COLLATERAL ASSIGNMENT AND CONSENT
EXHIBIT
4.1
1. Parties;
Grant. MATRITECH, INC., a Delaware corporation
(the “Assignor”), hereby grants to SDS CAPITAL GROUP SPC, LTD.,
as collateral agent for the holders (the “Holders”) of the Notes
(hereinafter, as defined below), (in such capacity, together with its successors
in such capacity, the “Collateral Agent”), for the benefit of the
Collateral Agent and Holders, a continuing security interest in all of
Assignor’s rights, title and interest in, to and under the Assigned Agreement
(as defined below) and all proceeds thereof in an aggregate amount up to but
not
exceeding the Maximum Amount (the “Collateral”) to secure the
Obligations. Not withstanding anything to the contrary in this
Collateral Assignment, the maximum liability of the Assignor hereunder with
respect to the Obligations shall in no event exceed the Maximum
Amount.
2. Defined
Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the applicable
Notes. The following terms, as used herein, shall have the following
meanings:
“Assigned
Agreement” means the agreement dated on or about the date hereof between the
Assignor and a nationally-recognized brokerage firm satisfactory to the Assignor
(the “Consenting Party”), in form and substance satisfactory to the
Assignor, pursuant to which the Consenting Party agrees to sell certain shares
of Inverness Medical Innovations, Inc. (“Inverness”) common stock (AMEX:
IMA) received by Assignor, on the Assignor’s behalf, as such agreement is
amended, modified or supplemented from time to time. Such shares of
Inverness common stock are to be received by the Assignor, on or about
December 12, 2007, in connection with the closing of the transactions
contemplated under the Asset Purchase Agreement, by and among Inverness, Milano
Acquisition Corp., and the Assignor, dated August 27, 2007, under which the
Assignor agreed to sell substantially all of its assets to Milano Acquisition
Corp., in exchange for an initial payment of shares of Inverness common stock
valued at approximately $36 million.
“Collateral
Assignment” means this Collateral Assignment and Consent, as amended,
modified or supplemented from time to time.
“Material
Adverse Effect” means any effect which, individually or in the aggregate
with all other effects, reasonably would be expected to be materially adverse
to
(i) the ability of the Assignor to perform its obligations under this Collateral
Assignment, the Assigned Agreement or the Notes; or (ii) the business,
operations, properties, condition (financial or otherwise) or results of
operations of the Assignor and its Subsidiaries, taken as a whole.
“Maximum
Amount” means an amount equal to: $17,069.072, which represents 105% of the
amount necessary to extinguish the Obligations.
“Notes”
means, collectively, the Series A Notes, Series B Notes and Series C
Notes.
“Obligations”
means all of Assignor’s obligations under the Notes, in each case, whether now
or hereafter existing, voluntary or involuntary, direct or indirect, absolute
or
contingent,
liquidated
or unliquidated, whether or not jointly owed with others, and whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from Secured Party as a preference, fraudulent transfer
or otherwise as such obligations may be amended, supplemented, converted,
extended or modified from time to time. Without limiting the
generality of the foregoing, the term “Obligations” shall include,
without limitation: (i) principal of, and interest on the Notes; (ii)
all prepayment or other premiums on the Notes; and (iii) all amounts (including
but not limited to post-petition interest) in respect of the foregoing that
would be payable but for the fact that the obligations to pay such amounts
are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving Assignor.
“Proceeds”
is used herein as defined in the Uniform Commercial Code but, in any event,
shall include, but not be limited to, (a) any and all proceeds of any,
indemnity, warranty or guaranty payable to Assignor or Collateral Agent from
time to time with respect to any of the Collateral; (b) any and all payments
(in
any form whatsoever) made or due and payable to Assignor from time to time
in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any person acting under color of governmental authority); (c) any and all
amounts received when Collateral is sold, leased, licensed, exchanged, collected
or disposed of; (d) any rights arising out of Collateral; and (e) any and all
other amounts from time to time paid or payable under or in connection with
any
of the Collateral.
“Secured
Party” means, collectively, the Collateral Agent and the
Holders.
