FACILITY LOAN AGREEMENT
Exhibit 10.45
This FACILITY LOAN
AGREEMENT (this “Agreement”) is made by and between Invisa, Inc. (the “Company”)
and Friday Harbour, LLC (the “Lender”).
WHEREAS,
the Company has experienced a severe cash shortage as described in the
Company’s 10-Q for the fiscal quarter ended March 31, 2005;
WHEREAS, the Company has an
immediate need for a debt facility providing assured access to up to $50,000 to
maintain current operations and to retain or rehire certain essential
employees;
WHEREAS,
the Company desires to have the potential to expand the debt facility
for an additional $50,000 for up to $100,000 if needed to establish more
long-term financing;
WHEREAS,
the Company requested that Lender provide the needed debt
facility;
WHEREAS, the owners and
managers of Lender have certain equity interests in the Company and desire that
the Company have an opportunity to remain operational, retain or rehire certain
essential employees and pursue its potential for success; and
WHEREAS, after arm’s length
negotiations, the Lender is willing to make the requested debt facility
available to the Company on the terms and conditions contained in the
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
ARTICLE 1
RECITALS AND DEFINITIONS
1.1 Incorporation of Recitals.
It is expressly agreed that the recitals to this Agreement are incorporated
herein and made an operative part of this Agreement.
1.2 Defined Terms. As used in
this Agreement, the following terms shall have the following meanings. Other
capitalized terms are defined elsewhere herein.
“Advance” shall
mean a good faith advance in the amount of $10,000 that was made by Lender to
the Company on May 24, 2005, to meet the Company’s immediate cash needs pending
the finalization and execution of a definitive Facility agreement;
“Business Day”
shall mean a day other than a Saturday or Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close.
“Commitment
Termination Date” shall mean twelve months from the effective date of this
Agreement.
“Common Stock”
shall mean the shares of common stock, par value $.001 per share, of the
Company.
“Conversion Notice”
shall mean a written notice given by Lender in person, by mail or by fax to the
Company of its election to convert the Loan Amount into Common Stock.
“Conversion Price”
shall mean the closing price of the Company’s stock on May 24, 2005, which was
$0.075 (seven and one half cents) per share, subject to proportional adjustment
in the event the Company; (a) pays a dividend or makes a distribution on its
Common Stock in the form of Common Stock; (b) subdivides its outstanding shares
of Common Stock into a greater number of shares; (c) combines its outstanding
shares of Common Stock into a smaller number of shares; or (d) issues by
reclassification of its Common Stock, or by merger or reorganization, any
interests of the Company or any successor entity. In the event of any such
occurrences, the Conversion Price shall be proportionately adjusted to a price
that would have permitted the Lender to receive the aggregate number of shares
of Common Stock which the Lender would have owned immediately following such
action if the Lender had exercised its right to convert the Loan Amount
immediately prior to such action. The adjustment shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification.
“Default” shall
mean any event, act of condition which with notice or lapse of time, or both,
would constitute an Event of Default.
“Effective Date” of this Agreement and the Facility shall mean the
date on which this Agreement is signed by the last party required on the
signature page to execute same.
“Expansion Facility” shall mean the potential increase in the size
of the Facility Amount from $50,000 to $100,000 under the terms of this
Agreement which expansion may be implemented during the term of the Facility by
the mutual written agreement of Lender and the Company.
“Event of Default”
shall mean any of the events specified in Section 7; provided that any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
“GAAP” shall mean
generally accepted accounting principles in the United States of American in
effect form time to time.
“Loan Amount” shall
mean the amount of all outstanding Loans under the Facility including any
interest accrued thereon.
“Maturity Date”
shall mean the first to occur of: (i) the Commitment Termination Date (May 24,
2006), (ii) the date on which the Company closes an Agreement to merge, or for a
Subsidiary of the Company to merge (including a reverse triangular merger), with
a third party, or (iii) the date on which the Company enters into a commitment
for an investment in the amount of $500,000 or greater.
“Facility” shall
mean the $50,000 convertible credit facility to be provided by the Lender to the
Company pursuant to this Agreement and the Expansion Facility if implemented by
mutual written agreement of Lender and the Company.
“Facility Amount”
shall mean $50,000. Upon implementation of the Expansion Facility by mutual
written agreement of Lender and the Company, the Facility Amount shall mean
$100,000. The Advance shall be deemed part of the Facility Amount.
“Person” shall mean
an individual, partnership, corporation, Limited Liability Company, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
“Requirement of
Law” shall mean as to any Person, the certificate of incorporation and by-laws
or other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any or its material property or to which such Person or any of its material
property is subject.
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“Securities Act”
shall mean the Securities Act of 1933, as amended from time to time.
“Subsidiary” shall
mean, with respect to any Person, any other Person whose shares of stock or
other security having a majority of the general voting power in electing the
board of directors or equivalent governing body of such other Person are, at the
time as of which any determination is made, owned by such Person either directly
or indirectly through one or more entities constituting subsidiaries.
1.3 Other Definitional
Provisions.
(a) The words “hereof”, “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection and Exhibit references are to this Agreement
unless otherwise specified.
