EXHIBIT 10.24
TRADEMARK SECURITY AGREEMENT
AGREEMENT dated as of February 21, 1997 made by OUTSOURCE FRANCHISING,
INC., and OUTSOURCE INTERNATIONAL, INC., both Florida corporations (each
individually a "Grantor," and collectively, the "Grantors"), in favor of BANK OF
BOSTON CONNECTICUT, as Agent under the Credit Agreement (as defined herein), for
the benefit of the Agent and the ratable benefit of the Banks from time to time
parties to the Credit Agreement (the "Secured Party").
W I T N E S S E T H:
WHEREAS, OutSource International, Inc. and Secured Party are parties to
a Credit Agreement, dated as of the date hereof and certain agreements and
instruments entered into pursuant thereto (the "Loan Documents") pursuant to
which Secured Party may, in its discretion, make certain loans and credit
accommodations to OutSource International, Inc.; and
WHEREAS, Secured Party's willingness to enter into the Loan Documents
and make the loans and credit accommodations available thereunder is subject to
the condition, among others, that the Grantors execute and deliver this
Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and for One Dollar
($1.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in addition to, and not in limitation of,
any rights of Secured Party under the Loan Documents, each of the Grantors
hereby agrees, jointly and severally, for the benefit of Secured Party as
follows:
1. DEFINITIONS; RULES OF INTERPRETATION.
1.1 For the purposes of this Agreement, the following terms shall have the
following meanings. All capitalized terms used in this Agreement and not
otherwise defined shall have the respective meanings ascribed thereto in the
Credit Agreement. In addition, the following terms shall also have any meanings
set forth elsewhere in this Trademark Agreement.
"APPLICATIONS" shall have the meaning ascribed to such term in the
Credit Agreement.
"ASSOCIATED GOODWILL" shall mean all goodwill of each of the Grantors
or their businesses, products and services appurtenant to, associated with or
symbolized by the Trademarks and/or the use thereof.
"BANKS" shall have the meaning ascribed to such term in the Credit
Agreement.
"COLLATERAL" shall have the meanings ascribed to that term in the OI
Security Agreement
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and the Subsidiary Security Agreement.
"CREDIT AGREEMENT" shall mean the Credit Agreement dated of even date
herewith among OutSource International, Inc., the Banks from time to time
parties thereto and Bank of Boston Connecticut, as Agent, as the same may
hereafter be amended, modified, supplemented or restated from time to time.
"EVENT OF DEFAULT" shall have the meaning ascribed to such term in the
Credit Agreement.
"LOAN DOCUMENTS" shall mean the Credit Agreement, the Notes, the
Applications, the OI Pledge Agreement, the OI Security Agreement, the Subsidiary
Guarantee and the Subsidiary Security Agreement together with any and all other
instruments, documents and agreements executed and delivered by either Grantor
or the Subsidiaries from time to time in connection with the indebtedness
evidenced by the Credit Agreement and the Notes, as the same may hereafter be
amended, modified, supplemented or restated from time to time.
"NOTES" shall have the meaning ascribed to such term in the Credit
Agreement.
"PROCEEDS" shall mean any consideration received from the sale,
exchange, license, lease or other transfer or disposition of any right,
interest, asset or property which constitutes Trademark Collateral, any value
received as a consequence of the ownership, possession, or use of any Trademark
Collateral, and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft or other involuntary conversion of
whatever nature of any right, interest, asset or property which constitutes
Trademark Collateral.
"OI PLEDGE AGREEMENT" shall mean the OI Pledge Agreement dated of even
date herewith made by OutSource International, Inc. in favor of Bank of Boston
Connecticut, as Agent under the Credit Agreement for the benefit of Agent and
for the ratable benefit of the Banks that from time to time are parties to the
Credit Agreement, as the same may hereafter be amended, modified, supplemented
or restated from time to time.
"OI SECURITY AGREEMENT" shall mean the OI Security Agreement dated of
even date herewith made by OutSource International, Inc. in favor of Bank of
Boston Connecticut, as Agent under the Credit Agreement for the benefit of the
Agent and the ratable benefit of the Banks that from time to time are parties to
the Credit Agreement, as the same may hereafter be amended, modified,
supplemented or restated from time to time.
"OBLIGATIONS" shall have the meaning ascribed to it in the OI Pledge
Agreement, the OI Security Agreement, and the Subsidiary Security Agreement.
"PTO" shall mean the United States Patent and Trademark Office.
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"RELATED ASSETS" shall mean all assets, rights and interests of each
Grantor which uniquely reflect or embody the Associated Goodwill, including but
not limited to the following: all patents, inventions, copyrights, trade
secrets, confidential information, formulae, algorithms, methods, processes,
compounds, know-how, 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, licensing and sale of goods or services under or in association with
any of the Trademarks, and all books and records describing or used in
connection with any or all of the foregoing.