“Series
A Notes” means the Assignor’s 15% Secured Convertible Promissory Notes
issued to the Holders thereof on January 13, 2006 in the original
aggregate principal amount of $6,997,960, as amended, restated, modified,
supplemented and/or replaced from time to time.
“Series
B Notes” means the Assignor’s Series B 15% Secured Convertible Promissory
Notes issued to the Holders thereof on January 22, 2007 in the original
aggregate principal amount of $4,365,000, as amended, restated, modified,
supplemented and/or replaced from time to time.
“Series
C Notes” means the Assignor’s Series C 15% Secured Promissory Notes issued
to the Holders thereof on August 30, 2007 in the original aggregate principal
amount of $3,500,000, as amended, restated, modified, supplemented and/or
replaced from time to time.
“Uniform
Commercial Code” means the Uniform Commercial Code in effect on the date
hereof and as amended from time to time, and as enacted in the State of Delaware
or in any state or states which, pursuant to the Uniform Commercial Code as
enacted in the State of Delaware, has jurisdiction with respect to all, or
any
portion of, the Collateral or this Collateral Assignment, from time to
time.
3. Representations
of Assignor. The Assignor represents
and warrants to the Collateral Agent that on the date hereof:
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(a) The
Assignor has the corporate power to execute and deliver, and perform its
obligations under, the Assigned Agreement and this Collateral Assignment and
has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Assigned Agreement and this Collateral
Assignment. Each of the Assigned Agreement and this Collateral
Assignment has been duly executed by the Assignor. Each of the
Assigned Agreement and this Collateral Assignment constitutes the legal, valid
and binding obligation of the Assignor, enforceable against the Assignor in
accordance with its respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and similar laws of general application relating to or affecting
the
rights and remedies of creditors or general principles of equity.
(b) Neither
the pledge by the Assignor under Section 1 hereof nor any of the provisions
hereof (including, without limitation, the grant by the Assignor of the remedies
provided hereunder) violates any of the provisions of (i) the bylaws or
certificate of incorporation of the Assignor; (ii) any other agreement to which
the Assignor or any of its property is a party or is subject; or (iii) any
judgment, decree, order or award of any court, governmental body or arbitrator
or any applicable law, rule or regulation applicable to the Assignor or any
of
its property (except, with respect to clauses (ii) and (iii), for such
violations that would not, individually or in the aggregate, have a Material
Adverse Effect).
(c) A
true, accurate and complete copy of the Assigned Agreement as of the date
hereof, together with any and all amendments thereto on the date hereof and
which is evidenced by a written agreement or document, has been delivered to
Collateral Agent. The Assignor is the legal and beneficial owner of
the Collateral in existence on the date hereof, free and clear of any security
interests or liens created by the Assignor in favor of any person or entity
other than the Secured Party.
(d) To
the Assignor’s knowledge, no material default exists under the Assigned
Agreement on the part of the Assignor or the Consenting Party.
(e) The
Assignor specifically acknowledges and agrees that neither Collateral Agent
nor
any Holder assumes or will have any responsibility for the payment of
any sums due from the Assignor under the Assigned Agreement or the performance
of any obligations of the Assignor under the Assigned Agreement.
4. Covenants
of Assignor. The Assignor covenants with
the Collateral Agent that:
(a) The
Assignor hereby authorizes the Collateral Agent to file in such office or
offices in the United States as is necessary, or as the Collateral Agent
reasonably deems desirable, such financing and continuation statements and
amendments and supplements thereto, and such other documents as the Collateral
Agent reasonably may require to perfect, preserve and protect the security
interests granted herein.
(b) The
Assignor shall not sell, assign, transfer, encumber or otherwise dispose of
any
Collateral without the prior written consent of the Collateral Agent and the
Collateral Agent does not hereby authorize any such disposition, except for
liens in favor of the Collateral Agent.
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(c) The
Assignor shall comply in all material respects with its obligations under the
Assigned Agreement. The Assignor shall exercise all reasonable steps
within its power to enforce or secure performance by the Consenting Party under
and in accordance with the Assigned Agreement.