(b) The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms.
(c) “Includes” “including” and like
expressions are not limiting, i.e., “including” implies “including, without
limitation,” etc.
(d) “Or” shall have the meaning
ordinarily attributed to “and/or.”
ARTICLE 2
THE LOANS
2.1 Agreement to Make Loans.
Subject to the terms and conditions hereof, Lender agrees to make loans to the
Company up to an aggregate amount equal to the Facility Amount giving effect to
the Advance. Notwithstanding the aggregate amount of Loans then made, Lender’s
obligation to continue to make loans hereunder shall terminate (however Lender
shall retain the right without obligation under Section 3.2(c) to voluntarily
make additional Loans up to the Facility Amount) on the first to occur of: (i)
the Commitment Termination Date (May 24, 2006), (ii) the date on which the
Company closes an Agreement to merge, or for a Subsidiary of the Company to
merge (including a reverse triangular merger), with a third party, or (iii) the
date on which the Company enters into a commitment for an investment in the
amount of $500,000 or greater. As used herein, the term “Loan” or “Loans” shall
mean the loans made by the Lender in accordance with this Section 2.1. Any Loan,
when repaid, may not be re-borrowed.
2.2 Notes. In order to
evidence each Loan made under this Facility, the Lender may require the Company
to execute and deliver to Lender a promissory note, payable to the order of the
Lender and in a principal amount equal to the amount loaned. In the absence of a
Note for any (or all Loans), Lender’s cancelled check or, in the absence of a
cancelled check, the Company’s books, shall serve as confirmation of the Loan
and the Loan shall have the terms provided in this Agreement.
2.3 Procedure for Making
Loans.
(a) Subject to the terms and
conditions herein, each Loan shall be made as the Company shall request subject
to and in accordance with this Section 2.3. The Company shall give the Lender at
least seven (7) Business Days’ prior written notice of each requested borrowing
(unless the Lender in its sole discretion consents to a shorter period of
notice). Each such notice shall be irrevocable and shall specify the amount
requested and the date that such Loan is to be made.
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(b) On the Funding Date specified in
such notice, the Lender shall make the Loan available to the Company by
check.
(c) Unless otherwise agreed by the
Lender, any borrowing hereunder shall be in accordance with a written schedule
of Loans to be jointly established and subject to the mutual written agreement
of Lender and the Company.
2.4 Repayment of Loan Amounts.
The Loans, if not earlier converted into Common Stock in accordance with Section
3.2, hereof or accelerated upon or below, shall be due and payable, together
with all accrued and unpaid interest thereon on the Maturity Date. Unless a
payment is received at a time when no Default or Event of Default exists and is
earmarked for a specific purpose (e.g., a periodic interest payment), the
general rule for application of payments to the Obligations shall call for
application: (i) first, to accrued expense or indemnity Obligations then due
under this Agreement or any Note; (ii) second, to accrued interest under any
Note; and (iii) third, to principal of the Loans.
2.5 Voluntary Prepayment. The
Company may voluntarily prepay all or any portion of the outstanding Obligations
to the Lender without penalty.
ARTICLE 3
OTHER LOAN-RELATED PROVISIONS
3.1 Interest Rate and
Payments. No interest shall be charged or paid on any Loan hereunder for
ninety (90) days from the Effective Date (“Interest Xxxxxxxx”). Following said
Interest Xxxxxxxx; the outstanding principal of all Loans hereunder shall accrue
interest at the rate of ten percent (10%) per annum, until the Loan is paid in
full. All interest and principal outstanding under any Note shall be payable on
the Maturity Date or such earlier date upon which the Note or any relevant
portion thereof shall be repayable in accordance with the terms hereof.
3.2 Conversion of the
Facility. The Facility Amount (regardless of the Loan Amount then or ever
outstanding) shall be convertible at the sole discretion of the Lender into
shares of Common Stock of the Company, subject to and in accordance with the
provisions set forth below:
(a) Conversion Term. Upon the
giving of a Conversion Notice at any time prior to May 24, 2006, the Lender may,
in its sole discretion, convert all or any portion of the Facility Amount into
shares of Common Stock (“Conversion”).
(b) Conversion Price. The
number Shares of Common Stock to be issued to Lender upon the conversion shall
be determined by dividing the Facility Amount (including the Expanded Facility
Amount, if the Facility has been expanded by mutual written agreement of Lender
and the Company) plus accrued but unpaid interest by the applicable Conversion
Price then in effect (the “Conversion Shares”).
(c) Mechanics of Conversion.
Upon receipt by the Company of a Conversion Notice, the Company shall promptly
issue and deliver to the Lender a certificate or certificates for the number of
shares of Common Stock to which the Lender is entitled based upon the then
applicable Conversion Price. To the extent that the Loan Amount outstanding
under the Facility (or Expanded Facility, if the Facility has been expanded by
mutual written consent of Lender and the Company) on the date of Conversion
Notice is less than the Facility Amount, the Lender shall deliver to the Company
a check in an amount that brings the Loan Amount outstanding on the date of the
Conversion Notice up to an amount equal to the Facility Amount.
