MODTECH HOLDINGS, INC. AND CERTAIN OF ITS SUBSIDIARIES MASTER SECURITY AGREEMENT
EXHIBIT
10.40
MODTECH
HOLDINGS, INC. AND CERTAIN OF ITS SUBSIDIARIES
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To:
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Laurus
Master Fund, Ltd.
c/o
M&C Corporate Services Limited
▇.▇.
▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇
House
South
Church Street
▇▇▇▇▇▇
Town
Grand
Cayman, Cayman Islands
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Date
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October
31,
2006
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To
Whom
It May Concern:
1. To
secure
the payment of all Obligations (as hereafter defined), Modtech Holding, Inc.,
a
Delaware corporation (the “Company”),
each
of the other undersigned parties (other than Laurus Master Fund, Ltd.,
(“Laurus”))
and
each other entity that is required to enter into this Master Security Agreement
(each an “Assignor”
and,
collectively, the “Assignors”)
hereby
assigns and grants to Laurus a continuing security interest in all of the
following property now owned or at any time hereafter acquired by such Assignor,
or in which such Assignor now has or at any time in the future may acquire
any
right, title or interest (the “Collateral”):
all
cash, cash equivalents, accounts, accounts receivable, deposit accounts
(including, without limitation, (x) the Restricted Account (the “Restricted
Account”)
maintained at North Fork Bank (Account Name: Modtech Holdings, Inc., Account
Number: 270-405-8763) referred to in the Restricted Account Agreement) and
(y)
Lockbox Deposit Accounts), inventory, equipment, goods, fixtures, documents,
instruments (including, without limitation, promissory notes), contract rights,
commercial tort claims set forth on Exhibit B to this Master Security Agreement,
general intangibles (including, without limitation, payment intangibles and
an
absolute right to license on terms no less favorable than those current in
effect among such Assignor’s affiliates), chattel paper, supporting obligations,
investment property (including, without limitation, all partnership interests,
limited liability company membership interests and all other equity interests
owned by any Assignor), letter-of-credit rights, trademarks, trademark
applications, tradestyles, patents, patent applications, copyrights, copyright
applications and other intellectual property in which such Assignor now has
or
hereafter may acquire any right, title or interest, all proceeds and products
thereof (including, without limitation, proceeds of insurance) and all
additions, accessions and substitutions thereto or therefor. In the event any
Assignor wishes to finance the acquisition in the ordinary course of business
of
any hereafter acquired equipment and has obtained a written commitment from
an
unrelated third party financing source to finance such equipment, Laurus shall
release its security interest on such hereafter acquired equipment so financed
by such third party financing source. Except as otherwise defined herein, all
capitalized terms used herein shall have the meanings provided such terms in
the
Securities Purchase Agreement referred to below. All items of Collateral which
are defined in the UCC shall have the meanings set forth in the UCC. For
purposes hereof, the term "UCC"
means the Uniform Commercial Code as the same may, from time to time, be in
effect in the State of New York; provided, that in the event that, by reason
of
mandatory provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, Laurus' security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term “UCC”
shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions of this Agreement relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to
such
provisions; provided further, that to the extent that the UCC is used to define
any term herein and such term is defined differently in different Articles
or
Divisions of the UCC, the definition of such term contained in Article or
Division 9 shall govern.
2. The
term
“Obligations”
as
used
herein shall mean and include all debts, liabilities and obligations owing
by
each Assignor to Laurus arising under, out of, or in connection with: (i) that
certain Securities Purchase Agreement dated as of the date hereof by and between
the Company and Laurus (the “Securities
Purchase Agreement”)
and
(ii) the Related Agreements referred to in the Securities Purchase Agreement
(the Securities Purchase Agreement and each Related Agreement, as each may
be
amended, modified, restated or supplemented from time to time, collectively,
the
“Documents”),
and
in connection with any documents, instruments or agreements relating to or
executed in connection with the Documents or any documents, instruments or
agreements referred to therein or otherwise, and in connection with any other
indebtedness, obligations or liabilities of each such Assignor to Laurus,
whether now existing or hereafter arising, direct or indirect, liquidated or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise,
including, without limitation, obligations and liabilities of each Assignor
for
post-petition interest, fees, costs and charges that accrue after the
commencement of any case by or against such Assignor under any bankruptcy,
insolvency, reorganization or like proceeding (collectively, the “Debtor
Relief Laws”)
in
each case, irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of
the
Obligations or of any collateral therefor or of the existence or extent of
such
collateral, and irrespective of the allowability, allowance or disallowance
of
any or all of the Obligations in any case commenced by or against any Assignor
under any Debtor Relief Law.
