AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
THIS AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT (this
"AGREEMENT"), dated as of June 30, 2000, is between Option Care, Inc., a
California corporation (the "GRANTOR"), and Bank of America, N.A., as the
Lenders' Agent (the "LENDERS' AGENT").
WITNESSETH:
WHEREAS, the Grantor and the Lenders' Agent are entering into an
Amended and Restated Loan and Security Agreement dated the same date as this
Agreement (as amended, amended and restated or otherwise modified from time to
time, the "LOAN AND SECURITY AGREEMENT") with the other parties thereto;
WHEREAS, the Grantor is party to that certain Trademark Security
Agreement dated as of February 5, 1999 (the "EXISTING TRADEMARK SECURITY
AGREEMENT"); and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in order to induce the Lenders
to make Loans pursuant to the Loan and Security Agreement, the Grantor agrees
to amend and restate the Existing Trademark Security Agreement, for the
benefit of the Lenders and the Lenders' Agent, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided in the Loan and Security Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, and for the benefit of the Lenders and the
Lenders' Agent: the Grantor does hereby mortgage, pledge and hypothecate to the
Lenders' Agent, and grant to the Lenders' Agent a security interest in, all of
the following property (the "TRADEMARK COLLATERAL"), whether now owned or
hereafter acquired or existing:
(a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service
marks, certification marks, collective marks, logos, other source of
business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of a like
nature (all of the foregoing items in this CLAUSE (a) being
collectively called a "TRADEMARK"), now existing anywhere in the world
or hereafter adopted or acquired, whether currently in use or not, all
registrations and recordings thereof and all applications in connection
therewith, whether pending or in preparation for filing, including
registrations, recordings and applications in the United States Patent
and Trademark Office or in any office or agency of the United States of
America or any State thereof or any foreign country, including those
refereed to in ATTACHMENT 1 hereto;
(b) all Trademark licenses, including any Trademark license
referred to in ATTACHMENT 1 hereto;
(c) all reissues, extensions or renewals of any of the items
described in CLAUSES (a) and (b);
(d) all of the goodwill of the business connected with the
use of, and symbolized by the items described in, CLAUSES (a) and (b);
and
(e) all proceeds of, and rights associated with, the
foregoing, including any claim by the Grantor against third parties for
past, present, or future infringement or dilution of any Trademark,
Trademark registration, or Trademark license, including any Trademark,
Trademark registration or Trademark license referred to an ATTACHMENT 1
hereto, or for any injury to the goodwill associated with the use of
any Trademark or for breach or enforcement of any Trademark license.
SECTION 3. LOAN AND SECURITY AGREEMENT. This Agreement has been
executed and delivered by the Grantor for the purpose of registering the
security interest of the Lenders' Agent in the Trademark Collateral with the
United States Patent and Trademark Office and corresponding offices in other
countries of the world. The security interest granted hereby has been granted
as a supplement to, and not in limitation of, the security interest granted to
the Lenders' Agent under the Loan and Security Agreement. The Loan and Security
Agreement (and all rights and remedies of the Lenders' Agent thereunder) shall
remain in full force and effect in accordance with its terms.
SECTION 4. RELEASE OF SECURITY INTEREST. Upon payment in full of all
Obligations and the termination of the Loan and Security Agreement, the Lenders'
Agent shall, at the Grantor's expense, execute and deliver to the Grantor all
instruments and other documents as may be necessary or proper to release the
lien on the security interest in the Trademark Collateral which has been granted
hereunder.
SECTION 5. REPRESENTATIONS AND WARRANTIES; COVENANTS. The Grantor
represents and warrants to, and the Grantor covenants with, the Lenders' Agent
that: (a) all Trademark Collateral is and shall continue to be owned by Grantor
free and clear of all Liens whatsoever, except for the Security Interest and
other Permitted Liens; (b) the Security Interest in the Trademark Collateral is
not and shall not be subject to any prior Lien; and (c) the Grantor shall not,
without the Lenders' Agent's prior written consent, sell, lease or dispose of or
permit the sale or disposition of the Trademark Collateral or any portions
thereof.
