TRADEMARK SECURITY AGREEMENT
EXECUTION
COPY
THIS
TRADEMARK SECURITY AGREEMENT (the “Agreement”)
made
as of this 20th
day of
November, 2008 by Embark Corp., a Delaware corporation (“Grantor”),
in
favor of VIKING ASSET MANAGEMENT, LLC, a California limited liability company,
in its capacity as Collateral Agent for the benefit of itself and each of the
Buyers (as hereinafter defined) (together with its successors and assigns in
such capacity, “Grantee”):
WITNESSETH
WHEREAS,
on
October 19, 2007, Longview Marquis Master Fund, L.P., a British Virgin Islands
limited partnership (including as successor to The Longview Fund, L.P., a
California limited partnership, under the Purchase Agreement (as defined below),
“Marquis”;
Marquis, together with its successors and assigns and each other holder of
a
Note (as defined below) and their respective successors and assigns,
individually and collectively, the “Buyers”)
purchased from MRU Holdings, Inc., a Delaware corporation (the “Company”),
those certain senior secured notes, each dated October 19, 2007, in an original
aggregate principal amount of $11,200,000 (such
notes, together with any promissory notes or other securities issued in exchange
or substitution therefor or replacement thereof, and as any of the same may
be
amended, supplemented, restated or modified and in effect from time to time,
the
“Notes”);
WHEREAS,
the Notes were acquired by Buyers and Buyers made certain financial
accommodations to the Company pursuant to a Securities Purchase Agreement dated
as of October 19, 2007 among the Company and the Buyers (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
“Purchase
Agreement”);
WHEREAS,
Company, Grantor, the other entities party thereto as “Included Subsidiaries,”
Buyers and Grantee have entered into that certain Third Amendment of even date
herewith (as the same may be amended, restated, supplemented or otherwise
modified and in effect from time to time, the “Third
Amendment”),
pursuant to which the Company and the Buyers have agreed to amend certain
provisions of the Purchase Agreement;
WHEREAS,
Grantor is an indirect subsidiary of the Company and, as such, will derive
substantial benefit and advantage from the continued financial accommodations
to
the Company set forth in the Purchase Agreement and the Notes, and it will
be to
Grantor’s direct interest and economic benefit to assist the Company in
continuing to procure said financial accommodations from Buyers;
WHEREAS,
pursuant
to a Guaranty dated as of October 19, 2007 by and among Grantor, the other
entities party thereto as “Guarantors” in favor of Grantee (as the same may be
amended, restated, supplemented or otherwise modified and in effect from time
to
time, the “Guaranty”),
Grantor has guaranteed the Obligations (as defined therein) in favor of Grantee
(on its behalf and on behalf of the Buyers);
and
WHEREAS,
pursuant to the terms of a certain Security Agreement of even date herewith
between Grantor and Grantee (as the same may be amended or otherwise modified
from time to time, the “Security
Agreement”),
Grantor has granted to Grantee, for the benefit of Grantee and the Buyers,
a
security interest in substantially all of the assets of Grantor including all
right, title and interest of Grantor in, to and under all now owned and
hereafter acquired Trademarks (as defined in the Security Agreement), Trademark
registrations, Trademark applications and Trademark licenses, together with
the
goodwill of the business symbolized by Grantor’s Trademarks, and all products
and proceeds thereof; and
WHEREAS,
to induce the Buyers to continue to make financial accommodations to the Company
under the Purchase Agreement and to enter into the Third Amendment, Grantor
has
agreed to pledge and grant a security interest in all of its right, title and
interest in and to the Trademark Collateral (as hereinafter defined) as security
for its Liabilities (as defined in the Security Agreement) for the benefit
of
the Grantee, the Buyers and their respective successors and
assigns.
NOW,
THEREFORE, in consideration of the premises set forth herein and for other
good
and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, Grantor agrees as follows:
1. Incorporation
of Security Agreement.
The
Security Agreement and the terms and provisions thereof are hereby incorporated
herein in their entirety by this reference thereto. All terms capitalized but
not otherwise defined herein shall have the same meanings herein as in the
Security Agreement.
2. Grant
and Reaffirmation of Grant of Security Interests.
To
secure the payment and performance of the Liabilities, Grantor hereby grants
to
Grantee, for its benefit and the benefit of Buyers, and hereby reaffirms its
prior grant pursuant to the Security Agreement of, a continuing security
interest in Grantor's entire right, title and interest in and to the following
(all of the following items or types of property being herein collectively
referred to as the “Trademark
Collateral”),
whether now owned or existing or hereafter created, acquired or
arising:
(i) each
Trademark, Trademark registration and Trademark application, including, without
limitation, the Trademarks, Trademark registrations (together with any reissues,
continuations or extensions thereof) and Trademark applications referred to
in
Schedule 1 annexed hereto, and all of the goodwill of the business connected
with the use of, and symbolized by, each Trademark, Trademark registration
and
Trademark application;
(ii) each
Trademark license and all of the goodwill of the business connected with the
use
of, and symbolized by, each Trademark license; and
(iii) all
products and proceeds of the foregoing, including without limitation, any claim
by Grantor against third parties for past, present or future (a) infringement
or
dilution of any Trademark or Trademark registration including, without
limitation, the Trademarks and Trademark registrations referred to in Schedule
1
annexed hereto, the Trademark registrations issued with respect to the Trademark
applications referred in Schedule 1 and the Trademarks licensed under any
Trademark license, or (b) injury to the goodwill associated with any Trademark,
Trademark registration or Trademark licensed under any Trademark
license.
[Signature
Page Follows]
IN
WITNESS WHEREOF, Grantor has duly executed this Agreement as of the date first
written above.
EMBARK
CORP.
/s/
Xxxxxx Xxxx
By:
Xxxxxx Xxxx
Its:
Chief Executive Officer
Agreed
and Accepted
As
of the
Date First Written Above
VIKING
ASSET MANAGEMENT L.L.C., a California limited liability company, in its capacity
as collateral agent for the Buyers
By:
/s/
S.
Xxxxxxx Xxxxxxx
Name: S.
Xxxxxxx Xxxxxxx
Title: Chief
Financial Officer
