Exhibit 10.3
TRADEMARK COLLATERAL SECURITY AND
PLEDGE AGREEMENT
SOS STAFFING SERVICES, INC.
TO
STATE STREET BANK AND TRUST COMPANY,
AS COLLATERAL AGENT
DATED AS OF JULY 30, 2001
TABLE OF CONTENTS
1. DEFINITIONS............................................................3
2. GRANT OF SECURITY INTEREST.............................................6
2.1. SECURITY INTEREST; ASSIGNMENT OF MARKS......................6
2.2. CONDITIONAL ASSIGNMENT......................................6
2.3. SUPPLEMENTAL TO SECURITY AGREEMENT..........................6
3. REPRESENTATIONS, WARRANTIES AND COVENANTS..............................7
4. INSPECTION RIGHTS......................................................8
5. NO TRANSFER OR INCONSISTENT AGREEMENTS.................................8
6. AFTER-ACQUIRED TRADEMARKS, ETC.........................................9
6.1. AFTER-ACQUIRED TRADEMARKS...................................9
6.2. AMENDMENT TO SCHEDULE.......................................9
7. TRADEMARK PROSECUTION..................................................9
7.1. ASSIGNOR RESPONSIBLE........................................9
7.2. ASSIGNOR'S DUTIES, ETC......................................9
7.3. ASSIGNOR'S ENFORCEMENT RIGHTS...............................10
7.4. PROTECTION OF TRADEMARKS, ETC...............................10
7.5. NOTIFICATION BY ASSIGNOR....................................10
8. REMEDIES...............................................................10
9. COLLATERAL PROTECTION..................................................11
10. POWER OF ATTORNEY.....................................................11
11. FURTHER ASSURANCES....................................................12
12. TERMINATION...........................................................12
13. COURSE OF DEALING.....................................................12
14. EXPENSES..............................................................13
15. OVERDUE AMOUNTS.......................................................13
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION...........................13
17. NOTICES...............................................................13
18. AMENDMENT AND WAIVER..................................................14
19. GOVERNING LAW; CONSENT TO JURISDICTION................................14
20. WAIVER OF JURY TRIAL..................................................15
21. MISCELLANEOUS.........................................................15
TRADEMARK COLLATERAL
SECURITY AND PLEDGE AGREEMENT
TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT (as may be amended,
restated, supplemented or otherwise modified from time to time, this "TRADEMARK
AGREEMENT") is made as of July 30, 2001, by and between SOS STAFFING SERVICES,
INC., a Utah corporation, having its principal place of business at 0000 Xxxxx
Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000 (together with its successors and assigns,
the "ASSIGNOR"), and STATE STREET BANK AND TRUST COMPANY, as collateral agent
(in such capacity, together with its successors and assigns acting in such
capacity pursuant to the Intercreditor Agreement (defined below), the
"COLLATERAL AGENT") for the benefit of (a) XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("XXXXX FARGO"), as administration agent under the Bank Credit
Agreement (defined below) (in such capacity, together with its successors and
assigns in such capacity, the "BANK AGENT"), (b) the financial institutions
which from time to time a party to the Bank Credit Agreement as lenders
thereunder (including Xxxxx Fargo as a lender under the Bank Credit Agreement,
together with the successors and assigns of all such parties, the "BANKS") and
(c) each of XXXXXXX NATIONAL LIFE INSURANCE COMPANY, GREAT WEST LIFE & ANNUITY
INSURANCE COMPANY, FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN, FARM BUREAU
MUTUAL INSURANCE COMPANY OF MICHIGAN, THE CANADA LIFE ASSURANCE COMPANY, CANADA
LIFE INSURANCE COMPANY OF AMERICA, and CANADA LIFE INSURANCE COMPANY OF NEW YORK
(collectively, together with their successors and assigns, and future holders
from time to time of the Notes (defined below), the "NOTEHOLDERS" and,
collectively with the Banks, the "SECURED PARTIES"). All capitalized terms used
herein have the respective meanings ascribed thereto in the Recitals and in
Section 1.
