REAFFIRMATION AND RATIFICATION AGREEMENT As of February 29, 2008
Exhibit
10.63
As
of
February 29, 2008
Laurus
Master Fund, Ltd.
Valens
U.S. SPV I, LLC
Valens
Offshore SPV I, Ltd.
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Ladies
and Gentlemen:
Reference
is made to (a) the Securities Purchase Agreement, dated as of October 31, 2006
(as amended, modified and supplemented from time to time, the “First
Purchase Agreement”)
by and
between Modtech Holdings, Inc. (the “Company”)
and
Laurus Master Fund, Ltd. (“Laurus”);
(b)
the Securities Purchase Agreement, dated as of December 28, 2006 (as amended,
modified and supplemented from time to time, the “Second
Purchase Agreement,”
together with the October Purchase Agreement, the “Purchase
Agreements”)
by and
between the Company and Laurus; (c) the Related Agreements (as defined in the
Purchase Agreements), (d) the Master Security Agreement, dated as of October
31,
2006 (as amended, modified and supplemented from time to time, the “Security
Agreement”),
by
and between the Company and Laurus; (e) the Intellectual Property Security
Agreement, dated as of October 31, 2006, made by the Company in favor of Laurus
(as amended, modified or supplemented from time to time, the “IP
Security Agreement”);
(f)
the Restricted Account Agreement dated as of October 31, 2006 by and among
the
Company, Laurus and North Fork Bank (as amended, modified and supplemented
from
time to time, the “Restricted
Account Agreement”);
and
(g) the side letter agreement regarding restricted cash dated as of October
31,
2006 made by the Company in favor of Laurus (as amended , modified and/or
supplemented from time to time, the “Side
Letter”;
and
collectively with the Purchase Agreements, the Related Agreements, the Master
Security Agreement, the IP Security Agreement, and the Restricted Account
Agreement, each an “Existing
Agreement”
and
collectively, the “Existing
Agreements”).
Laurus
has assigned a portion of its rights under the Existing Agreement to Valens
U.S.
SPV I, LLC (“Valens
US”)
and
Valens Offshore SPV I, Ltd. (“Valens
Offshore,”
together with Laurus and Valens US, each a “Lender,”
collectively, the “Lenders”).
To
induce
the Lenders to enter into an Amendment and Waiver Agreement dated as of the
date
hereof among the Lenders and the Company (the “Amendment Agreement”),
the
Company hereby:
(a)
represents
and warrants to the Lenders that it has reviewed and approved the terms and
provisions of (i) the Amendment; (ii) the Additional Secured Term Notes (as
such
term is defined in the Amendment ), (iii) the Additional Common Stock Warrants
(as such term is defined in the Amendment and (iv) the Additional Registration
Rights Agreements (as such term is defined in the “Amendment”) (the documents
listed in items (i) through (iv) of this paragraph are collectively hereinafter
referred to as the “Additional
Documents”);
(b) acknowledges,
ratifies and confirms that, except as expressly modified by the Amendment
Documents, all of the terms, conditions, representations and covenants contained
in the Existing Agreements are in full force and effect and shall remain in
full
force and effect after giving effect to the execution and effectiveness of
the
Amendment Documents;
(c) acknowledges,
ratifies and confirms that the defined term “Obligations” under the Master
Security Agreement and the IP Security Agreement, include, without limitation,
all obligations and liabilities of the Company under the Amendment Documents
and
the Existing Agreements, as applicable, and all other obligations and
liabilities of each of the Company to the Lenders (including interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, whether or not a claim for
post-filing or post-petition interest is allowed or allowable in such
proceeding), whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent;
(d) acknowledges
and confirms that (i) the occurrence of an Event of Default under any of the
Amendment Documents shall constitute an Event of Default under the Existing
Agreements and (ii) the occurrence of an Event of Default under any of the
Existing Agreements shall constitute an Event of Default under the Amendment
Documents;
(e) represents
and warrants that no offsets, counterclaims or defenses exist as of the date
hereof with respect to any of the Company’s obligations under any of the
Existing Agreements;
(f) acknowledges,
ratifies and confirms (i) the grant by the Company to the Lenders of a security
interest and lien in the assets of the Company as more specifically set forth
in
the Existing Agreements, as applicable (the “Security
Interest Grants”)
and
(ii) that the Security Interest Grants secure all the Obligations;
(g) represents
and warrants that all of the representations made by or on behalf of the Company
in the Existing Agreements are true and correct in all material respects on
and
as of the date hereof;
(h) releases,
remises, acquits and forever discharges each Lender and each Lender’s employees,
agents, representatives, consultants, attorneys, fiduciaries, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of
the
foregoing hereinafter called the “Released
Parties”),
from
any and all actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and
every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, for or because of any matter or things done, omitted
or suffered to be done by any of the Released Parties in any way directly or
indirectly arising out of or in any way connected to this Reaffirmation and
Ratification Agreement, the Existing Agreements, the Amendment Documents and
any
other document, instrument or agreement made by the undersigned in favor of
the
Lenders, in each case arising prior to and including the date of execution
hereof.
2
This
Reaffirmation and Ratification Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all which when taken together shall constitute one and the same
agreement.
[Remainder
of this page intentionally left blank.]
3
This
Reaffirmation and Ratification Agreement shall be governed by and construed
in
accordance with the laws of the State of New York.
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Very
truly yours,
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MODTECH
HOLDINGS, INC.
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By:
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/s/
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Name:
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Title: Chief
Financial Officer
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ACCEPTED
AND AGREED TO:
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LAURUS
MASTER FUND, LTD.
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By:
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Laurus
Capital Management, LLC,
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its
investment manager
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By:
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/s/
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Name:
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Title: Authorized
Signatory
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VALENS
U.S. SPV I, LLC
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By:
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Valens
Capital Management, LLC,
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its
investment manager
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By:
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/s/
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Name:
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Title: Authorized
Signatory
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VALENS
OFFSHORE SPV I, LTD.
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By:
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Valens
Capital Management, LLC,
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its
investment manager
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By:
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/s/
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Name:
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Title: Authorized
Signatory
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