"SUBSIDIARY" shall have the meaning ascribed to such term in the Credit
Agreement.
"SUBSIDIARY GUARANTEE" shall mean the Subsidiary Guarantee dated of
even date herewith made by each of the corporations signatory thereto in favor
of Bank of Boston Connecticut, as Agent under the Credit Agreement for the
benefit of the Agent and the ratable benefit of the Banks that from time to time
are parties to the Credit Agreement, as the same may hereafter be amended,
modified, supplemented or restated from time to time.
"SUBSIDIARY SECURITY AGREEMENT" shall mean the Subsidiary Security
Agreement dated of even date herewith made by the corporations that are
signatory thereto in favor of Bank of Boston Connecticut, as Agent under the
Credit Agreement for the benefit of the Agent and the ratable benefit of the
Banks that from time to time are parties to the Credit Agreement, as the same
may hereafter be amended, modified, supplemented or restated from time to time.
"TRADEMARK AGREEMENT" shall mean this Trademark Security Agreement, as
the same may hereafter be amended, modified, supplemented or restated from time
to time.
"TRADEMARKS" shall mean 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/or other source and/or product or service identifiers, and general
intangibles of like nature, used or associated with or appurtenant to the
products, services and business of each Grantor, including, without limitation,
(i) the Trademark Registrations which are set forth on Schedule A attached
hereto, or (ii) have been adopted, acquired, owned, held or used by either
Grantor and are now owned, held or used by either Grantor, in either Grantor's
businesses, or with either Grantor's products and services, or in which either
Grantor have any right, title or interest, or (iii) are in the future adopted,
acquired, owned, held and/or used by either Grantor in either Grantor's
businesses or with either Grantor's products and services, or in which either
Grantor in the future acquires any right, title or interest.
"TRADEMARK COLLATERAL" shall mean all of each Grantor's right, title
and interest (to the extent each Grantor has any such right, title or interest)
in and to all of the Trademarks, the Trademark Registrations, the Trademark
Rights, the Associated Goodwill, the Related Assets,
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and all additions, improvements and accessions to, substitutions for,
replacements of, and all products and Proceeds (including insurance proceeds) of
any and all of the foregoing.
"TRADEMARK REGISTRATIONS" shall mean all past, present or future
federal, state, local and foreign registrations of the Trademarks (and all
renewals and extensions of such registrations), all past, present and future
applications for any such registrations of the Trademarks (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 either Grantor or Secured Party, and to take
any and all actions necessary or appropriate to maintain such registrations in
effect and/or renew and extend such registrations.
"TRADEMARK RIGHTS" shall mean 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 but not limited to 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 either Grantor or Secured Party 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.
"USE" of any Trademark shall include all uses of such Trademark by, for
or in connection with either Grantor or their businesses or for the direct or
indirect benefit of either Grantor or their businesses, including but not
limited to all such uses by either of the Grantors themselves, by any of the
affiliates of either Grantor, or by any licensee or contractor of either
Grantor.
1.2 UCC Terms. Unless otherwise defined herein, in the Credit Agreement or
in the other Loan Documents, the terms used in Article 9 of the Uniform
Commercial Code of the State of Connecticut are used herein as therein defined.
2. GRANT OF SECURITY; COLLATERAL ASSIGNMENT.
2.1 GRANT OF SECURITY INTEREST. As collateral security for the complete and
timely payment, performance and satisfaction of all Obligations, each Grantor
hereby unconditionally grants to Secured Party a continuing security interest in
and first priority lien on the Trademark Collateral, and pledges, mortgages and
hypothecates (but does not transfer title to) the Trademark Collateral to
Secured Party.
2.2 COLLATERAL ASSIGNMENT.
(a) In addition to, and not by way of limitation of, the grant, pledge,
mortgage and
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hypothecation of the Trademark Collateral provided in Section 2.1,
each Grantor hereby grants, assigns, transfers, conveys and sets
over to Secured Party its entire right, title and interest in and
to the Trademark Collateral; provided, however, that such grant,
assignment, transfer and conveyance shall be and become of force
and effect only upon the sale or other disposition of or
foreclosure upon the Collateral pursuant to the Loan Documents and
Article 9 of the Uniform Commercial Code (including the transfer or
other disposition of the Collateral by either Grantor to Secured
Party in lieu of foreclosure). The foregoing grant, assignment,
transfer and conveyance shall be referred to from time to time
herein as the "Section 2.2 Assignment."