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SECTION 6. ACKNOWLEDGMENT. The Grantor does hereby further
acknowledge and affirm that the rights and remedies of the Lenders' Agent
with respect to the security interest in the Trademark Collateral granted
hereby are more fully set forth in the Loan and Security Agreement, the terms
and provisions of which (including the remedies provided for therein) are
incorporated by reference herein as if fully set forth herein.
SECTION 7. LOAN DOCUMENT, ETC. This Agreement is a Loan Document
executed pursuant to the Loan and Security Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied
in accordance with the terms and provisions of the Loan and Security
Agreement.
SECTION 8. COUNTERPARTS. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 9. EFFECT ON EXISTING TRADEMARK SECURITY AGREEMENT. This
Agreement amends and restates the Existing Trademark Security Agreement
effective as of the date of this Agreement. This Agreement shall not effect a
novation of the obligations of the parties to the Existing Trademark Security
Agreement, but instead shall be merely a restatement and, where applicable,
an amendment of the terms governing such obligations. The parties hereto
hereby affirm, ratify and confirm all transactions pursuant to the Existing
Trademark Security Agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
OPTION CARE, INC., a California
corporation
By /s/ Xxxxx Xxx
-------------------------------------
Name: Xxxxx Xxx
Title: President
BANK OF AMERICA, N.A., as Lenders' Agent
By
-------------------------------------
Vice President
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ATTACHMENT 1
Registered Trademarks*
------------------------------------------------------
Country Trademark Registration No. Registration Date
------- ----------- ---------------- -----------------
United States of America OPTION CARE 1,331,421 April 16, 0000
Xxxxxx Xxxxxx of America O.P.T.I.O.N. 1,562,796 October 24, 1989
CARE
United States of America OPTIONET 1,604,898 July 3, 0000
Xxxxxx Xxxxxx xx Xxxxxxx BILLING PLUS 1,694,125 June 16, 0000
Xxxxxx Xxxxxx xx Xxxxxxx FOCIS 1,778,323 June 22, 0000
Xxxxxx Xxxxxx xx Xxxxxxx OPTION CARE 1,804,925 November 16, 0000
XXX XXXXXX
Xxxxxx Xxxxxx xx Xxxxxxx ADDISON 2,179,767 August 4, 0000
Xxxxxx Xxxxxx xx Xxxxxxx FROG Logo 2,201,367 November 3, 0000
Xxxxxx Xxxxxx xx Xxxxxxx ADDISON ASTHMA 2,179,768 August 4, 0000
XXXXXXX
Xxxxxx Xxxxxx xx Xxxxxxx OPTION ONE 2,265,209 July 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx ANY PATIENT, 2,149,462 April 7, 1998
ANY SERVICE,
ANYWHERE
United States of America OPTION CARE 1,728,451 October 27, 1992
and Design
---------------
* The Separate registration of "Option Care" in the United States of America as
registration number 1,572,579 on December 19, 1989, has been cancelled.