R E C I T A L S
WHEREAS, the Assignor, the Bank Agent and the Banks have entered into
the Amended and Restated Credit Agreement, dated as of July 27, 1998, among the
Assignor and the Banks (as amended and as further amended, restated, refinanced,
supplemented or otherwise modified from time to time, the "BANK CREDIT
AGREEMENT");
WHEREAS, pursuant to those separate Note Purchase Agreements, each
dated as of September 1, 1998 (as amended and as further amended, restated,
refinanced, supplemented or otherwise modified from time to time, the "NOTE
PURCHASE AGREEMENTS"), the Assignor issued to the "Purchasers" (as defined
therein) $5,000,000 of its Senior Notes, Series A, due September 1, 2003 and
$30,000,000 of its Senior Notes, Series B, due September 1, 2008 (collectively,
as amended and as further amended, restated, refinanced or otherwise modified
from time to time, the "NOTES");
WHEREAS, all obligations of the Assignor under the Bank Credit
Agreement and all obligations of the Assignor under the Notes and the Note
Purchase Agreements have been guaranteed by the subsidiaries of the Assignor and
may be guaranteed from time to time by certain other subsidiaries as provided in
the Financing Agreements (such guarantors referred to as the "GUARANTORS" and
such guaranties referred to as the "GUARANTIES");
WHEREAS, pursuant to that certain Intercreditor Agreement, dated as of
the date hereof, among the Bank Agent, the Noteholders, and the Collateral
Agent, and acknowledged and agreed to by the Assignor and its Subsidiaries (as
amended, restated, supplemented or otherwise modified from time to time, the
"INTERCREDITOR AGREEMENT"), the Secured Parties appointed the Collateral Agent
to act on behalf of all Secured Parties regarding the Pledged Trademarks
(defined below) and certain other matters, all as more fully provided therein,
and, among other things, further defined the rights, duties, authority and
responsibilities of the Collateral Agent and the relationship among the Secured
Parties regarding their PARI PASSU interests in the Pledged Trademarks;
WHEREAS, pursuant to that Security Agreement, dated as of the date
hereof, among the Assignor and the Guarantors (collectively, the "OBLIGORS") and
the Collateral Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "SECURITY AGREEMENT"), the Obligors granted security
interests in certain of the Assignor's personal property and fixture assets,
including without limitation the trademarks, service marks, trademark and
service xxxx registrations, and trademark and service xxxx registration
applications listed on SCHEDULE A attached hereto, in favor of the Collateral
Agent, for the benefit of the Secured Parties, all as more fully provided
therein;
WHEREAS, it is a condition under the Bank Credit Agreement and the
Note Purchase Agreements and certain of the other Financing Agreements that the
Assignor execute and deliver to the Collateral Agent this Trademark Agreement;
and
WHEREAS, this Trademark Agreement is supplemental to the provisions
contained in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings provided therefor in the Security Agreement. In
addition, the following terms shall have the meanings set forth in this ss.1 or
elsewhere in this Trademark Agreement referred to below:
ASSIGNMENT OF MARKS. See ss.2.1.
ASSOCIATED GOODWILL. All goodwill of the Assignor and its business,
products and services appurtenant to, associated with or symbolized by the
Trademarks and the use thereof.
PLEDGED TRADEMARKS. All of the Assignor's right, title and interest in
and to all of the Trademarks, the Trademark Registrations, the Trademark License
Rights, the Trademark Rights, the Associated Goodwill, the Related Assets, and
all accessions to, substitutions for, replacements of, and all products and
proceeds of any and all of the foregoing.
PTO. The United States Patent and Trademark Office.
RELATED ASSETS. All assets, rights and interests of the Assignor that
uniquely reflect or embody the Associated Goodwill, including the following:
(a) all patents, inventions, copyrights, trade secrets,
confidential information, formulae, methods or processes, compounds,
recipes, know-how, methods and operating systems, drawings,
descriptions, formulations, manufacturing and production and delivery
procedures, quality control procedures, product and service
specifications, catalogs, price lists, and advertising materials,
relating to the manufacture, production, delivery, provision and sale
of goods or services under or in association with any of the
Trademarks; and
(b) the following documents and things in the possession or under
the control of the Assignor, or subject to its demand for possession
or control, related to the production, delivery, provision and sale by
the Assignor, or any affiliate, franchisee, licensee or contractor, of
products or services sold by or under the authority of the Assignor in
connection with the Trademarks or Trademark Rights, whether prior to,
on or subsequent to the date hereof:
(i) all lists, contracts, ancillary documents and other
information that identify, describe or provide information with
respect to any customers, dealers or distributors of the
Assignor, its affiliates or franchisees or licensees or
contractors, for products or services sold under or in connection
with the Trademarks or Trademark Rights, including all lists and
documents containing information regarding each customer's,
dealer's or distributor's name and address, credit, payment,
discount, delivery and other sale terms, and history, pattern and
total of purchases by brand, product, style, size and quantity;
(ii) all agreements (including franchise agreements),
product and service specification documents and operating,
production and quality control manuals relating to or used in the
design, manufacture, production, delivery, provision and sale of
products or services under or in connection with the Trademarks
or Trademark Rights;
(iii) all documents and agreements relating to the identity
and locations of all sources of supply, all terms of purchase and
delivery, for all materials, components, raw materials and other
supplies and services used in the manufacture, production,
provision, delivery and sale of products or services under or in
connection with the Trademarks or Trademark Rights; and
(iv) all agreements and documents constituting or concerning
the present or future, current or proposed advertising and
promotion by the Assignor (or any of its affiliates, franchisees,
licensees or contractors) of products or services sold under or
in connection with the Trademarks or Trademark Rights.