(b) Each Grantor expressly acknowledges to Secured Party and agrees
that on the date of this Trademark Agreement the Grantors delivered
the OI Security Agreement and the Subsidiary Security Agreement
pursuant to which each Grantor unconditionally granted to Secured
Party a continuing security interest in and first priority lien on
the Collateral (including the Trademark Collateral). The OI
Security Agreement and the Subsidiary Security Agreement and all
rights and interests of Secured Party in and to the Collateral
(including the Trademark Collateral) thereunder, are hereby
ratified, confirmed, adopted and approved. In no event shall this
Trademark Agreement, the Section 2.2 Assignment of the Trademark
Collateral 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 Loan Documents,
the security interest of Secured Party in the Collateral (including
the Trademark Collateral) pursuant to the Loan Documents, the
attachment and perfection of such security interest under the
Uniform Commercial Code, or the present or future rights and
interests of Secured Party in and to the Collateral under or in
connection with the Loan Documents, this Trademark Agreement and/or
the Uniform Commercial Code. Any and all rights and interests of
Secured Party in and to the Trademark Collateral (and any and all
obligations of each Grantor with respect to the Trademark
Collateral) provided herein, or arising hereunder or in connection
herewith, shall only supplement and be cumulative and in addition
to the rights and interests of Secured Party (and the obligations
each Grantor) in, to or with respect to the Collateral (including
the Trademark Collateral) provided in or arising under or in
connection with the Loan Documents.
2.3 EFFECT OF SECTION 2.2 ASSIGNMENT. Upon the effectiveness of the Section 2.2
Assignment, Secured Party shall own the entire right, title and interest in and
to the Trademark Collateral, free and clear of any lien, charge, encumbrance or
claim of either Grantor or any other party. Upon such effectiveness, in addition
to all other rights and remedies of Secured Party, whether under law, the Loan
Documents or otherwise (all such rights and remedies being cumulative, not
exclusive, and enforceable alternatively, successively or concurrently, without
notice to or
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consent by either Grantor except as expressly provided otherwise herein),
Secured Party's rights and remedies with respect to the Trademark Collateral,
shall include but not be limited to the following, without payment of royalty or
compensation of any kind to either Grantor except as expressly provided
otherwise herein:
(a) Secured Party may exercise, in respect of the Trademark Collateral,
all the rights and remedies of a secured party upon default under
the Uniform Commercial Code (whether or not such Code applies to
the affected Trademark Collateral) or other law applicable to any
part of the Trademark Collateral.
(b) Secured Party may operate the business of each Grantor using the
Trademark Collateral.
(c) Secured Party may, to the same extent that either Grantor has the
right to do so immediately prior to the effectiveness of the
Section 2.2 Assignment, license or sublicense, whether general,
special or otherwise and whether on an exclusive or nonexclusive
basis, any of the Trademark Collateral, throughout the world for
such term or terms, on such conditions, and in such manner, as
Secured Party shall in its sole discretion determine.
(d) Secured Party may exercise any and all rights and remedies
otherwise granted hereunder or otherwise under the OI Security
Agreement and the Subsidiary Security Agreement.
2.4 In addition to the foregoing, in order to implement the assignment, sale,
transfer or other disposition of any of the Trademark Collateral pursuant to
Section 2.3 hereof, Secured Party may, pursuant to the authority granted in the
power of attorney provided in Section 6 hereof (such authority becoming
effective upon the occurrence and during the continuation of an Event of
Default), execute and deliver on behalf of each of the Grantors one or more
instruments of assignment of the Trademark Collateral, in form suitable for
filing, recording or registration in any jurisdiction or country.
2.5 EFFECT OF SECTION 2.2 ASSIGNMENT - GRANTORS' OBLIGATIONS.
(a) Upon the effectiveness of the Section 2.2 Assignment provided
herein, neither Grantor shall have any right, title or interest in
or to any of the Trademark Collateral, and each Grantor shall
immediately cease and desist in the use of the Trademarks or any
colorable imitation thereof, and shall, upon written demand of
Secured Party, deliver to Secured Party (or Secured Party's
designee) all unused or unsold goods bearing the Trademarks. This
provision is not intended to terminate any licenses and rights
theretofore granted by either Grantor in accordance with and as
permitted by the terms of this Trademark Agreement.
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(b) In addition, upon the effectiveness of the Section 2.2 Assignment
provided herein, upon the written demand of Secured Party, each
Grantor shall execute and deliver to Secured Party an assignment or
assignments of the Trademark Collateral and such other documents as
are necessary or appropriate to carry out the intent and purposes
of this Trademark Agreement; provided that the failure of either
Grantor to comply with such demand will not impair or affect the
validity of the Section 2.2 Assignment. Each Grantor agrees that
any such assignment (including a Section 2.2 Assignment) and/or any
recording thereof shall be applied to reduce the Obligations
outstanding only to the extent that Secured Party actually receives
cash proceeds in respect of the assignment, sale, license, transfer
or disposition of, or other realization upon, the Trademark
Collateral.
2.6 NO OBLIGATIONS OF SECURED PARTY. Nothing herein contained shall be construed
as obligating Secured Party to take any of the foregoing actions at any time.
