COLLATERAL GRANT OF SECURITY INTEREST IN COPYRIGHTS
Execution
Version
This
Collateral Grant of Security Interest in Copyrights (this “Agreement”)
is
made as of this 28th day of September, 2007, by each of Diomed Holdings, Inc.,
a
Delaware corporation, and Diomed, Inc., a Delaware corporation (each a
“Grantor”,
and
collectively, the “Grantors”),
for
the benefit of Hercules Technology Growth Capital, Inc., a Maryland corporation
(“Grantee”).
WHEREAS,
Grantors own an interest in Copyrights (as defined in the Loan Agreement (as
defined below)) and are, whether individually or collectively, party to
Copyright Licenses to which it is a party (as defined in the Loan Agreement)
listed on Schedule
I;
and
WHEREAS,
pursuant to that certain Loan and Security Agreement dated as of September
28,
2007, and related Notes (as defined therein) (collectively, the “Loan
Agreement”),
each
Grantor has granted to Grantee a security interest in all of such Grantor’s
assets, including all right, title and interest of such Grantor in, to and
under
all of such Grantor’s Copyrights and Copyright Licenses to which it is a party,
all renewals thereof, in each case whether presently existing or hereafter
arising or acquired, to secure the payment of all the Secured Obligations (as
defined in the Loan Agreement). All capitalized terms and rules of construction
used herein but not defined or established herein shall be applied herein as
defined or established in the Loan Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, Grantors agree as follows:
1.
Grant
of Security Interest in Copyright Collateral.
To
secure the prompt and complete payment, performance and observance of the
Secured Obligations, each Grantor hereby reaffirms its grant of, and further
grants to Grantee a continuing security interest in all of such Grantor’s now
existing or hereafter acquired right, title and interest in, to and under the
following (all of the following items or types of property being herein
collectively referred to as the “Copyright
Collateral”),
whether now existing or hereafter arising:
a.
all
Copyrights and Copyright Licenses to which it is a party including those
Copyrights listed on Schedule
I;
and
b.
all
Proceeds of the foregoing.
2.
Authorization.
Should
any Grantor register any Copyrights, such Grantor (i) shall promptly notify
Grantee of such registration and (ii) hereby authorize Grantee to file this
Agreement with the U.S. Copyright Office and take any other actions necessary
to
perfect Grantee’s security interest in the Copyright Collateral. Each Grantor
hereby authorizes and requests that the U.S. Copyright Office, Library of
Congress record this Agreement and the interests herein granted.
3.
Security
for Obligations.
The
security interest in the Copyright Collateral is granted to secure the Secured
Obligations under and pursuant to the Loan Agreement. Each Grantor does hereby
further acknowledge and affirm that the rights and remedies of Grantee with
respect to the security interest in the Copyright Collateral made and granted
hereby are more fully set forth in the Loan Agreement, the terms and provisions
of which are incorporated by reference herein as if fully set forth
herein.
4. Maintenance
of Schedule.
Each
Grantor authorizes Grantee to unilaterally modify this Agreement by amending
Schedule
I
to
include any future Copyrights and Copyrights Licenses which are Copyrights
and
Copyright Licenses under paragraph
1
hereof.
5.
Governing
Law.
This
Agreement shall be deemed made and accepted in and shall be governed by and
construed in accordance with the laws of the State of California without regard
to the conflicts of law principles hereof, and (where applicable) the laws
of
the United States of America.
6.
Further
Assurances.
At any
time and from time to time, upon the written request of Grantee, and at the
sole
expense of Grantors, each Grantor will promptly and duly execute and deliver
such further instruments and documents and take such further action as Grantee
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and the Loan Agreement, and of the rights and powers
herein and therein granted, including, without limitation, the filing of any
additional, supplemental, or amended Collateral
Grant of Security Interest in Copyrights
with the
U.S. Copyright Office, or the filing of any financing statements or continuation
statements under the Uniform Commercial Code in effect in any jurisdiction
with
respect to the Liens created hereby or in any of the Loan
Agreement.
7.
Grantee’s
Right to Xxx.
From
and after the occurrence and during the continuance of an Event of Default,
subject to the terms of the Loan Agreement, Grantee shall have the right, but
shall in no way be obligated, to bring suit in its own name against any third
parties to enforce Grantee’s interests in and to the Copyright Collateral, and,
if Grantee shall commence any such suit, Grantors shall, at the request of
Grantee, do any and all lawful acts and execute and deliver any and all proper
documents, instruments or information that may be necessary or desirable to
aid
Grantee in such enforcement and Grantors shall promptly, upon demand, reimburse
and indemnify Grantee for all costs and expenses, including reasonable
attorneys’ fees, incurred by Grantee in the exercise of the foregoing rights.
Any recovery from such suits shall be applied by Grantee in the order or
priorities set forth in the Loan Agreement.
8.
Modification.
Except
as set forth in paragraph
4
hereof,
this Agreement cannot be altered, amended or modified in any way, except as
specifically provided by a writing signed by Grantors and Grantee.
9.
Binding
Effect.
This
Agreement shall be binding upon Grantors and their respective successors and
assigns, and shall inure to the benefit of Grantee, its nominees and
assigns.
10. Notice.
Section
11.2 (Notice)
of the
Loan Agreement is hereby incorporated herein in its entirety, save that
references therein to the term Lender shall be deemed to be references to
Grantee herein and references therein to the term Borrower shall be deemed
to be
references to Grantors herein.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF,
the
parties have duly executed this Collateral Grant of Security Interest in
Copyrights as of the date first set forth above.
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DIOMED
HOLDINGS, INC.
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By:
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Name:
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Title:
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DIOMED,
INC.
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By:
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Name:
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Title:
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3
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By:
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X.
Xxxxxxxx Martitsch
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Its:
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Associate
General Counsel
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SCHEDULE
I
BY
DIOMED HOLDINGS, INC. AND DIOMED, INC. IN FAVOR OF HERCULES
TECHNOLOGY GROWTH CAPITAL, INC.
TECHNOLOGY GROWTH CAPITAL, INC.
COPYRIGHT
REGISTRATIONS, APPLICATIONS AND LICENSES
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Copyright
Title
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Copyright
No.
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Registration
Date
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NONE
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