5. Rights
of Assignor Prior to Default
Notice. So long as a holder of a Note has
not issued a Default Notice that has not been waived or rescinded to the
Assignor with respect to a series of Notes, the Assignor shall have and may
exercise all lawful rights as party to the Assigned Agreement. If a
holder of a Note has issued a Default Notice to the Assignor that has not been
waived or rescinded, and so long as an Event of Default has occurred and is
continuing, the rights described in the preceding sentence shall cease and
terminate, and in such event the Collateral Agent is hereby expressly and
irrevocably authorized, but not required, to exercise every right, option,
power
or authority inuring to the Assignor under the Assigned Agreement as fully
as
could the Assignor itself.
6. Irrevocable
Direction.
(a) The
Assignor hereby irrevocably directs the Consenting Party that the Proceeds
received by the Consenting Party under the Assigned Agreement, in an amount
not
to exceed the Maximum Amount, shall be delivered directly from the Consenting
Party to the Collateral Agent, for payment in full of the
Notes. Notwithstanding the foregoing sentence, if the Collateral
Agent receives any Proceeds or other payment or distribution in excess of the
amount of the Obligations, the Collateral Agent hereby agrees to hold such
excess in trust for the benefit of the Assignor, and to immediately pay over
or
deliver all such excess to the Assignor, in the form received.
(b) The
Assignor hereby irrevocably directs the Consenting Party, upon demand and after
notice from Collateral Agent that a Default Notice has been issued to
the Assignor and an Event of Default has occurred and is continuing, to
recognize and accept Collateral Agent as the holder of the Assignor’s rights,
title and interest in, to and under the Assigned Agreement for any and all
purposes, as fully as the Consenting Party would recognize and accept the
Assignor and the performance of the Assignor thereunder.
7. UCC
Rights and Remedies. So long as a Default Notice has been issued
to the Assignor and an Event of Default has occurred and is continuing, the
Collateral Agent shall have the rights and remedies of a secured party under
the
Uniform Commercial Code with respect to the Assigned Agreement, in addition
to
the rights and remedies otherwise provided for by law, in equity, under this
Collateral Assignment or under the Notes. Collateral Agent shall give
the Assignor at least twenty (20) days’ prior written notice of the time and
place of any public sale of the Assigned Agreement or the time after which
any
private sale or any other intended disposition is to be made. After
deducting all expenses incurred in connection with the enforcement of its rights
hereunder, Collateral Agent shall cause any and all Proceeds received in respect
of the Assigned Agreement (including amounts delivered directly to the
Collateral Agent by the Consenting Party) to be applied to the Obligations
in
such order as Collateral Agent may determine, and any remainder to the
Assignor. The Assignor shall remain liable for any
deficiency.
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8. Indemnification. The
Assignor hereby agrees to indemnify and hold Collateral Agent, the Holders
and
their respective employees, directors, officers and agents (collectively, the
“Indemnitees”) harmless against and from all liability, loss,
damage and expense, including reasonable attorneys’ fees, incurred by such
Indemnitees by reason of this Collateral Assignment, and against and from any
and all claims and demands whatsoever which may be asserted against such
Indemnitees by reason of any alleged obligation or undertaking on their part
to
perform or discharge any of the terms, covenants and conditions contained in
the
Assigned Agreement; provided, that the Assignor shall not be obligated to
indemnify any Indemnitee for such Indemnitee’s gross negligence or willful
misconduct. Should Collateral Agent or any Holder incur any such
indemnified liability, loss, damage or expense, the amount thereof shall be
payable by the Assignor to Collateral Agent or any Holder within five
days of the Assignor’s receipt of a prior written request therefor.
9. Collateral
Agent and Holders Not
Obligated. Nothing contained herein shall obligate
the Collateral Agent or any Holder to perform any of the terms or
provisions contained in the Assigned Agreement or otherwise impose any
obligation on the Collateral Agent or any Holder with respect to the Assigned
Agreement.
