CONSENT AGREEMENT
Consent
Agreement made this ___ day of May,, 2007 (“Consent”) among Aprecia Inc, a
Delaware corporation (the “Company”), and the signators hereto some of whom are
Subscribers under a certain Securities Purchase Agreement (“Securities Purchase
Agreement”) with the Company dated March 10, 2006 (“Prior Subscribers”) and the
New Subscribers (as defined below) who are signators hereto.
WHEREAS,
the Company desires to issue Notes in the principal amount of $187,000 and
Warrants (“New Funding”) to two investors (“New Subscribers”) on the terms set
forth in the Subscription Agreement between the Company and the New Subscribers
dated at or about the date of this Consent (“Subscription Agreement”);
and
WHEREAS,
it is a condition of such New Funding that the Subscribers thereunder receive
a
security interest pari passu with the security interest granted to the Prior
Subscribers pursuant to a Security Agreement dated March 10, 2006 among the
Prior Subscribers, the Company and a Collateral Agent (identified therein)
(“Security Agreement”); and
WHEREAS,
the Prior Subscribers and New Subscribers agree that it would be to their mutual
advantage to be parties to that certain Collateral Agent Agreement dated March
10, 2006 among the Prior Subscribers and Company (“Collateral Agent Agreement”)
as same relates to the New Funding; and
WHEREAS,
the Prior Subscribers, New Subscribers and Company agree that it would be to
their mutual benefit that the New Funding occur and that the New Subscribers
become parties to the Security Agreement and Collateral Agent
Agreement.
NOW
THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby consent
and agree as follows:
1. The
Prior
Subscribers consent to the New Funding and waive their rights in connection
therewith.
2. The
New
Subscribers are hereby deemed parties to the Security Agreement and Collateral
Agent Agreement as if the New Subscribers had executed such
agreements.
3. The
sums
payable to the New Subscribers are deemed Obligations as such term is employed
in the Security Agreement and Collateral Agent Agreement, with all such
Obligations being pari passu with the other components of the
Obligations.
4. The
undersigned consent to the amendment of all Schedules, Exhibits and documents
including but not limited to the Security Agreement and Collateral Agent
Agreement to include the New Subscribers as parties thereto and authorize the
Collateral Agent to make additional filings at the discretion of the Collateral
Agent to memorialize the security interest to be granted to the New
Subscribers.
5. Annexed
hereto is Amended Schedule A to the Security Agreement and Collateral Agent
Agreement which identifies the New Subscribers as parties thereto.
6. All
other
terms of the Transaction Documents as defined in the Securities Purchase
Agreement and Subscription Agreement, including but not limited to those
relating to jurisdiction, venue, governing law, waiver of jury trial and notice,
remain unchanged except as described in this Consent, and shall apply to this
Consent, as appropriate.
7. Each
of
the undersigned states that he has read the foregoing Consent Agreement and
understands and agrees to it.
______________________________________
|
_______________________________________
|
ALPHA
CAPITAL ANSTALT
|
DOUBLE
U MASTER FUND L.P.
|
as
successor to
|
“Prior
Subscriber”
|
ALPHA
CAPITAL AKTIENGESELLSCHAFT
|
|
“Prior
Subscriber”
|
|
_______________________________________
|
_______________________________________
|
TOBANNA
ENTERPRISES CORP.
|
CMS
CAPITAL
|
“Prior
Subscriber”
|
“Prior
Subscriber”
|
_______________________________________
|
_______________________________________
|
ALPHA
CAPITAL ANSTALT
|
HARBORVIEW
MASTER FUND L.P.
|
“New
Subscriber”
|
“New
Subscriber”
|
APRECIA,
INC.
|
|
the
“Company”
|
|
By:___________________________________
|
|
Acknowledged:
|
|
COLLATERAL
AGENT
|
|
_______________________________________
|
|
XXXXXXX
XXXXXXXXX
|
|
AMENDED
SCHEDULE A TO SECURITY AGREEMENT
AND
COLLATERAL AGENT AGREEMENT
SUBSCRIBER
|
PRINCIPAL
AMOUNT OF DEBENTURE
|
ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
|
$250,000.00
(Issued
March 10, 2006)
|
DOUBLE
U MASTER FUND L.P.
X/x
Xxxxxxxxx Xxxxxxxxxx Xxx.
Xxxxxx
Xxxxx, Xxxxxxxxxx Drive
P.O.
Box 972
Road
Town, Tortola
British
Virgin Islands
Attn:
Xxxxxx Xxxx
Fax:
(000) 000-0000
|
$100,000.00
(Issued
March 10, 2006)
|
TOBANNA
ENTERPRISES CORP.
00
Xxxxxxxxxxx Xxxxxx, Xxx. #00
Xxx
Xxxx, Xxxxxx 00000
Fax:
000-000-0-000-0000
|
$125,000.00
(Issued
March 10, 2006)
|
CMS
CAPITAL
0000
Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxx
Fax:
(000) 000-0000
|
$25,000.00
(Issued
March 10, 2006)
|
ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
|
$93,500.00
(Issued
May, 2007)
|
HARBORVIEW
MASTER FUND L.P.
2nd
Floor, Harbor House
Waterfront
Drive, Road Town
Tortola,
British Virgin Islands
Fax:
(000) 000-0000
|
$93,500.00
(Issued
May, 2007)
|