3. Each
Assignor hereby jointly and severally represents, warrants and covenants to
Laurus that:
(a) it
is a
corporation, partnership or limited liability company, as the case may be,
validly existing, in good standing and formed under the respective laws of
its
jurisdiction of formation set forth on Schedule A, and each Assignor will
provide Laurus thirty (30) days’ prior written notice of any change in any of
its respective jurisdiction of formation;
(b) its
legal
name is as set forth in its Certificate of Incorporation or other organizational
document (as applicable) as amended through the date hereof and as set forth
on
Schedule A, and it will provide Laurus thirty (30) days’ prior written notice of
any change in its legal name;
2
(c) its
organizational identification number (if applicable) is as set forth on Schedule
A hereto, and it will provide Laurus thirty (30) days’ prior written notice of
any change in its organizational identification number;
(d) it
is the
lawful owner of its Collateral and it has the sole right to grant a security
interest therein and will defend the Collateral against all claims and demands
of all persons and entities;
(e) other
than Permitted Encumbrances, it will keep its Collateral free and clear of
all
attachments, levies, taxes, liens, security interests and encumbrances of every
kind and nature (“Encumbrances”),
except (i) Encumbrances securing the Obligations and (ii) Encumbrances securing
indebtedness of each such Assignor not to exceed $50,000 in the aggregate for
all such Assignors so long as all such Encumbrances are removed or otherwise
released to Laurus’ satisfaction within ten (10) days of the creation thereof;
for the purposes hereof, Permitted Encumbrances shall mean (A) “Permitted
Encumbrances”
means
(1) Encumbrances of carriers, warehousemen, artisans, bailees, mechanics and
materialmen incurred in the ordinary course of business securing sums(x) not
overdue or (y) being diligently contested in good faith provided that adequate
reserves with respect thereto are maintained on the books of the applicable
Company in conformity with GAAP (as defined in the Securities Purchase
Agreement) and provided, further that the Encumbrance shall have no effect
on
the priority of Encumbrances in favor of Laurus or the value of the assets
in
which Laurus has any Encumbrance; (2) Encumbrances incurred in the ordinary
course of business in connection with workmen’s compensation, unemployment
insurance or other forms of governmental insurance or benefits, relating to
employees, securing sums (x) not overdue or (y) being diligently contested
in
good faith provided that adequate reserves with respect thereto are maintained
on the books of the applicable Company in conformity with GAAP and provided,
further that the Encumbrance shall have no effect on the priority of
Encumbrances in favor of Laurus or the value of the assets in which Laurus
has
any Encumbrance; (3) Encumbrances in favor of Laurus; (4) Encumbrances for
taxes
(x) not yet due or (y) being diligently contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained
on the books of the applicable Company in conformity with GAAP and provided,
further that the Encumbrance shall have no effect on the priority of
Encumbrances in favor of Laurus or the value of the assets in which Laurus
has
any Encumbrance; and (5) Purchase Money Liens securing Purchase Money
Indebtedness in an amount not to exceed $200,000; (B) “Purchase Money
Indebtedness” means (1) any indebtedness incurred for the payment of all or any
part of the purchase price of any fixed asset, (2) any indebtedness incurred
for
the sole purpose of financing or refinancing all or any part of the purchase
price of any fixed asset, and (3) any renewals, extensions or refinancings
thereof (but not any increases in the principal amounts thereof outstanding
at
that time); and (C) “Purchase Money Liens” means any Encumbrance upon any fixed
assets that secures the Purchase Money Indebtedness related thereto but only
if
such Encumbrance shall at all times be confined solely to the asset the purchase
price of which was financed or refinanced through the incurrence of the Purchase
Money Indebtedness secured by such Encumbrance and only if such Encumbrance
secures only such Purchase Money Indebtedness.