10. Termination
and Reassignment. Upon payment in full of
all Obligations, this Collateral Assignment shall be and become void and of
no effect and, in that event, at the Assignor’s request and expense, Collateral
Agent covenants and agrees to execute and deliver to the Assignor instruments
effective to evidence the termination of this Collateral Assignment and the
reassignment to the Assignor of the Assigned Agreement and the rights, title,
interest, power and authority collaterally assigned herein.
11. Further
Assurances; UCC Filings. The Assignor agrees to
execute and deliver to Collateral Agent, at any time or times during which
this
Collateral Assignment shall be in effect, such further instruments as Collateral
Agent may deem necessary or reasonably desirable to further effectuate the
purposes of this Collateral Assignment, at the reasonable request of the
Collateral Agent.
12. No
Waiver; Cumulative Rights. Failure of the Collateral Agent
to exercise any of its rights and remedies under this Collateral Assignment
for
any period of time or at any time or times, shall not be construed or deemed
to
be a waiver of any of its rights or remedies hereunder. The rights
and remedies of the Secured Party hereunder are cumulative and in addition
to any other rights and remedies which the Secured Party shall have under or
in
respect of the Obligations and the Notes.
13. Collateral
Agent’s Right to Assign. The Assignor
agrees that upon any sale or transfer by Collateral Agent or Holders of the
Notes as permitted under the Notes, or upon any person (other than the
Consenting Party) acquiring the Collateral or any interest therein, Collateral
Agent may deliver to the purchaser or transferee the Assigned Agreement and
may
assign to such purchaser or transferee the rights of Collateral Agent hereunder,
who shall thereupon become vested with all powers and rights given to Collateral
Agent in respect thereto (and subject to Collateral Agent’s obligations
hereunder), and Collateral Agent shall be fully discharged from any liability
thereafter accruing in connection therewith.
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14. Copies
of Default and Termination
Notices. The Assignor will provide Collateral
Agent with (a) copies of any and all notices received by the Assignor which
allege, either directly or indirectly, that the Assignor is in default of or
deficient in the performance of any material term or obligation of the Assignor
under the Assigned Agreement, or which relate to a termination or renewal of
the
Assigned Agreement, and (b) copies of any and all notices sent by the Assignor
which allege, either directly or indirectly, that the Consenting Party is in
default of or deficient in the performance of any material term or obligation
of
the Consenting Party under the Assigned Agreement, or which relate to a
termination or renewal of the Assigned Agreement.
15. Notices. Any
notices given pursuant to this Collateral Assignment shall be given in the
manner provided for in the Notes or, if to the Consenting Party, in the Assigned
Agreement.
16. Successors
and Assigns. All of the agreements, obligations,
undertakings, representations and warranties herein made by the Assignor shall
inure to the benefit of Collateral Agent and Collateral Agent’s successors and
assigns and shall bind the Assignor and its successors and assigns.
17. Captions
and Headings. Captions and headings in this Collateral
Assignment are intended solely for the convenience of the parties and shall
not
be considered in the determination of the meaning of any provision
hereof.
18. Governing
Law; Counterparts. The validity of this Collateral
Assignment, its construction, interpretation and enforcement, and the rights
of
the parties hereunder, shall be determined under, governed by and construed
in
accordance with the law of the State of Delaware. This Collateral
Assignment may be executed in any number of counterparts and by different
parties and separate counterparts, each of which when so executed and delivered
shall be deemed an original, and all of which, when taken together, shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Collateral Assignment by facsimile
shall
be as effective as delivery of a manually executed counterpart of this
Collateral Assignment.
[The
remainder of this page is intentionally left blank.]
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Executed
as a sealed instrument as of the date first written above.
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MATRITECH,
INC.
By:________________________________
Name:
Title:
SDS
CAPITAL GROUP SPC, LTD.,
as
Collateral Agent
By:________________________________
Name:
Title:
|
[Signature
page of Collateral Assignment]
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CONSENT
TO COLLATERAL ASSIGNMENT
OF
ASSIGNED AGREEMENT
[name
of Consenting Party], a _____________ (the “Consenting Party”),
hereby agrees as follows:
1. Consenting
Party hereby acknowledges and irrevocably consents to the foregoing Collateral
Assignment by Assignor of all of Assignor’s right, title and interest in, to and
under the Assigned Agreement and other Collateral to Collateral Agent as
collateral security pursuant to the Collateral Assignment.