2.7 COSTS AND APPLICATION OF PROCEEDS. Each Grantor agrees to pay when due all
reasonable costs incurred in any license, assignment, sale, transfer or other
disposition of all or any portion of the Trademark Collateral to or by Secured
Party, including any taxes, fees and reasonable attorneys' fees, and all such
costs shall be added to the Obligations. Secured Party may apply the Proceeds
actually received from any such license, assignment, sale, transfer, other
disposition or other collection or realization, to the reasonable out-of-pocket
costs and expenses thereof; including, without limitation, reasonable attorneys'
fees and all reasonable legal, travel and other expenses which may be incurred
or paid by Secured Party in protecting or enforcing its rights upon or under
this Trademark Agreement, the Trademark Collateral, the Collateral or the
Obligations, and any proceeds remaining shall be held by Secured Party as
collateral for, and/or then or at any time thereafter applied to the
Obligations, in accordance with the Loan Documents; and each Grantor shall
remain liable and will pay Secured Party on demand any deficiency remaining,
together with interest thereon at a rate equal to the highest rate then payable
on the Obligations and the balance of any expenses unpaid. Any surplus of such
cash or cash proceeds held by Secured Party and remaining after payment in full
of all the Obligations shall be paid over to the Grantors or to whomsoever may
be lawfully entitled to receive such surplus.
2.8 LICENSE. In addition to, and not by way of limitation of; all other rights
of Secured Party and obligations of each of the Grantors pursuant to this
Trademark Agreement and the other Loan Documents, upon the effectuation of a
Section 2.2 Assignment, Secured Party shall hold an exclusive fully paid-up,
irrevocable and perpetual, worldwide right and license to make use, practice and
sell (or license or otherwise transfer to third persons) the Trademark
Collateral for the exclusive purpose of (and to the extent necessary and
sufficient for) the full and complete enjoyment and exercise of and realization
upon the rights, remedies and interests of the Secured Party pursuant to this
Trademark Agreement and the other Loan Documents.
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3. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
to, and covenants and agrees with, Secured Party, as follows:
3.1 SCHEDULES OF TRADEMARKS. Set forth on Schedule A hereto is a true and
complete list of all presently owned Trademarks and Trademark Registrations of
each Grantor. Schedule A comprises a true and complete list of all presently
owned Trademarks and Trademark Registrations. All other agreements applicable to
the Trademarks are the valid and binding obligations of all of the parties
thereto, enforceable against each of such parties in accordance with their
respective terms (provided that, with respect to any such parties other than the
Grantors and their affiliates, such representation and warranty is made to the
best of each of the Grantors' knowledge and belief).
3.2 TITLE. Each of the Grantors is and will continue to be the sole and
exclusive owner of the entire legal and beneficial right, title and interest in
and to the Trademarks (except for licenses and rights granted in the ordinary
course of business) and sufficient Trademark Collateral to preserve its rights
in the Trademarks, free and clear of any lien, charge, security interest or
other encumbrance, except for the security interest and conditional assignment
created by this Trademark Agreement and the other Loan Documents, and except for
liens and encumbrances explicitly permitted pursuant to the Loan Documents. To
the extent deemed necessary or appropriate by each Grantor in its reasonable
business judgment, each Grantor will defend its right, title and interests in
and to the Trademarks and the Trademark Collateral against any and all claims of
any third parties.
3.3 VALIDITY AND ENFORCEABILITY. The Trademarks and the Trademark Registrations
and Trademark Rights related thereto are subsisting, and have not been adjudged
invalid or unenforceable; to the best of each Grantor's knowledge and belief,
all of the Trademarks and the Trademark Registrations and Trademark Rights
related thereto are valid and enforceable; neither Grantor has received any
written claim by any third party that any of the Trademarks and the Trademark
Registrations and Trademark Rights related thereto are invalid or unenforceable.
3.4 EXCLUSIVE RIGHT TO USE. To the best of each Grantor's knowledge and belief,
the Grantors have, and shall continue to have, the exclusive right to use all
the Trademarks in the manner in which they are now used, with the goods and
services with which they are now used (and, in the case of registered
Trademarks, for which they are registered), and throughout the geographic areas
in which they are now used (and, in the case of registered Trademarks,
throughout the jurisdictions in which they are registered), free and clear of
any liens, charges, encumbrances, claims or rights of any third party, or
restrictions on the rights of each Grantor to protect or enforce any of its
Trademark Rights against any third party.
3.5 NO FINANCING STATEMENTS. ETC. There is not on file in any governmental or
regulatory authority, agency or recording office, in the United States or to
either Grantor's knowledge in any foreign country, any effective financing
statement, security agreement, assignment, license
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or transfer or notice of any of the foregoing (other than those that have been
filed in favor of Secured Party) covering any of the Trademark Collateral, and
neither Grantor is aware of any such filing, other than those for which duly
executed termination statements have been delivered to Secured Party. So long as
this Trademark Agreement shall be in effect, neither Grantor shall execute or
knowingly permit to be on file in any such office or agency any such financing
statement or other document or instrument (except financing statements or other
documents or instruments filed or to be filed in favor of Secured Party).