(f) it
will,
at its and the other Assignors’ joint and several cost and expense keep the
Collateral in good state of repair (ordinary wear and tear excepted) and will
not waste or destroy the same or any part thereof other than ordinary course
discarding of items no longer used or useful in its or such other Assignors’
business;
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(g) it
will
not, without Laurus’ prior written consent, sell, exchange, lease or otherwise
dispose of any Collateral, whether by sale, lease or otherwise, except for
the
sale of inventory in the ordinary course of business, obsolete inventory and
for
the disposition or transfer in the ordinary course of business during any fiscal
year of obsolete and worn-out equipment or equipment no longer necessary for
its
ongoing needs, having an aggregate fair market value of not more than $75,000
and only to the extent that:
(i) the
proceeds of each such disposition are used to acquire replacement Collateral
which is subject to Laurus’ first priority perfected security interest, or are
used to repay the Obligations or to pay general corporate expenses;
or
(ii) following
the occurrence of an Event of Default which continues to exist the proceeds
of
which are remitted to Laurus to be held as cash collateral for the
Obligations;
(h) it
will
insure or cause the Collateral to be insured in Laurus’ name (as an additional
insured and loss payee) against loss or damage by fire, theft, burglary,
pilferage, loss in transit and such other hazards as Laurus shall reasonably
specify in amounts and under policies by insurers reasonably acceptable to
Laurus and all premiums thereon shall be paid by such Assignor and the policies
delivered to Laurus. If any such Assignor fails to do so, Laurus may procure
such insurance and the cost thereof shall be promptly reimbursed by the
Assignors, jointly and severally, and shall constitute Obligations;
(i) it
will
at all reasonable times allow Laurus or Laurus’ representatives free access to
and the right of inspection of the Collateral;
(j) such
Assignor (jointly and severally with each other Assignor) hereby indemnifies
and
saves Laurus harmless from all loss, costs, damage, liability and/or expense,
including reasonable attorneys’ fees, that Laurus may sustain or incur to
enforce payment, performance or fulfillment of any of the Obligations and/or
in
the enforcement of this Master Security Agreement or in the prosecution or
defense of any action or proceeding either against Laurus or any Assignor
concerning any matter growing out of or in connection with this Master Security
Agreement, and/or any of the Obligations and/or any of the Collateral except
to
the extent caused by Laurus’ own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and nonappealable
decision);
(k) all
commercial tort claims (as defined in the Uniform Commercial Code as in effect
in the State of New York) held by any Assignor are set forth on Schedule C
to
this Master Security Agreement; each Assignor hereby agrees that it shall
promptly, and in any event within five (5) Business Days after the same is
acquired by it, notify Laurus of any commercial tort claim acquired by it and
unless otherwise consented to in writing by Laurus, it shall enter into a
supplement to this Master Security Agreement granting to Laurus a security
interest in such commercial tort claim, securing the Obligations;
and
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(l) On
or
prior to the Closing Date (or such later date as may be agreed by Laurus in
writing), each Assignor will (x) irrevocably direct all of its present and
future Account Debtors (as defined below) and other persons or entities
obligated to make payments constituting Collateral to make such payments
directly to the lockboxes maintained by such Assignor (the “Lockboxes”)
with
Bank of America, N.A. or such other financial institution accepted by Laurus
in
writing as may be selected by the Company (the “Lockbox
Bank”)
(each
such direction pursuant to this clause (x), a “Direction
Notice”)
and
(y) provide Laurus with copies of each Direction Notice, each of which shall
be
agreed to and acknowledged by the respective Account Debtor. The Lockbox Bank
shall agree to deposit the proceeds of such payments immediately upon receipt
thereof in that certain deposit account maintained at the Lockbox Bank and
evidenced by the account name of Modtech Holdings, Inc. and the account number
of 14962-02541, or such other deposit account accepted by Laurus in writing
(the
“Lockbox
Deposit Account”).
On or
prior to the Closing Date, the Company shall and shall cause the Lockbox Bank
to
enter into all such documentation acceptable to Laurus pursuant to which, among
other things, the Lockbox Bank agrees to, following notification by Laurus
(which notification Laurus shall only give following the occurrence and during
the continuance of an Event of Default), comply only with the instructions
or
other directions of Laurus concerning the Lockbox and the Lockbox Deposit
Account. All of each Assignor’s invoices, account statements and other written
or oral communications directing, instructing, demanding or requesting payment
of any Account (as hereinafter defined) of any such Assignor or any other amount
constituting Collateral shall conspicuously direct that all payments be made
to
the Lockbox or such other address as Laurus may direct in writing. If,
notwithstanding the instructions to Account Debtors, any Assignor receives
any
payments, such Assignor shall immediately remit such payments to the Lockbox
Deposit Account in their original form with all necessary endorsements. Until
so
remitted, the Assignors shall hold all such payments in trust for and as the
property of Laurus and shall not commingle such payments with any of its other
funds or property. For the purpose of this Master Security Agreement,
(x) “Accounts”
shall
mean all “accounts”,
as
such term is defined in the UCC as in effect in the State of New York on the
date hereof, now owned or hereafter acquired by any Assignor and (y)
“Account
Debtor”
shall
mean any person or entity who is or may be obligated with respect to, or on
account of, an Account.