2. Consenting
Party hereby acknowledges and irrevocably consents to the transfer by Collateral
Agent, in connection with the enforcement of remedies under the foregoing
Collateral Assignment and the Notes, of all rights, title and interest of
Assignor in, to and under the Assigned Agreement to any Person (a
“Transferee”).
3. Consenting
Party hereby represents to Collateral Agent that: (a) attached as Schedule
1 hereto is a true, complete and correct copy of the Assigned Agreement
between it and the Assignor; (b) to Consenting Party’ knowledge, as of the
date hereof neither the Assignor nor Consenting Party is in default in the
performance of their respective obligations under the Assigned Agreement nor
do
any facts or circumstances exist which, with notice or the lapse of time or
both, would constitute a default by the Assignor or Consenting Party thereunder;
(c) the Assigned Agreement and this Consent are binding obligations of
Consenting Party, enforceable against Consenting Party in accordance with their
respective terms; (d) Consenting Party has not assigned any of its rights
with respect to the Assigned Agreement; (e) the assignment by Assignor of its
rights in respect of the Assigned Agreement to Collateral Agent, as security,
and the acknowledgment of and consent to such assignment by Consenting Party,
will not cause or constitute a default under the Assigned Agreement or an event
or condition which would, with the giving of notice or the lapse of time or
both, constitute a default under the Assigned Agreement; (f) Consenting Party
has not waived any of its rights under the Assigned Agreement; (g) a foreclosure
or other exercise of remedies under the Notes or any sale thereunder by
Collateral Agent or any of its designees or assignees, whether by judicial
proceedings or under any power of sale contained therein, or any conveyance
from
Collateral Agent to any Transferee, shall not require the consent of Consenting
Party or cause or constitute a default under the Assigned Agreement or an event
or condition which would, with the giving of notice or the lapse of time or
both, constitute a default under the Assigned Agreement; and (h) all
representations, warranties and other statements made by Consenting Party in
the
Assigned Agreement are true and correct as of the date hereof.
4. Consenting
Party hereby agrees that the Assignor may collaterally assign its interest
under
the Assigned Agreement to Collateral Agent to secure the Assignor’s Obligations
to Collateral Agent and the Holders in connection with certain Notes issued
by
the Assignor to the Holders. In connection therewith, Consenting
Party agrees that: (a) if Consenting Party gives the Assignor any notice
under the Assigned Agreement, it will simultaneously provide a copy of such
notice to Collateral Agent in the manner provided for notices under the Assigned
Agreement at the following address: SDS Capital Group SPC, LTD., as Collateral
Agent, 00 Xxxxxx Xxxxxx, 0xx Xxxxx,
Xxx
Xxxxxxxxx, XX 00000, Attn: Xxxxx Xxxxx, Facsimile No. 000-000-0000
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(or
at
such other address as Collateral Agent may from time to time request by written
notice to Consenting Party); (b) if tendered by Collateral Agent (but
Collateral Agent shall have no obligation to tender any such amounts),
Consenting Party will accept payment or other performance by Collateral Agent
of
any obligation of the Assignor under the Assigned Agreement as if the Assignor
had made such payment or performance; and (c) in the event of a default by
the Assignor under an Assigned Agreement, Consenting Party will not terminate
such Assigned Agreement by reason of such default as long as Collateral Agent
is
paying any amount due under such Assigned Agreement on a current basis due
for
the period commencing with the date Consenting Party notified Collateral Agent
in writing of a default under such Assigned Agreement and Collateral Agent
is
performing such of the other obligations of Assignor under such Assigned
Agreement from such date as it is reasonably able to perform under the
circumstances.
5. The
Consenting Party hereby acknowledges that the Assignor has irrevocably directed
the Consenting Party that the $17,069,072 of Proceeds received by the Consenting
Party under the Assigned Agreement shall be delivered directly from the
Consenting Party to the Collateral Agent, for payment in full of the
Notes.