0
Xxxxxx Xxxxxx xx Xxxxxxx OPTION CARe 1,331,421 April 16, 1985*
United States of America WE HAVE THE 1,336,094 May 14, 1985
SOLUTION FOR
YOU
United States of America OPTIONET 2,068,555 June 10, 0000
Xxxxxx Xxxxxx xx Xxxxxxx OPTION CARE 2,073,162 June 24, 0000
Xxxxxx Xxxxxx xx Xxxxxxx MISCELLANEOUS 2,329,601 March 14, 2000
DESIGN
United States of America SAMSON AND 2,343,457 April 18, 0000
XXXXX XXXXXX
Xxxxxx Xxxxxx of America SAMSON AND 2,343,460 April 18, 0000
XXXX XXXXXX
Xxxxxx Xxxxxx of America ADDISON 2,348,785 May 9, 0000
Xxxxxx Xxxxxx xx Xxxxxxx ADDISON ASTHMA 2,348,784 May 9, 2000
PROGRAM
China OPTION CARE 1,213,878 October 7, 0000
Xxxxxx Xxxxxx xx Xxxxxxx JEOP-BIRD-DY 2,221,698 February 2, 0000
Xxxxxx Xxxxxx of America SOAR TO NEW 2,221,699 February 2, 1999
HEIGHTS
United States of America SAMSON 2,221,696 February 2, 0000
Xxxxxx Xxxxxx xx Xxxxxxx SAMSON AND 2,221,694 February 2, 1999
DESIGN
United States of America SAMSON AND 2,221,695 February 2, 0000
XXXXXX
Xxxxxx Xxxxxx xx Xxxxxxx "Miscellaneous 2,221,697 Date Applied for:
Design" February 2, 1999
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United States of America "Miscellaneous 2,218,959 Date Applied for:
Design" January 19, 0000
Xxxxxx Xxxxxx of America SAMSON 2,343,458 April 18, 0000
Xxxxxx Xxxxxx xx Xxxxxxx WE HAVE THE 1,336,094 May 14, 1985
SOLUTION FOR
YOU
Japan OPTION CARE 4094083 December 19, 0000
Xxxxxxxxx OPTION CARE 729029 November 28, 1997
Hong Kong OPTION CARE B12328/1999 October 12, 0000
XXXXXX XXXXXX XX XXXXXXX SAMSON AND 2,221,695 February 2, 1999
PAW PRINT
design
Hungary OPTION CARE 159,390 April 1, 1999
California OPTION ONE 047502 March 7, 1997
California OPTION CARE 047596 March 25, 1997
Pending Trademark Applications
---------------------------------------------------------
Country Trademark Application No. Filing Date
------- ---------------- ---------------- -----------------
United States of America THE RIGHT 75/440,761 Date Applied for:
OPTION February 17, 0000
Xxxxxx Xxxxxx of America FANCIFUL 75/359,373 Date Applied for:
DESIGNS, as September 18, 1997
applied to
Pediatric Growth
Hormone Program
United States of America THE BEST OPTION 75/511,504 Date Applied for:
July 1, 0000
Xxxxxx Xxxxxx xx Xxxxxxx FANCIFUL design, 2,218,959 Date Applied for:
as applied to January 19, 1999
Pediatric Growth
Hormone Program
United States of America XXXXXXXXXX.XXX 75/673,104 Date Applied for:
April 2, 1999
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United States of America SOAR TO NEW 75/716,256 Date Applied For:
HEIGHTS May 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx CLAN DESIGN 75/716,209 Date Applied for:
May 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx EAGLE DESIGN 75/716,229 May 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx XXXX XXXXXX 75/716,289 May 27, 1999
(Design)
United States of America XXXX XXXXXX 75/716,291 May 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx EMMY (Design) 75/716,179 May 27, 0000
Xxxxxx Xxxxxx of America EMMY 75/716,290 May 27, 0000
Xxxxxx Xxxxxx of America BEYOND 75/739,008 June 29, 0000
XXXXXXXXXX
Xxxxxx Xxxxxx xx Xxxxxxx C.A.R.E. PROGRAM 75/739,009 June 29, 1999
Chili OPTION CARE 457,422 Xxxxxx 0, 0000
Xxxxxx Xxxxxx xx Xxxxxxx XXXXXXXX.XXX 75/879,710 December 22, 0000
Xxxxxxxxx OPTION CARE 2,277,224 March 29, 0000
Xxxxxx Xxxxxx xx Xxxxxxx OPTION MED 76/037,307 April 27, 0000
Xxxxxx Xxxxxx xx Xxxxxxx OPTION MED 76/046,350 May 10, 0000
Xxxxxxxxx OPTION CARE File #S/2739/97 File Date Xxxxx 00,
0000
Xxxxxx OPTION CARE Z199347 Xxxxx 00, 0000
Xxxxxx OPTION CARE 126902 April 5, 1999
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