4. The
occurrence of any of the following events or conditions shall constitute an
“Event
of Default”
under
this Master Security Agreement:
(a) any
covenant or any other term or condition of this Master Security Agreement is
breached in any material respect and such breach, to the extent subject to
cure,
shall continue without remedy for a period of twenty (20) days after the
occurrence thereof;
(b) any
representation or warranty, or statement made or furnished to Laurus under
this
Master Security Agreement by any Assignor or on any Assignor’s behalf should
prove to any time be false or misleading in any material respect on the date
as
of which made or deemed made;
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(c) the
loss,
theft, substantial damage, destruction, sale or encumbrance to or of any of
the
Collateral (except as may be expressly permitted by Section 3(e) and
Section 3(g) or the making of any levy, seizure or attachment thereof or
thereon except to the extent:
(i) such
loss
is covered by insurance proceeds which are used to replace the item or repay
Laurus; or
(ii) said
levy, seizure or attachment does not secure indebtedness in excess of $200,000
in the aggregate for all Assignors and such levy, seizure or attachment has
been
vacated, discharged, stayed or bonded within forty (40) days of the creation
or
the assertion thereof;
(d) an
Event
of Default shall have occurred under and as defined in any
Document.
5. Upon
the
occurrence of any Event of Default and at any time thereafter, Laurus may
declare all Obligations immediately due and payable and Laurus shall have the
remedies of a secured party provided in the UCC as in effect in the State of
New
York, this Agreement and other applicable law. Upon the occurrence of any Event
of Default and at any time thereafter, Laurus will have the right to take
possession of the Collateral and to maintain such possession on any Assignor’s
premises or to remove the Collateral or any part thereof to such other premises
as Laurus may desire. Upon Laurus’ request, each Assignor shall assemble or
cause the Collateral to be assembled and make it available to Laurus at a place
designated by Laurus. If any notification of intended disposition of any
Collateral is required by law, such notification, if mailed, shall be deemed
properly and reasonably given if mailed at least ten (10) days before such
disposition, postage prepaid, addressed to the applicable Assignor either at
such Assignor’s address shown herein or at any address appearing on Laurus’
records for such Assignor. Any proceeds of any disposition of any of the
Collateral shall be applied by Laurus to the payment of all expenses in
connection with the sale of the Collateral, including reasonable attorneys’ fees
and other legal expenses and disbursements and the reasonable expenses of
retaking, holding, preparing for sale, selling, and the like, and any balance
of
such proceeds may be applied by Laurus toward the payment of the Obligations
in
such order of application as Laurus may elect, and each Assignor shall be liable
for any deficiency. For the avoidance of doubt, following the occurrence and
during the continuance of an Event of Default, Laurus shall have the immediate
right to withdraw any and all monies contained in any deposit account in the
name of any Assignor and controlled by Laurus and apply same to the repayment
of
the Obligations (in such order of application as Laurus may elect). The parties
hereto each hereby agree that the exercise by any party hereto of any right
granted to it or the exercise by any party hereto of any remedy available to
it
(including, without limitation, the issuance of a notice of redemption,
a borrowing request and/or a notice of default), in each
case, hereunder, under the Securities Purchase Agreement or under any other
Related Agreement which has been publicly filed with the SEC
shall not constitute confidential information and no party
shall have any duty to the other party to maintain such information as
confidential.
6. If
any
Assignor defaults in the performance or fulfillment of any of the terms,
conditions, promises, covenants, provisions or warranties on such Assignor’s
part to be performed or fulfilled under or pursuant to this Master Security
Agreement, Laurus may, at its option without waiving its right to enforce this
Master Security Agreement according to its terms, immediately or at any time
thereafter and without notice to any Assignor, perform or fulfill the same
or
cause the performance or fulfillment of the same for each Assignor’s joint and
several account and at each Assignor’s joint and several cost and expense, and
the cost and expense thereof (including reasonable attorneys’ fees) shall be
added to the Obligations and shall be payable on demand with interest thereon
at
the highest rate permitted by law, or, at Laurus’ option, debited by Laurus from
any other deposit accounts in the name of any Assignor and controlled by
Laurus.