3.6 AFTER-ACQUIRED TRADEMARK COLLATERAL. Each Grantor agrees that, upon its
commencement of Use of or acquisition of any right, title or interest in or to
any Trademark, Trademark Registration or Trademark Right (including any
variations or new versions of such scheduled Trademarks, Trademark Registrations
and Trademark Rights), or upon commencement of Use of any Trademark with (or the
addition to any Trademark Registration of) any new class of goods or services,
the provisions of this Trademark Agreement shall automatically apply thereto.
Secured Party shall be authorized to amend Schedule A as appropriate, to include
additional Trademark Registrations without the necessity for either Grantor's
approval of or signature to such amendment, and each Grantor shall do all such
other acts (at its own expense) deemed necessary or appropriate by Secured Party
to implement and preserve Secured Party's interest therein (including but not
limited to executing and delivering, and recording in all places where this
Trademark Agreement or notice hereof is recorded, an appropriate counterpart of
this Trademark Agreement). Any additional Trademarks, Trademark Registrations
and Trademark Rights shall be automatically included in the "Trademarks,"
"Trademark Registrations" and "Trademark Rights" as defined herein. Upon the
registration of a new Trademark, each of the Grantors shall provide to Secured
Party a new Schedule A which shall amend, supplement or otherwise modify and
update the prior Schedule to the then current date, and such updated Schedule A
shall automatically be deemed to be a part of this Trademark Agreement.
4. RIGHTS OF AND LIMITATIONS ON SECURED PARTY. It is expressly agreed by
each of the Grantors that each Grantor shall remain liable to observe and
perform all the conditions and obligations to be observed and performed by it
relating to the Trademark Collateral. Secured Party shall not have any
contractual obligation or liability under or in relation to the Trademark
Collateral by reason of, or arising out of, this Trademark Agreement and Secured
Party's rights hereunder, or the assignment by each of the Grantors to Secured
Party of, or the receipt by Secured Party of, any payment relating to any
Trademarks, nor shall Secured Party be required or obligated in any manner to
perform or fulfill any of the obligations of either Grantor relating to the
Trademark Collateral or be liable to any party on account of either Grantor's
use of the Trademark Collateral, and each of the Grantors will save, indemnify
and keep Secured Party harmless from and against all expense, loss or damage
(including reasonable attorneys fees and expenses) suffered in connection with
such obligations or use or suffered in connection with any suit, proceeding or
action brought by Secured Party in connection with any Trademark Collateral.
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5. PRESERVATION OF TRADEMARK COLLATERAL; COOPERATION OF THE GRANTORS.
Without limiting the obligations of each Grantor under the Loan Documents, each
Grantor shall take such actions as are necessary to preserve and maintain its
rights in and to the Trademark Collateral. Upon the request of Secured Party,
each Grantor shall execute, acknowledge and deliver all documents and
instruments and take such other actions, including without limitation testifying
in any legal or administrative proceedings, as may be necessary or desirable to
preserve or enforce its rights in and to the Trademark Collateral or to
accomplish the purposes of this Trademark Agreement or the other Loan Documents.
6. SECURED PARTY'S APPOINTMENT AS ATTORNEY-IN-FACT.
6.1 APPOINTMENT OF SECURED PARTY. Each Grantor hereby irrevocably constitutes
and appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of the
Grantor or in its own name, from time to time in Secured Party's discretion, for
the purpose of carrying out the terms of this Trademark Agreement, to take any
and all appropriate action and to execute any and all documents and instruments
that may be necessary or desirable to accomplish the purposes of this Trademark
Agreement and, without limiting the generality of the foregoing, hereby gives
Secured Party the power and right, on behalf of the Grantor upon and during the
continuance of an Event of Default, without notice to or assent by the Grantor,
to do the following:
(a) to apply for and prosecute any applications for recording or
registrations of any Trademark Collateral, and to file any
affidavits or other documents necessary or desirable to preserve,
maintain or renew any such registrations;
(b) to assign, sell or otherwise dispose of all or any part of the
Grantor's right, title and interest in and to the Trademark
Collateral, including without limitation the Trademarks listed on
Schedule A, and all registrations and recordings thereof and
pending applications therefor, provided that Secured Party will
give the Grantor not less than ten (10) days' prior written notice
of the time and place of any sale or intended deposition thereof in
accordance with the OI Security Agreement and the Subsidiary
Security Agreement of even date between the Grantors and Secured
Party;
(c) to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to enforce any
right in respect of any Trademark; to defend any suit, action or
proceeding brought against the Grantor with respect to any
Trademark Collateral; to settle, compromise or adjust any suit,
action or proceeding described above and, in connection therewith,
to give such discharges or releases as Secured Party may deem
appropriate;
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(d) to sell, transfer, pledge, make any agreement with respect to or
otherwise deal with any of the Trademarks as fully and completely
as though Secured Party were the absolute owner thereof for all
purposes provided that Secured Party will give the Grantor not less
than ten (10) days' prior written notice of the time and place of
any sale or intended deposition thereof in accordance with the OI
Security Agreement and the Subsidiary Security Agreement of even
date between the Grantors and Secured Party;
(e) to do, at Secured Party's option and the Grantor's expense, at any
time or from time to time, all acts and things that Secured Party
deems necessary to protect, preserve or realize upon the Trademark
Collateral and Secured Party's security interests therein, in order
to effect the intent of this Trademark Agreement; and
(f) to execute any and all documents, statements, certificates or other
writings necessary or advisable in order to effect the purposes
described above as Secured Party may in its sole discretion
determine.
Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
6.2 NO DUTY OR OBLIGATION. The powers conferred on Secured Party hereunder are
solely to protect the interests of Secured Party in the Trademark Collateral and
shall not impose any duty upon Secured Party to exercise any such powers.
Secured Party shall be accountable only for amounts that it actually receives as
a result of the exercise of such powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible to either of the Grantors
for any act or failure to act, except for its own willful misconduct taken or
omitted in bad faith.
7. PERFORMANCE BY SECURED PARTY OF THE GRANTORS' OBLIGATIONS,
INDEMNIFICATION.
7.1 SECURED PARTY'S ACTIONS. If either Grantor fail to perform or comply with
any of their agreements contained herein and Secured Party, as provided for by
the terms of this Trademark Agreement, shall itself perform or comply, or
otherwise cause performance or compliance, with such agreement, the expenses of
Secured Party incurred in connection with such performance or compliance shall
be paid by either of the Grantors on demand and until so paid shall be added to
the principal amount of the Obligations and shall bear interest at the same rate
as the Obligations under the Loan Documents.
7.2 INDEMNIFICATION. Each Grantor shall indemnify and hold harmless Secured
Party from and against, and shall pay to Secured Party on demand, any and all
claims, actions, suits, judgments, penalties, losses, damages, costs,
disbursements, expenses, obligations or liabilities
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of any kind or nature (except those resulting from Secured Party's gross
negligence or willful misconduct) arising in any way out of or in connection
with this Trademark Agreement, the Trademark Collateral, custody, preservation,
use, operation, sale, license (or other transfer or disposition) of the
Trademark Collateral, any alleged infringement of the intellectual property
rights of any third party, the production, marketing, delivery and sale of the
goods and services provided under or in connection with any of the Trademarks or
the Trademark Collateral, the sale of, collection from or other realization upon
any of the Trademark Collateral, the failure of either Grantor to perform or
observe any of the provisions hereof, or matters relating to any of the
foregoing. Each Grantor shall also indemnify and hold harmless Secured Party
against any claims, actions, suits, judgments, penalties, losses, damages,
costs, disbursements, expenses, obligations or liabilities arising out of or in
connection with any fault, negligence, act or omission of either Grantor
(regardless of whether such fault, negligence, act or omission occurred or
occurs prior to or after such effectiveness). Neither Grantor shall make any
claim against Secured Party for or in connection with the exercise or
enforcement by Secured Party of any right or remedy granted to it hereunder, or
any action taken or omitted to be taken by Secured Party hereunder (except for
the gross negligence or willful misconduct of Secured Party).
8. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an Event of Default:
(a) The failure of either Grantor to pay any amount on the date or in
the manner required hereunder;
(b) The default of either Grantor in the due performance or observance
of any other covenant, condition or provision to be performed or
observed by it hereunder; or
(c) The occurrence of an Event of Default under the Loan Documents.
9. REMEDIES, RIGHTS UPON DEFAULT. If an Event of Default occurs and is
continuing:
(a) Secured Party may exercise for the benefit of Secured Party, in
addition to all other rights and remedies granted in the Loan
Documents, in this Trademark Agreement, and in any other instrument
or agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the UCC.
(b) Secured Party may exercise, with respect to the Trademark
Collateral, all of the rights and remedies granted to it under the
OI Security Agreement and the Subsidiary Security Agreement with
respect to the Collateral (as defined therein).
12
(c) To the extent that it may lawfully do so, each Grantor agrees that
it will not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or of any appraisement,
valuation, stay, extension or redemption laws, or any law
permitting it to direct the order in which the Trademarks or any
part thereof shall be sold, now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance or
enforcement of this Trademark Agreement or the Obligations and
hereby expressly waives all benefit or advantage of any such laws
and covenants that it will not hinder, delay or impede the
execution of any power granted or delegated to Secured Party in
this Trademark Agreement, but will suffer and permit the execution
of every such power as though no such laws were in force.