TRADEMARK AGREEMENT. This Trademark Collateral Security and Pledge
Agreement, as amended and in effect from time to time.
TRADEMARK LICENSE RIGHTS. Any and all past, present or future rights
and interests of the Assignor pursuant to any and all past, present and future
franchising or licensing agreements in favor of the Assignor, or to which the
Assignor is a party, pertaining to any Trademarks, Trademark Registrations, or
Trademark Rights owned or used by third parties in the past, present or future,
including the right (but not the obligation) in the name of the Assignor or the
Collateral Agent to enforce, and xxx and recover for, any breach or violation of
any such agreement to which the Assignor is a party.
TRADEMARK REGISTRATIONS. All past, present or future federal, state,
local and foreign registrations of the Trademarks, all past, present and future
applications for any such registrations (and any such registrations thereof upon
approval of such applications), together with the right (but not the obligation)
to apply for such registrations (and prosecute such applications) in the name of
the Assignor or the Collateral Agent, and to take any and all actions necessary
or appropriate to maintain such registrations in effect and renew and extend
such registrations.
TRADEMARK RIGHTS. Any and all past, present or future rights in, to
and associated with the Trademarks throughout the world, whether arising under
federal law, state law, common law, foreign law or otherwise, including the
following: all such rights arising out of or associated with the Trademark
Registrations; the right (but not the obligation) to register claims under any
state, federal or foreign trademark law or regulation; the right (but not the
obligation) to xxx or bring opposition or cancellation proceedings in the name
of the Assignor or the Collateral Agent for any and all past, present and future
infringements or dilution of or any other damages or injury to the Trademarks,
the Trademark Rights, or the Associated Goodwill, and the rights to damages or
profits due or accrued arising out of or in connection with any such past,
present or future infringement, dilution, damage or injury; and the Trademark
License Rights.
TRADEMARKS. All of the trademarks, service marks, designs, logos,
indicia, trade names, corporate names, company names, business names, fictitious
business names, trade styles, elements of package or trade dress, and other
source and product or service identifiers, used or associated with or
appurtenant to the products, services and businesses of the Assignor, that (i)
are set forth on SCHEDULE A hereto, or (ii) have been adopted, acquired, owned,
held or used by the Assignor or are now owned, held or used by the Assignor, in
the Assignor's business, or with the Assignor's products and services, or in
which the Assignor has any right, title or interest, or (iii) are in the future
adopted, acquired, owned, held and used by the Assignor in the Assignor's
business or with the Assignor's products and services, or in which the Assignor
in the future acquires any right, title or interest.
USE. With respect to any Trademark, all uses of such Trademark by, for
or in connection with the Assignor or its business or for the direct or indirect
benefit of the Assignor or its business, including all such uses by the Assignor
itself, by any of the affiliates of the Assignor, or by any franchisee, licensee
or contractor of the Assignor.
Unless otherwise provided herein, the rules of interpretation set
forth in the Security Agreement shall be applicable to this Trademark Agreement.
2. GRANT OF SECURITY INTEREST.
2.1. SECURITY INTEREST; ASSIGNMENT OF MARKS. As collateral security
for the payment and performance in full of all of the Obligations, the Assignor
hereby unconditionally grants to the Collateral Agent a continuing security
interest in and first priority lien on the Pledged Trademarks, and pledges and
mortgages (but does not transfer title to) the Pledged Trademarks to the
Collateral Agent. In addition, the Assignor has executed in blank and delivered
to the Collateral Agent an assignment of federally registered trademarks in
substantially the form of EXHIBIT 1 hereto (the "ASSIGNMENT OF MARKS"). The
Assignor hereby authorizes the Collateral Agent to complete as assignee and
record with the PTO the Assignment of Marks upon the occurrence and during the
continuance of an Event of Default and the proper exercise of the Collateral
Agent's remedies under this Trademark Agreement and the Security Agreement.
2.2. CONDITIONAL ASSIGNMENT. In addition to, and not by way of
limitation of, the grant, pledge and mortgage of the Pledged Trademarks provided
in ss.2.1, the Assignor grants, assigns, transfers, conveys and sets over to the
Collateral Agent the Assignor's entire right, title and interest in and to the
Pledged Trademarks; PROVIDED that such grant, assignment, transfer and
conveyance shall be and become of force and effect only (i) upon or after the
occurrence and during the continuance of an Event of Default and (ii) either (A)
upon the written demand of the Collateral Agent at any time during such
continuance or (B) immediately and automatically (without notice or action of
any kind by the Collateral Agent) upon an Event of Default for which
acceleration of the Obligations is automatic under any Financing Agreement or
upon the sale or other disposition of or foreclosure upon the Collateral
pursuant to the Security Agreement and applicable law (including the transfer or
other disposition of the Collateral by the Assignor to the Collateral Agent or
its nominee in lieu of foreclosure).