6. In
the event that Collateral Agent or any purchaser from or nominee, successor
or
assignee of Collateral Agent succeeds to the interest of Assignor or uses the
rights of Assignor under the Assigned Agreement, such party shall not be (a)
liable for any act or omission of Assignor under the Assigned Agreement; (b)
liable for the return of any security deposit under the Assigned Agreement;
(c) bound by any amendment or modification of the Assigned Agreement made
without Collateral Agent’s prior written consent; or (d) liable for any default
under the Assigned Agreement or any covenant or obligation on its part to be
performed thereunder by Assignor, it being acknowledged that Consenting Party’
sole remedy in the event of such default shall be to proceed against
Assignor.
7. Collateral
Agent has no obligation hereunder to extend credit to Consenting Party or any
contractor to Consenting Party at any time for any purpose. If any
holder of the Notes has issued a Default Notice that has not been waived or
rescinded to the Assignor and an Event of Default has occurred and is continuing
under any Notes, Collateral Agent shall have the right, interalia,
and to the extent permitted under the Notes, to (a) sell or otherwise transfer
its interest in the Assigned Agreement and, under such sale, any purchaser
shall
succeed to Collateral Agent’s rights hereunder, and (b) exercise all rights of
Assignor under the Assigned Agreement in accordance with the terms
thereof. Consenting Party shall comply with Collateral Agent’s
instructions and directions in connection with Collateral Agent’s exercise of
such rights. Without limiting the generality of the foregoing, if any
holder of the Notes has issued a Default Notice that has not been waived or
rescinded to the Assignor and an Event of Default has occurred and is continuing
under the Notes, Collateral Agent or any of its designees or assignees shall
have the full right and power to enforce directly against Consenting Party
all
obligations of Consenting Party under the Assigned Agreement to which Consenting
Party is party and otherwise to exercise all remedies thereunder, and to make
all demands and give all notices and make all requests required or permitted
to
be made by Assignor under the Assigned Agreement.
8. This
Consent may not be amended except in writing signed by Consenting Party, the
Assignor and the Collateral Agent. All of the agreements,
obligations, undertakings,
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representations
and warranties herein made by Consenting Party shall inure to the benefit of
Collateral Agent and Collateral Agent’s successors and assigns and shall bind
Consenting Party and its successors and assigns. This Consent may be
executed in any number of counterparts and by different parties and separate
counterparts, each of which when so executed and delivered shall be deemed
an
original, and all of which, when taken together, shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature
page to this Consent by facsimile shall be as effective as delivery of a
manually executed counterpart of this Consent.
8. This
Consent shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed in the State
of Delaware. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction of the United States federal courts and the state courts
located in the County of New Castle, Delaware, in any suit or proceeding between
the parties based on or arising under this Agreement and irrevocably agrees
that
all claims in respect of such suit or proceeding may be determined in such
courts. Each of the parties hereto irrevocably waives the defense of
an inconvenient forum to the maintenance of such suit or proceeding in such
forum. Each of the parties hereto further agrees that service of
process upon it mailed by first class mail shall be deemed in every respect
effective service of process upon it in any such suit or
proceeding. Nothing herein shall affect the right of any party hereto
to serve process in any other manner permitted by law. Each of the
parties hereto agree that a final non-appealable judgment in any such suit
or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
9. WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS COLLATERAL ASSIGNMENT AND CONSENT, THE ASSIGNED AGREEMENT
OR
ANY NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (I) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT
IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
[signatures
on following page]
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WITNESS
the due execution of Consenting Party’s Consent as of this __________ day of
_____________, ____________.
|
[CONSENTING
PARTY]
By:
Name:
Title:
|
ACCEPTED
AND AGREED:
MATRITECH,
INC.
By:___________________________
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|
Name:
|
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Title:
|
SDS
CAPITAL GROUP SPC, LTD.,
as
Collateral Agent
By:____________________________
|
|
Name:
|
|
|
Title:
|
[Signature
page of Consenting Party Consent]
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SCHEDULE
1
Copy
of Assigned Agreement
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