6
7. Each
Assignor appoints Laurus, any of Laurus’ officers, employees or any other person
or entity whom Laurus may designate as such Assignor’s attorney, with power to
execute such documents in each such Assignor’s behalf and to supply any omitted
information and correct patent errors in any documents executed by any Assignor
or on any Assignor’s behalf; to file financing statements against such Assignor
covering the Collateral (and, in connection with the filing of any such
financing statements, describe the Collateral as “all
assets and all personal property, whether now owned and/or hereafter
acquired”
(or
any
substantially similar variation thereof)); to sign such Assignor’s name on
public records; and to do all other things Laurus deem necessary to carry out
this Master Security Agreement. Each Assignor hereby ratifies and approves
all
acts of the attorney and neither Laurus nor the attorney will be liable for
any
acts of commission or omission, nor for any error of judgment or mistake of
fact
or law other than gross negligence or willful misconduct (as determined by
a
court of competent jurisdiction in a final and non-appealable decision). This
power being coupled with an interest, is irrevocable so long as any Obligations
remains unpaid.
8. No
delay
or failure on Laurus’ part in exercising any right, privilege or option
hereunder shall operate as a waiver of such or of any other right, privilege,
remedy or option, and no waiver whatever shall be valid unless in writing,
signed by Laurus and then only to the extent therein set forth, and no waiver
by
Laurus of any default shall operate as a waiver of any other default or of
the
same default on a future occasion. Laurus’ books and records containing entries
with respect to the Obligations shall be admissible in evidence in any action
or
proceeding, shall be binding upon each Assignor for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof.
Laurus shall have the right to enforce any one or more of the remedies available
to Laurus, successively, alternately or concurrently. Each Assignor agrees
to
join with Laurus in executing such documents or other instruments to the extent
required by the UCC in form satisfactory to Laurus and in executing such other
documents or instruments as may be required or deemed necessary by Laurus for
purposes of affecting or continuing Laurus’ security interest in the
Collateral.
9. The
Assignors shall jointly and severally pay all of Laurus’ out-of-pocket costs and
expenses, including reasonable fees and disbursements of in-house, or outside
counsel and appraisers, in connection with the preparation, execution and
delivery of the Documents, and of outside counsel and appraisers in connection
with the prosecution or defense of any action, contest, dispute, suit or
proceeding concerning any matter in any way arising out of, related to or
connected with any Document. The Assignors shall also jointly and severally
pay
all of Laurus’ reasonable fees, charges, out-of-pocket costs and expenses,
including fees and disbursements of counsel and appraisers, in connection with
(a) the preparation, execution and delivery of any waiver, any amendment thereto
or consent proposed or executed in connection with the transactions contemplated
by the Documents, (b) Laurus’ obtaining performance of the Obligations under the
Documents, including, but not limited to the enforcement or defense of Laurus’
security interests, assignments of rights and liens hereunder as valid perfected
security interests, (c) any attempt to inspect, verify, protect, collect, sell,
liquidate or otherwise dispose of any Collateral, (d) not more than one time
per
year, any appraisal or re-appraisal of any property (real or personal) pledged
to Laurus by any Assignor as Collateral for, or any other Person as security
for, the Obligations hereunder (provided, upon the occurrence of an Event of
Default, Assignors shall be obligated to pay the costs and expenses of any
and
all additional such appraisals and re-appraisals as are deemed necessary by
Laurus in its reasonable discretion) and (e) any consultations in connection
with any of the foregoing. The Assignors shall also jointly and severally pay
Laurus’ customary bank charges for all bank services (including wire transfers)
performed or caused to be performed by Laurus for any Assignor at any Assignor’s
request or in connection with any Assignor’s loan account (if any) with Laurus.