(d) Each Grantor shall be responsible for any and all expenses,
including reasonable attorneys' fees and expenses, incurred or paid
by Secured Party in protecting or enforcing any rights of Secured
Party hereunder. Secured Party shall also have the right to pay all
other sums deemed necessary or desirable by it for the preservation
and protection of the Trademarks, or for the realization thereupon,
including taxes, insurance, application and renewal fees, and any
other fees or costs. All such sums so paid by Secured Party shall
be "Obligations" within the meaning of this Trademark Agreement,
due upon demand.
10. NOTICES. Except as otherwise specified herein, all notices, requests,
demands or other communications to or on either Grantor or Secured Party shall
be in writing (including teletransmissions), and shall be given or made as
provided in the Loan Documents.
11. SEVERABILITY. Any provision herein that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. NO WAIVER OF RIGHTS. No failure to exercise nor any delay in
exercising, on the part of Secured Party, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power, or privilege operate as a waiver of any
further or complete exercise thereof. No waiver shall be effective unless in
writing. No waiver or condonation of any breach on one occasion shall be deemed
a waiver or condonation on any other occasion.
13. CUMULATIVE REMEDIES. This Trademark Agreement and the obligations of
each of the Grantors hereunder are in addition to and not in substitution for
any other obligations or security interests now or hereafter held by Secured
Party and shall not operate as a merger of any contract or debt or suspend the
fulfillment of or affect the rights, remedies, powers, or privileges
13
of Secured Party in respect of any obligation or other security interest held by
it for the fulfillment thereof. The rights and remedies provided hereunder are
cumulative and not exclusive of any other rights or remedies provided by law or
under the Loan Documents.
14. SPECIFIC ENFORCEMENT. Due to the unique nature of the Trademark
Collateral, and in order to preserve its value, each of the Grantors agrees that
the Grantors' agreements, duties and obligations under this Trademark Agreement
shall be subject to specific enforcement and other appropriate equitable orders
and remedies.
15. SUCCESSORS. This Trademark Agreement shall be binding upon and inure
to the benefit of the Grantors, Secured Party and their respective successors
and assigns, except that neither Grantor may assign or transfer its rights or
obligations hereunder without the prior written consent of Secured Party.
Secured Party may from time to time assign its rights and delegate its
obligations, in which event each Grantor shall only have recourse to the
assignee for the performance of Secured Party's obligations that have been so
delegated.
16. GOVERNING LAW. This Trademark Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
Connecticut without reference to its choice or conflict of laws, rules or
principles.
17. COUNTERPARTS. This Trademark Agreement may be executed by one or more
of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
18. DESCRIPTIVE HEADINGS. The captions in this Trademark Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
19. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, OR AS TO THE
VALIDITY, PROTECTION, INTERPRETATION, ADMINISTRATION, COLLECTION OR ENFORCEMENT
HEREOF OR THEREOF OR PURSUANT TO THE LOAN DOCUMENTS, OR ANY OTHER CLAIM OR
DISPUTE HOWSOEVER ARISING BETWEEN GRANTORS AND AGENT.
20. SUBMISSION TO JURISDICTION; WAIVERS. THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY: (A) SUBMIT FOR THEMSELVES AND THEIR PROPERTY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS TRADEMARK AGREEMENT AND THE
OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NONEXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF CONNECTICUT, THE COURTS OF THE UNITED
STATES
14
OF AMERICA FOR THE DISTRICT OF CONNECTICUT, AND APPELLATE COURTS FROM ANY
THEREOF; AND (B) CONSENT THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREE NOT TO PLEAD OR CLAIM
THE SAME.
IN WITNESS WHEREOF, each Grantor has caused this Trademark Agreement to
be executed by its duly authorized officer as of the date first written above.
Witness: OUTSOURCE FRANCHISING, INC.
/s/ [ILLEGIBLE] /s/ XXXXXX XXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK FEBRUARY 21, 1997
Then personally appeared the above-named XXXXXX XXXXXXX and stated
that he is a duly authorized officer of OutSource Franchising, Inc., and
acknowledged the foregoing to be his free act and deed and the free act and deed
of said corporation, before me,
/s/ XXXXXXXX X. XXXXXX
---------------------------------
XXXXXXXX X. XXXXXX
MY COMMISSION EXPIRES 12/2/99
15
IN WITNESS WHEREOF, each Grantor has caused this Trademark Agreement to
be executed by its duly authorized officer as of the date first written above.
Witness: OUTSOURCE INTERNATIONAL, INC.
