the manufacture, promotion, labeling, sale or advertisement
of any such product by Debtor (or any affiliate or subsidiary thereof) except
for claims, suits, losses, damages or expenses to the extent resulting from the
Agent’s gross negligence or willful misconduct.


 


4.             RIGHTS AND
REMEDIES


 


Upon the occurrence and during the
continuance of an Event of Default and at any time thereafter, in addition to
all other rights and remedies of Agent and the Secured Parties, whether
provided under applicable law, this Agreement or any of the other Loan
Documents or otherwise, and after expiration of any grace period, Agent shall
have the 


 


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following rights and remedies
which may be exercised without notice to, or consent by, Debtor, except as such
notice or consent is expressly provided for hereunder:


 


A.            Agent may make use of
any Trademarks for the sale of goods or rendering of services in connection
with enforcing any other security interest granted by Debtor to Agent.


 


B.            Agent may grant such
license or licenses relating to the Collateral for such term or terms, on such
conditions, and in such manner as Agent shall in its sole discretion deem
appropriate.  Such license or licenses
may be general, special, or otherwise and may be granted on an exclusive or
non-exclusive basis throughout all or any part of the United States of America,
its territories and possessions, and all foreign countries.


 


C.            Agent may assign,
sell, or otherwise dispose of the Collateral or any part thereof, either with
or without special conditions or stipulations, except that Agent agrees to
provide Debtor with ten (10) days prior written notice of any proposed
disposition of the Collateral.  Agent
shall have the power to buy the Collateral or any part thereof, and Agent shall
also have the power to execute assurances and perform all other acts which
Agent may, in Agent’s sole discretion, deem appropriate or proper to complete
such assignment, sale or disposition.  In
any such event, Debtor shall be liable for any deficiency.


 


D.            In addition to the
foregoing, in order to implement the assignment, sale, or other disposition of
any of the Collateral pursuant to subparagraph 4C above, Agent may
at any time execute and deliver on behalf of Debtor, pursuant to the authority
granted in the Powers of Attorney described in subparagraph 3E
above, one or more instruments of assignment of the Trademarks (or any
application, registration, or recording relating thereto), in form suitable for
filing, recording or registration. 
Debtor agrees to pay Agent on demand all costs incurred in any such
transfer of the Collateral, including, but not limited to, any taxes, fees, and
reasonable attorneys’ fees.


 


E.             Agent and the Secured
Parties may apply the proceeds actually received from any such license,
assignment, sale or other disposition of Collateral first to the reasonable
costs and expenses thereof, including, without limitation, reasonable attorneys’
fees and all legal, travel, and other expenses which may be incurred by
Agent.  Thereafter, Agent and the Secured
Parties may apply any remaining proceeds to such of the Obligations as Agent
and the Secured Parties may in its and their sole discretion determine.  Debtor shall remain liable to Agent for any
expenses or obligations remaining unpaid after the application of such
proceeds, and Debtor shall pay Agent on demand any such unpaid amount, together
with interest at the default rate set forth in the Loan Agreement.


 


F.             In the event that any
such license, assignment, sale or disposition of the Collateral (or any part
thereof) is made after the occurrence of an Event of Default, Debtor shall
supply to Agent or Agent’s designee Debtor’s knowledge and expertise relating
to the manufacture and sale of the products and services bearing the Trademarks
and Debtor’s customer lists and other records relating to the Trademarks and
the distribution thereof.


 


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Nothing
contained herein shall be construed as requiring Agent to take any such action
at any time.  All of Agent’s rights and
remedies, whether provided under law, the Agreements, this Agreement, or
otherwise, shall be cumulative and none is exclusive.  Such rights and remedies may be enforced
alternatively, successively, or concurrently.


 


5.             MISCELLANEOUS


 


A.            Any failure or delay
by Agent to require strict performance by Debtor of any of the provisions,
warranties, terms and conditions contained herein or in any other agreement,
document, or instrument, shall not affect Agent’s right to demand strict
compliance and performance therewith, and any waiver of any Event of Default
shall not waive or affect any other Event of Default, whether prior or subsequent
thereto, and whether of the same or of a different type.  None of the warranties, conditions,
provisions, and terms contained herein or in any other agreement, document, or
instrument shall be deemed to have been waived by any act or knowledge of Agent
or any other Secured Party, or any of its or their agents, officers, or
employees, but only by an instrument in writing, signed by an officer of Agent
and directed to Debtor, specifying such waiver.


 


B.            All notices, requests
and demands to or upon the respective parties hereto shall be deemed to have
been duly given or made: if by hand, immediately upon delivery; if by facsimile
(fax), telex or telegram, immediately upon sending; if by any overnight
delivery service, one day after dispatch; and if mailed by first class or
certified mail, three (3) days after mailing.  All notices, requests and demands are to be
given or made to the respective parties at the following addresses (or to such
other addresses as either party may designate by notice in accordance with the
provisions of this paragraph):


 


	
  If to Debtor:

  	
  WESTAFF
  (USA), INC.

  
	
   

  	
  298 North
  Wiget Lane

  
	
   

  	
  Walnut
  Creek, California 94598

  
	
   

  	
  Attn: Chief
  Financial Officer

  
	
   

  	
   

  
	
  If to Agent:

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
  as Agent

  
	
   

  	
  633 West
  Fifth Street, 29th Floor

  
	
   

  	
  Los Angeles,
  California 90071

  
	
   

  	
  Attn:
  Westaff (USA), Inc. Account Officer

  



 


C.            In the event that any
provision hereof shall be deemed to be invalid by any court, such invalidity
shall not affect the remainder of this Agreement.


 


D.            This Agreement shall
be binding upon and for the benefit of the parties hereto and their respective
legal representatives, successors and assigns. 
No provision hereof shall be modified, altered or limited except by a
written instrument expressly referring to this Agreement signed by the party to
be charged thereby.


 


E.             The security interest
granted to Agent shall terminate and the Collateral will be reassigned to
Debtor, at Debtor’s sole expense, upon termination of the Financing 


 


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Agreement and Payment in Full
(as defined in the Financing Agreement) to Agent and the Secured Parties of all
Obligations thereunder.


 


F.             THE VALIDITY,
INTERPRETATION AND EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE UNITED STATES OF AMERICA AND THE LAWS OF THE STATE OF CALIFORNIA.


 


{Signature Pages Follow}


 


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IN WITNESS WHEREOF, Debtor and Agent have
executed this Agreement as of the day and year first above written.


 


	
   

  	
  DEBTOR:

  
	
   

  	
   

  
	
   

  	
  WESTAFF (USA), INC., a California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dawn M. Jaffray

  
	
   

  	
   

  	
  Dawn
  M. Jaffray

  
	
   

  	
   

  	
  Senior
  Vice President and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  U.S.BANK NATIONAL ASSOCIATION, 

  
	
   

  	
  as Agent for the benefit of the Secured Parties

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Susan V. Freed

  
	
   

  	
   

  	
  Susan
  V. Freed

  
	
   

  	
   

  	
  Vice
  President

  



 


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