2.3. SUPPLEMENTAL TO SECURITY AGREEMENT. Pursuant to the Security
Agreement the Assignor has granted to the Collateral Agent a continuing security
interest in and lien on the Collateral (including the Pledged Trademarks). The
Security Agreement, and all rights and interests of the Collateral Agent in and
to the Collateral (including the Pledged Trademarks) thereunder, are hereby
ratified and confirmed in all respects. In no event shall this Trademark
Agreement, the grant, assignment, transfer and conveyance of the Pledged
Trademarks hereunder, or the recordation of this Trademark Agreement (or any
document hereunder) with the PTO, adversely affect or impair, in any way or to
any extent, the Security Agreement, the security interest of the Collateral
Agent in the Collateral (including the Pledged Trademarks) pursuant to the
Security Agreement and this Trademark Agreement, the attachment and perfection
of such security interest under the Uniform Commercial Code (including the
security interest in the Pledged Marks), or any present or future rights and
interests of the Collateral Agent in and to the Collateral under or in
connection with the Security Agreement, this Trademark Agreement or the Uniform
Commercial Code. Any and all rights and interests of the Collateral Agent in and
to the Pledged Trademarks (and any and all obligations of the Assignor with
respect to the Pledged Trademarks) provided herein, or arising hereunder or in
connection herewith, shall only supplement and be cumulative and in addition to
the rights and interests of the Collateral Agent (and the obligations of the
Assignor) in, to or with respect to the Collateral (including the Pledged
Trademarks) provided in or arising under or in connection with the Security
Agreement and shall not be in derogation thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Assignor represents, warrants and covenants that: (i) SCHEDULE A
sets forth a true and complete list of all Trademarks and Trademark
Registrations now owned, licensed, controlled or used by the Assignor; (ii) the
Trademarks and Trademark Registrations are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part, and there is no litigation or
proceeding pending concerning the validity or enforceability of the Trademarks
or Trademark Registrations; (iii) to the best of the Assignor's knowledge, each
of the Trademarks and Trademark Registrations is valid and enforceable; (iv) to
the best of the Assignor's knowledge, there is no infringement by others of the
Trademarks, Trademark Registrations or Trademark Rights; (v) no claim has been
made that the use of any of the Trademarks does or may violate the rights of any
third person, and to the best of the Assignor's knowledge, there is no
infringement by the Assignor of the trademark rights of others; (vi) the
Assignor is the sole and exclusive owner of the entire and unencumbered right,
title and interest in and to each of the Trademarks (other than ownership and
other rights reserved by third party owners with respect to Trademarks that the
Assignor is licensed to use), free and clear of any liens, charges, encumbrances
and adverse claims, including pledges, assignments, licenses, registered user
agreements and covenants by the Assignor not to xxx third persons, other than
the security interest and assignment created by the Security Agreement and this
Trademark Agreement; (vii) the Assignor has the unqualified right to enter into
this Trademark Agreement and to perform its terms and has entered and will enter
into written agreements with each of its present and future employees, agents,
consultants, licensors and licensees that will enable them to comply with the
covenants herein contained; (viii) the Assignor has used, and will continue to
use, proper statutory and other appropriate proprietary notices in connection
with its use of the Trademarks; (ix) the Assignor has used, and will continue to
use for the duration of this Trademark Agreement, consistent standards of
quality in its manufacture and provision of products and services sold or
provided under the Trademarks; (x) this Trademark Agreement, together with the
Security Agreement, will create in favor of the Collateral Agent a valid and
perfected first priority security interest in the Pledged Trademarks upon making
the filings referred to in clause (xi) of this ss.3; and (xi) except for the
filing of financing statements with the Secretary of State for the State of Utah
under the Uniform Commercial Code and the recording of this Trademark Agreement
with the PTO, no authorization, approval or other action by, and no notice to or
filing with, any governmental or regulatory authority, agency or office is
required either (A) for the grant by the Assignor or the effectiveness of the
security interest and assignment granted hereby or for the execution, delivery
and performance of this Trademark Agreement by the Assignor, or (B) for the
perfection of or the exercise by the Collateral Agent of any of its rights and
remedies hereunder.
4. INSPECTION RIGHTS.
The Assignor hereby grants to the Collateral Agent and its employees
and agents the right to visit the Assignor's plants and facilities that
manufacture, inspect or store products sold under any of the Trademarks, and to
inspect the products and quality control records relating thereto at reasonable
times during regular business hours.
5. NO TRANSFER OR INCONSISTENT AGREEMENTS.
Without the Collateral Agent's prior written consent, the Assignor
will not (i) mortgage, pledge, assign, encumber, grant a security interest in,
transfer, license or alienate any of the Pledged Trademarks, or (ii) enter into
any agreement (for example, a license agreement) that is inconsistent with the
Assignor's obligations under this Trademark Agreement or the Security Agreement.