/s/ [ILLEGIBLE] /s/ XXXXXX XXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK FEBRUARY 21, 1997
Then personally appeared the above-named XXXXXX XXXXXXX and stated
that he is a duly authorized officer of OutSource International Inc., and
acknowledged the foregoing to be his free act and deed and the free act and deed
of said corporation, before me,
/s/ XXXXXXXX X. XXXXXX
---------------------------------
XXXXXXXX X. XXXXXX
MY COMMISSION EXPIRES 12/2/99
16
SCHEDULE A
TRADEMARKS, TRADEMARK REGISTRATIONS, SERVICE MARKS
A. OUTSOURCE FRANCHISING, INC.:
TRADEMARKS REGISTERED AT FEDERAL LEVEL:
------------------------------------------------------------------------------------------------------------------------------
TRADEMARK REEL AND FRAME DATE RECORDED REGISTRATION SERIAL NUMBER
NUMBER
------------------------------------------------------------------------------------------------------------------------------
LABOR WORLD 1410/0413 November 17, 1995 1,956,465 74-657,768
------------------------------------------------------------------------------------------------------------------------------
LABOR WORLD 1410/0413 November 17, 1995 1,843,149 74-403,910
------------------------------------------------------------------------------------------------------------------------------
OFFICE OURS 1410/0413 November 17, 1995 1,976,113 74-626,313
Design only
------------------------------------------------------------------------------------------------------------------------------
SYNADYNE Pending - Published 74-703,925
for Opposition
(Applicant is
OutSource
Franchising, Inc.)
------------------------------------------------------------------------------------------------------------------------------
SYNADYNE 1410/0413 November 17, 1995 1,960,796 74-467,584
------------------------------------------------------------------------------------------------------------------------------
SYNADYNE A Pending - Published 74-721,079
PROFESSIONAL for Opposition
EMPLOYER (Applicant is
OutSource
Franchising, Inc.)
------------------------------------------------------------------------------------------------------------------------------
Design only Pending; Approval 74-704,231
for Publication
------------------------------------------------------------------------------------------------------------------------------
HIGH Pending; Response 74-703,943
EFFICIENCY after Non-Final
STAFFING Action - Entered
SOLUTIONS
------------------------------------------------------------------------------------------------------------------------------
OFFICE OURS 1410/0413 November 17, 1995 2,009,427 74-608,271
------------------------------------------------------------------------------------------------------------------------------
LABOR 1410/0413 November 17, 1995 Pending; Published 74-594,038
TECHNOLOGIES for Opposition;
Statement of Intent
to Use -
Application; Intent
to Use - Current
------------------------------------------------------------------------------------------------------------------------------
OFFICE HOURS 1427/0357 January 29, 1996 1,834,868 74-271, 823
PLUS
------------------------------------------------------------------------------------------------------------------------------
TANDEM Applied for on
2/11/97
------------------------------------------------------------------------------------------------------------------------------
TRADEMARKS REGISTERED AT STATE LEVEL:
NONE
B. OUTSOURCE INTERNATIONAL, INC.:
TRADEMARKS REGISTERED AT FEDERAL LEVEL:
------------------------------------------------------------------------------------------------------------------------------
TRADEMARK REEL AND FRAME DATE RECORDED REGISTRATION SERIAL NUMBER
NUMBER
------------------------------------------------------------------------------------------------------------------------------
OUTSOURCE 1410/0410 November 17, 1995 2,009,431 74-609,128
INTERNATIONAL
THE LEADER IN
HUMAN
RESOURCES
------------------------------------------------------------------------------------------------------------------------------
OUTSOURCE 1410/0410 November 17, 1995 Pending: Non-Final 74-608,270
INTERNATIONAL Action - Mailed;
Intent to Use -
Application
------------------------------------------------------------------------------------------------------------------------------
OSI Pending - Published 75-034,925
for Opposition;
Registration Review
Complete; Intent to
Use - Application;
Intent to Use -
Current
------------------------------------------------------------------------------------------------------------------------------
TRADEMARKS REGISTERED AT STATE LEVEL:
(1) OUTSOURCE INTERNATIONAL THE LEADER IN HUMAN RESOURCES
Registered in: STATE DATE REGISTERED REGISTRATION NUMBER
----- --------------- -------------------
Alabama 8/30/96 106,818
California 7/18/96 46,338
Connecticut 11/4/96 10,058
Florida 8/5/96 T96,912
Georgia 6/21/96 S15,761
Idaho 6/21/96 15,373
Illinois 6/27/96 78,646
Indiana 6/27/96 50,103,871
Kentucky 6/20/96 11,298
Louisiana 6/20/96 N/A
Massachusetts 8/23/96 53,157
Michigan 8/15/96 M01,254
Minnesota 6/24/96 25,108
2
Mississippi 7/2/96 N/A
Missouri 6/21/96 S13,639
Nevada 8/9/96 Filing Book: 29 page 295
New Hampshire 8/6/96 Filing Book: 92 page 121
New Jersey 8/6/96 S,M14,112
Ohio 9/9/96 S,M69,770
Oregon 6/28/96 S30,703
South Carolina 8/20/96 N/A
Tennessee 8/14/96 N/A
Virginia 8/22/96 3358
(2) OUTSOURCE INTERNATIONAL
Registered in: STATE DATE REGISTERED REGISTRATION NUMBER
----- --------------- -------------------
Utah 8/12/96 36,604
3