All such costs and expenses together with all filing, recording and search
fees,
taxes and interest payable by the Assignors to Laurus shall be payable on demand
and shall be secured by the Collateral. If any tax by any nation or government,
any state or other political subdivision thereof, and any agency, department
or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (each, a “Governmental
Authority”)
is or
may be imposed on or as a result of any transaction between any Assignor, on
the
one hand, and Laurus on the other hand, which Laurus is or may be required
to
withhold or pay (other than (x) any tax based on or measured by net income
or
otherwise in the nature of a net income tax, including without limitation any
franchise tax or any similar tax based on capital, net worth or comparable
basis
measurement), the Assignors hereby jointly and severally indemnify and hold
Laurus harmless in respect of such taxes, and the Assignors will repay to Laurus
the amount of any such taxes which shall be charged to the Assignors’ account;
and until the Assignors shall furnish Laurus with indemnity therefor (or supply
Laurus with evidence satisfactory to it that due provision for the payment
thereof has been made), Laurus may hold without interest any balance standing
to
each Assignor’s credit (if any) and Laurus shall retain its liens in any and all
Collateral.
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10. THIS
MASTER SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
All of the rights, remedies, options, privileges and elections given to Laurus
hereunder shall inure to the benefit of Laurus’ successors and assigns. The term
“Laurus”
as
herein used shall include Laurus, any parent of Laurus’, any of Laurus’
subsidiaries and any co-subsidiaries of Laurus’ parent, whether now existing or
hereafter created or acquired, and all of the terms, conditions, promises,
covenants, provisions and warranties of this Agreement shall inure to the
benefit of each of the foregoing, and shall bind the representatives, successors
and assigns of each Assignor.
11. Each
Assignor hereby consents and agrees that the state of federal courts located
in
the County of New York, State of New York shall have exclusive jurisdiction
to
hear and determine any claims or disputes between Assignor, on the one hand,
and
Laurus, on the other hand, pertaining to this Master Security Agreement or
to
any matter arising out of or related to this Master Security Agreement,
provided, that Laurus and each Assignor acknowledges that any appeals from
those
courts may have to be heard by a court located outside of the County of New
York, State of New York, and further provided, that nothing in this Master
Security Agreement shall be deemed or operate to preclude Laurus from bringing
suit or taking other legal action in any other jurisdiction to collect, the
Obligations, to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of Laurus.
Each Assignor expressly submits and consents in advance to such jurisdiction
in
any action or suit commenced in any such court, and each Assignor hereby waives
any objection which it may have based upon lack of personal jurisdiction,
improper venue or forum non conveniens.
Each
Assignor hereby waives personal service of the summons, complaint and other
process issues in any such action or suit and agrees that service of such
summons, complaint and other process may be made by registered or certified
mail
addressed to such assignor at the address set forth on the signature lines
hereto and that service so made shall be deemed completed upon the earlier
of
such Assignor’s actual receipt thereof or three (3) days after deposit in the
U.S. mails, proper postage prepaid.
8
The
parties desire that their disputes be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits
of
the judicial system and of arbitration, the parties hereto waive all rights
to
trial by jury in any action, suite, or proceeding brought to resolve any
dispute, whether arising in contract, tort, or otherwise between Laurus, and/or
any Assignor arising out of, connected with, related or incidental to the
relationship established between them in connection with this Master Security
Agreement or the transactions related hereto.
12. It
is
understood and agreed that any person or entity that desires to become an
Assignor hereunder, or is required to execute a counterpart of this Master
Security Agreement after the date hereof pursuant to the requirements of any
Document, shall become an Assignor hereunder by (x) executing a Joinder
Agreement in form and substance satisfactory to Laurus, (y) delivering
supplements to such exhibits and annexes to such Documents as Laurus shall
reasonably request and (z) taking all actions as specified in this Master
Security Agreement as would have been taken by such Assignor had it been an
original party to this Master Security Agreement, in each case with all
documents required above to be delivered to Laurus and with all documents and
actions required above to be taken to the reasonable satisfaction of
Laurus.
[Remainder
of This Page Intentionally Left Blank]
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13. All
notices from Laurus to any Assignor shall be sufficiently given if given in
accordance with the requirements set forth in Section 11.8 of the Securities
Purchase Agreement and if mailed or delivered to such Assignor’s address set
forth below.
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Very
truly yours,
MODTECH
HOLDING, INC.
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Address:
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| ACKNOWLEDGED: | ||
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LAURUS
MASTER FUND, LTD.
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Name:
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Title:
Address:
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SCHEDULE
A
|
Entity
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Jurisdiction
of
Formation
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Organization
Identification Number
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Modtech
Holdings, Inc.
|
Delaware
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2949031
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SCHEDULE
B
COMMERCIAL
TORT CLAIMS
None.