6. AFTER-ACQUIRED TRADEMARKS, ETC.
6.1. AFTER-ACQUIRED TRADEMARKS. If, before the Obligations shall have
been finally paid and satisfied in full, the Assignor shall obtain any right,
title or interest in or to any other or new Trademarks, Trademark Registrations
or Trademark Rights, the provisions of this Trademark Agreement shall
automatically apply thereto and the Assignor shall promptly provide to the
Collateral Agent notice thereof in writing and execute and deliver to the
Collateral Agent such documents or instruments as the Collateral Agent may
reasonably request further to implement, preserve or evidence the Collateral
Agent's interest therein.
6.2. AMENDMENT TO SCHEDULE. The Assignor authorizes the Collateral
Agent to modify this Trademark Agreement and the Assignment of Marks, without
the necessity of the Assignor's further approval or signature, by amending
EXHIBIT A hereto and the ANNEX to the Assignment of Marks to include any future
or other Trademarks, Trademark Registrations or Trademark Rights under ss.2 or
ss.6.
7. TRADEMARK PROSECUTION.
7.1. ASSIGNOR RESPONSIBLE. The Assignor shall assume full and complete
responsibility for the prosecution, defense, enforcement or any other necessary
or desirable actions in connection with the Pledged Trademarks, and shall hold
the Collateral Agent harmless from any and all costs, damages, liabilities and
expenses that may be incurred by the Collateral Agent in connection with the
Collateral Agent's interest in the Pledged Trademarks or any other action or
failure to act in connection with this Trademark Agreement or the transactions
contemplated hereby. In respect of such responsibility, the Assignor shall
retain trademark counsel acceptable to the Collateral Agent.
7.2. ASSIGNOR'S DUTIES, ETC. The Assignor shall have the right and the
duty, through trademark counsel acceptable to the Collateral Agent, to prosecute
diligently any trademark registration applications of the Trademarks pending as
of the date of this Trademark Agreement or thereafter, to preserve and maintain
all rights in the Trademarks and Trademark Registrations, including the filing
of appropriate renewal applications and other instruments to maintain in effect
the Trademark Registrations and the payment when due of all registration renewal
fees and other fees, taxes and other expenses that shall be incurred or that
shall accrue with respect to any of the Trademarks or Trademark Registrations.
Any expenses incurred in connection with such applications and actions shall be
borne by the Assignor. The Assignor shall not abandon any filed trademark
registration application, or any Trademark Registration or Trademark, without
the consent of the Collateral Agent, which consent shall not be unreasonably
withheld.
7.3. ASSIGNOR'S ENFORCEMENT RIGHTS. The Assignor shall have the right
and the duty to bring suit or other action in the Assignor's own name to
maintain and enforce the Trademarks, the Trademark Registrations and the
Trademark Rights. The Assignor may require the Collateral Agent to join in such
suit or action as necessary to assure the Assignor's ability to bring and
maintain any such suit or action in any proper forum if (but only if) the
Collateral Agent is completely satisfied that such joinder will not subject the
Collateral Agent to any risk of liability. The Assignor shall promptly, upon
demand, reimburse and indemnify the Collateral Agent for all damages, costs and
expenses, including legal fees, incurred by the Collateral Agent pursuant to
this ss.7.3.
7.4. PROTECTION OF TRADEMARKS, ETC. In general, the Assignor shall
take any and all such actions (including institution and maintenance of suits,
proceedings or actions) as may be necessary or appropriate to properly maintain,
protect, preserve, care for and enforce the Pledged Trademarks. The Assignor
shall not take or fail to take any action, nor permit any action to be taken or
not taken by others under its control, that would adversely affect the validity,
grant or enforcement of the Pledged Trademarks.
7.5. NOTIFICATION BY ASSIGNOR. Promptly upon obtaining knowledge
thereof, the Assignor will notify the Collateral Agent in writing of the
institution of, or any final adverse determination in, any proceeding in the PTO
or any similar office or agency of the United States or any foreign country, or
any court, regarding the validity of any of the Trademarks or Trademark
Registrations or the Assignor's rights, title or interests in and to the Pledged
Trademarks, and of any event that does or reasonably could materially adversely
affect the value of any of the Pledged Trademarks, the ability of the Assignor
or the Collateral Agent to dispose of any of the Pledged Trademarks or the
rights and remedies of the Collateral Agent in relation thereto (including but
not limited to the levy of any legal process against any of the Pledged
Trademarks).
8. REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent shall have, in addition to all other rights and remedies
given it by this Trademark Agreement (including, without limitation, those set
forth in ss.2.2), the Security Agreement and any other of the Financing
Agreements, those allowed by law and the rights and remedies of a secured party
under the Uniform Commercial Code as enacted in the State of New York, and,
without limiting the generality of the foregoing, the Collateral Agent may
immediately, without demand of performance and without other notice (except as
set forth next below) or demand whatsoever to the Assignor, all of which are
hereby expressly waived, sell or license at public or private sale or otherwise
realize upon the whole or from time to time any part of the Pledged Trademarks,
or any interest that the Assignor may have therein, and after deducting from the
proceeds of sale or other disposition of the Pledged Trademarks all expenses
incurred by the Collateral Agent in attempting to enforce this Trademark
Agreement (including all reasonable expenses for broker's fees and legal
services), shall apply the residue of such proceeds toward the payment of the
Obligations as set forth in or by reference in the Security Agreement. Notice of
any sale, license or other disposition of the Pledged Trademarks shall be given
to the Assignor at least five (5) days before the time that any intended public
sale or other public disposition of the Pledged Trademarks is to be made or
after which any private sale or other private disposition of the Pledged
Trademarks may be made, which the Assignor hereby agrees shall be reasonable
notice of such public or private sale or other disposition. At any such sale or
other disposition, the Collateral Agent may, to the extent permitted under
applicable law, purchase or license the whole or any part of the Pledged
Trademarks or interests therein sold, licensed or otherwise disposed of.
9. COLLATERAL PROTECTION.
If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Collateral Agent, in its own name or that of the Assignor (in the
sole discretion of the Collateral Agent), may (but shall not be obligated to) do
such act or remedy such breach (or cause such act to be done or such breach to
be remedied), and the Assignor agrees promptly to reimburse the Collateral Agent
for any cost or expense incurred by the Collateral Agent in so doing.
10. POWER OF ATTORNEY.
If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Collateral Agent (and any
officer or agent of the Collateral Agent as the Collateral Agent may select in
its exclusive discretion) as the Assignor's true and lawful attorney-in-fact,
with full power of substitution and with the power to endorse the Assignor's
name on all applications, documents, papers and instruments necessary for the
Collateral Agent to use the Pledged Trademarks, or to grant or issue any
exclusive or nonexclusive license of any of the Pledged Trademarks to any third
person, or to take any and all actions necessary for the Collateral Agent to
assign, pledge, convey or otherwise transfer title in or dispose of any of the
Pledged Trademarks or any interest of the Assignor therein to any third person,
and, in general, to execute and deliver any instruments or documents and do all
other acts that the Assignor is obligated to execute and do hereunder. The
Assignor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof and releases the Collateral Agent from any claims,
liabilities, causes of action or demands arising out of or in connection with
any action taken or omitted to be taken by the Collateral Agent under this power
of attorney (except for the Collateral Agent's gross negligence or willful
misconduct). This power of attorney is coupled with an interest and shall be
irrevocable for the duration of this Trademark Agreement.
11. FURTHER ASSURANCES.
The Assignor shall, at any time and from time to time, and at its
expense, make, execute, acknowledge and deliver, and file and record as
necessary or appropriate with governmental or regulatory authorities, agencies
or offices, such agreements, assignments, documents and instruments, and do such
other and further acts and things (including, without limitation, obtaining
consents of third parties), as the Collateral Agent may request or as may be
necessary or appropriate in order to implement and effect fully the intentions,
purposes and provisions of this Trademark Agreement, or to assure and confirm to
the Collateral Agent the grant, perfection and priority of the Collateral
Agent's security interest in the Pledged Trademarks.
12. TERMINATION.
At such time as all of the Obligations have been finally paid and
satisfied in full, this Trademark Agreement shall terminate and the Collateral
Agent shall, upon the written request and at the expense of the Assignor,
execute and deliver to the Assignor all deeds, assignments and other instruments
as may be necessary or proper to reassign and reconvey to and re-vest in the
Assignor the entire right, title and interest to the Pledged Trademarks
previously granted, assigned, transferred and conveyed to the Collateral Agent
by the Assignor pursuant to this Trademark Agreement, as fully as if this
Trademark Agreement had not been made, subject to any disposition of all or any
part thereof that may have been made by the Collateral Agent pursuant hereto or
the Security Agreement.
13. COURSE OF DEALING.
No course of dealing between the Assignor and the Collateral Agent,
nor any failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent, any right, power or privilege hereunder or under the Security
Agreement or any other agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
14. EXPENSES.
Any and all fees, costs and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and expenses incurred by the Collateral
Agent in connection with the preparation of this Trademark Agreement and all
other documents relating hereto, the consummation of the transactions
contemplated hereby or the enforcement hereof, the filing or recording of any
documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, counsel fees, maintenance or renewal fees,
encumbrances, or otherwise protecting, maintaining or preserving the Pledged
Trademarks, or in defending or prosecuting any actions or proceedings arising
out of or related to the Pledged Trademarks, shall be borne and paid by the
Assignor.
15. OVERDUE AMOUNTS.
Upon notice and a failure to pay within (3) Business Days after such
notice, and until paid, all amounts due and payable by the Assignor hereunder
shall be a debt secured by the Pledged Trademarks and other Collateral and shall
bear, whether before or after judgment, interest at the Default Rate.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
COLLATERAL AGENT ASSUMES NO LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY
CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR
RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PLEDGED TRADEMARKS OR ANY
USE, LICENSE OR SUBLICENSE THEREOF, WHETHER ARISING OUT OF ANY PAST, CURRENT OR
FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL OF SUCH
LIABILITIES SHALL BE EXCLUSIVELY THE RESPONSIBILITY OF THE ASSIGNOR, AND THE
ASSIGNOR SHALL INDEMNIFY THE COLLATERAL AGENT FOR ANY AND ALL COSTS, EXPENSES,
DAMAGES AND CLAIMS, INCLUDING LEGAL FEES, INCURRED BY THE COLLATERAL AGENT WITH
RESPECT TO SUCH LIABILITIES.
17. NOTICES.
All notices and other communications made or required to be given
pursuant to this Trademark Agreement shall be in writing and shall be delivered
in hand, mailed by United States registered or certified first-class mail,
postage prepaid, or sent by telegraph, telecopy or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Assignor, at 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, XX 00000, Attention: Xxxxx Xxxxx, or at such other address for
notice as the Assignor shall last have furnished in writing to the
person giving the notice, with copies to LeBoeuf, Lamb, Xxxxxx &
XxxXxx LLP, 1000 Xxxxxx Building, 000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000, Attention: Xxxxxxx Xxxxxxx; and
(b) if to the Collateral Agent, at Xxx Xxxxxx xx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxx, XX 00000, Attention: Corporate Trust Administration
(SOS Staffing Services, Inc. 2001 Intercreditor Agreement), or at such
other address for notice as the Collateral Agent shall last have
furnished in writing to the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer, (ii) if sent by registered or certified first-class mail,
postage prepaid, two (2) Business Days after the posting thereof, and (iii) if
sent by telegraph, telecopy, or telex, at the time of the dispatch thereof, if
in normal business hours in the country of receipt, or otherwise at the opening
of business on the following Business Day.
18. AMENDMENT AND WAIVER.
This Trademark Agreement is subject to modification only by a writing
signed by the Collateral Agent and the Assignor, except as provided in ss.6.2.
The Collateral Agent shall not be deemed to have waived any right hereunder
unless such waiver shall be in writing and signed by the Collateral Agent. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS TRADEMARK AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. The Assignor agrees that any suit for the enforcement
of this Trademark Agreement may be brought in the courts of the State of New
York or any federal court sitting therein and consents to the non-exclusive
jurisdiction of such court and to service of process in any such suit being made
upon the Assignor by mail at the address specified in ss.17. The Assignor hereby
waives any objection that it may now or hereafter have to the venue of any such
suit or any such court or that such suit is brought in an inconvenient court.
20. WAIVER OF JURY TRIAL.
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS TRADEMARK
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH
RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Assignor waives any
right which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Assignor (i)
certifies that neither the Collateral Agent nor any representative, agent or
attorney of the Collateral Agent has represented, expressly or otherwise, that
the Collateral Agent would not, in the event of litigation, seek to enforce the
foregoing waivers, and (ii) acknowledges that, in entering into the Financing
Agreements, the Collateral Agent is relying upon, among other things, the
waivers and certifications contained in this ss.20.
21. MISCELLANEOUS.
The headings of each section of this Trademark Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Trademark Agreement and all rights and obligations hereunder shall be binding
upon the Assignor and its respective successors and assigns, and shall inure to
the benefit of the Collateral Agent and its successors and assigns. In the event
of any irreconcilable conflict between the provisions of this Trademark
Agreement and the Security Agreement, the provisions of the Security Agreement
shall control. If any term of this Trademark Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby, and this Trademark Agreement shall be construed
and be enforceable as if such invalid, illegal or unenforceable term had not
been included herein. The Assignor acknowledges receipt of a copy of this
Trademark Agreement.
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of
the day and year first above written.
SOS STAFFING SERVICES, INC.
By: /s/ XxXxx X. Xxxxxx
--------------------------
Name: XxXxx X. Xxxxxx
Title: Chairman, President
and Chief Executive Officer
STATE STREET BANK AND TRUST
COMPANY, AS COLLATERAL AGENT
By:
--------------------------
Name:
Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF *__________________________)
) ss.
COUNTY OF *_________________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this [_____] day of [__], 2001, personally appeared [________] to
me known personally, and who, being by me duly sworn, deposes and says that he
is the [________] of [______], and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors, and said
[______] acknowledged said instrument to be the free act and deed of said
corporation.
-----------------------------
Notary Public
My commission expires:
SCHEDULE A
TRADEMARKS AND TRADEMARK REGISTRATIONS
TRADEMARK REGISTRATIONS --
OR UNITED STATES PATENT AND TRADEMARK OFFICE
SERVICE XXXX REGISTRATION NO. REGISTRATION DATE
------------ --------------- -----------------
SOS STAFFING SERVICES 1,990,978
ADEM 75/482,949
I AND DESIGN 75/503,445
EXECUSOFT, INC. 2,030,273
I INTELLIANT AND 75/503,444
DESIGN
IMPACT 76/180,921
IMPACT STAFFING 1,976,833
INTELLIANT 75/440,832
UNITING TALENT 76/180,992
WITH OPPORTUNITY
WE WANT TO WORK 75/327,476
FOR YOU
TOPS (work xxxx) 1,979,534 June 11, 1996
TOPS (design) 1,960,439 Xxxxx 0, 0000
XXXX STAFFING (word xxxx) 2,026,065 December 24, 1996
TOPS STAFFING (design) 2,026,064 December 24, 1996
TOPS* Total Personnel 1,704,335 July 28, 1992
Service (word xxxx)
TRADEMARK PENDING APPLICATIONS --
OR UNITED STATES PATENT AND TRADEMARK OFFICE
SERVICE XXXX SERIAL NO. FILING DATE
------------ ---------- -----------
EXHIBIT 1
ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS (U.S.)
WHEREAS, SOS STAFFING SERVICES, INC., a corporation organized and
existing under the laws of the State of Utah, having a place of business at 0000
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000 (the "Assignor"), has adopted and
used and is using the trademarks and service marks (the "Marks") identified on
the ANNEX hereto, and is the owner of the registrations of and pending
registration applications for such Marks in the United States Patent and
Trademark Office identified on such ANNEX; and
WHEREAS, STATE STREET BANK AND TRUST COMPANY, a [________] organized
and existing under the laws of the State of [________], having a place of
business at Xxx Xxxxxx xx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxx, XX 00000 (the
"Assignee") is desirous of acquiring the Marks and the registrations thereof and
registration applications therefor;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign, sell and transfer unto
the Assignee all right, title and interest in and to the Marks, together with
(i) the registrations of and registration applications for the Marks, (ii) the
goodwill of the business symbolized by and associated with the Marks and the
registrations thereof, and (iii) the right to xxx and recover for, and the right
to profits or damages due or accrued arising out of or in connection with, any
and all past, present or future infringements or dilution of or damage or injury
to the Marks or the registrations thereof or such associated goodwill.
This Assignment of Trademarks and Service Marks (U.S.) is intended to
and shall take effect as a sealed instrument at such time as the Assignee shall
complete this instrument by inserting its name in the second paragraph above and
signing its acceptance of this Assignment of Trademarks and Service Marks (U.S.)
below.
IN WITNESS WHEREOF, the Assignor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on this [__] day of
[______], 2001.
SOS STAFFING SERVICES, INC.
By:
-------------------------------
Name:
Title:
The foregoing assignment of the Marks and the registrations thereof
and registration applications therefor by the Assignor to the Assignee is hereby
accepted as of the [__] day of [_______], 2001.
STATE STREET BANK AND TRUST COMPANY,
AS COLLATERAL AGENT
By:
-------------------------------
Name:
Title:
COMMONWEALTH OR STATE OF *________________________)
) ss.
COUNTY OF *_______________________________________)
On this the [__] day of [_______], 2001, before me appeared
[__________], the person who signed this instrument, who acknowledged that (s)he
is the [_________] of [________] and that being duly authorized (s)he signed
such instrument as a free act on behalf of [_________].
------------------------------
Notary Public
[Seal]
My commission expires:
ANNEX
TRADEMARK REGISTRATIONS --
OR UNITED STATES PATENT AND TRADEMARK OFFICE
SERVICE XXXX REGISTRATION NO. REGISTRATION DATE
------------ --------------- --------------------
SOS STAFFING 1,990,978
SERVICES
ADEM 75/482,949
I AND DESIGN 75/503,445
EXECUSOFT, INC. 2,030,273
I INTELLIANT AND 75/503,444
DESIGN
IMPACT 76/180,921
IMPACT STAFFING 1,976,833
INTELLIANT 75/440,832
UNITING TALENT 76/180,992
WITH OPPORTUNITY
WE WANT TO WORK 75/327,476
FOR YOU
TOPS (work xxxx) 1,979,534 June 11, 1996
TOPS (design) 1,960,439 Xxxxx 0, 0000
XXXX STAFFING 2,026,065 December 24, 1996
(word xxxx)
TOPS STAFFING 2,026,064 December 24, 1996
(design)
TOPS* Total Personnel 1,704,335 July 28, 1992
Service (word xxxx)
TRADEMARK PENDING APPLICATIONS --
OR UNITED STATES PATENT AND TRADEMARK OFFICE
SERVICE XXXX SERIAL NO. FILING DATE
------------ --------- ---------------------