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(d) Fractional Shares. No
fractional shares of Common Stock shall be issued upon conversion of all or any
portion of the Facility Amount as provided for herein. All fractional shares
shall be rounded to the nearest whole share.
(e) Piggyback Registration
Rights. At any time while the Lender has the right to Convert or holds any
shares received on Conversion, the Lender shall have the right to require the
Company to include, at the Company’s cost, any shares of Common Stock received
(or which may be received upon Conversion) by the Lender upon Conversion of all
or any portion the Facility Amount (including the Expanded Facility Amount, if
the Facility has been expanded by mutual written agreement of Lender and the
Company) in any registration statement filed by the Company with the U. S.
Securities and Exchange Commission (“Piggy Back Registration Right”) provided
that (i) the registration form is applicable to the Piggy Back Registration
Right, (ii) if there is an underwriter, the underwriter does not reasonably
object to the inclusion of the shares covered by the Piggy Back Registration
Right and (iii) the exercise of the Piggy Back Registration Right does not
breach or violate any restriction on piggy back registration in the subject
registration statement. Whenever the Lender requests inclusion in any
registration statement, the Company shall use its commercially reasonable
efforts to effect the registration. In connection with any registration
statement in which the Lender is participating pursuant to this Section, the
Lender shall furnish to the Company in writing such information and affidavits
as the Company reasonably requests for use in connecting with any such
registration statement or prospectus.
ARTICLE 4
REPRESENTATIONS, WARRANTS AND COVENANTS OF THE COMPANY
The Company hereby
represents, warrants and covenants to the Lender as of the date hereof
that:
4.1 Existence. The
Company: (a) is duly organized, validly existing and in good standing under the
laws of the State of Nevada and (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged.
4.2 Power: Authorization:
Enforceable Obligations. The Company: (i) has the power and authority, and
the legal right, to make, deliver and perform this Agreement, entered into the
Facility, borrow funds from Lender, execute Loans hereunder, issue shares of the
Company’s Common Stock upon Conversion, and include the Conversion Shares in any
Registration Statement filed by the Company (ii) has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and the
borrowing of the Loans on the terms and conditions of this Agreement and the
conversion of the principal amounts of the Loans outstanding or the Obligations,
as applicable, for shares of Common Stock on the terms and under the
circumstances provided for herein. No consent or authorization of, filing with,
notice to or other similar act by or in respect of, any Governmental Authority
or any other Person (including Persons who are beneficiaries of Contractual
Obligations of the Company) is required to be obtained or made by or on behalf
of the Company in connection with the execution, delivery, performance, validity
or enforceability of this Agreement, the borrowing of the Loan hereunder or the
conversion of the principal amounts of the Loans outstanding plus accrued
interest for shares of Common Stock on the terms an under the circumstances
provided for in Section 3.2 hereof. This Agreement has been duly executed and
delivered by the Company. This Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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4.3 No Legal or Contractual
Bar. The borrowing of the Loans hereunder and the use of the proceeds
thereof by the Company and the conversion of the principal amounts of the Loans
outstanding plus accrued interest for shares of Common Stock under the
circumstances provided for herein: (a) do not and will not violate any
Requirement of Law or Contractual Obligation of the Company or permit the
acceleration of any obligation of the Company pursuant to any such Contractual
Obligation and (b) do not and will not result in, or require, the creation of
imposition of any Lien on any of the Company’s properties or revenues pursuant
to any such Requirement of Law or Contractual Obligation.
4.4 Litigation. There are no:
(i) actions, suits or legal, equitable, arbitrative or administrative
proceedings pending, or to the knowledge of the Company, threatened against the
Company or (ii) judgments, injunctions, writs, ruling or orders by any
Governmental Authority against the Company.
4.5 Certain Regulations. The
Company is not (a) an “investment company,” or a company “controlled by an
“investment company,” within the meaning of the Investment Company Act of 1940;
(b) a “holding company,” or an “affiliate” of a “holding company” or a
“Subsidiary company:” of a “holding company,” within the meaning of the Public
Utility Holding Company Act of 1935; or (c) to the knowledge of the Company,
subject to any other law, regulation or order restricting its ability to incur
debt or to grant Liens.
4.6 Compliance with Laws. The
Company has obtained all material approvals required by any Governmental
Authority to carry on its business as now being conducted. Each of such
approvals is in full force and effect and the Company is in compliance in all
material respects with the terms and conditions of such approvals, and is also
in compliance in all material respects with all other provisions of any
applicable environmental law.
4.7 Brokers. No broker or
finder has acted for the Company in connection with this Agreement or the
transactions contemplated thereby, and no broker or finder is entitled to any
brokerage or finder’s fees or other commission in respect of such transactions
based in any way on agreements, arrangements or understandings made by or on
behalf of the Company.
4.8 Waiver. The Company has
waived any potential conflict of interest which could otherwise ever be asserted
against the Lender and its managers and owners arising out of matters relating
to this Agreement or the Facility.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby
represents and warrants to the Company that:
5.1 Investment Experience: Access:
Investigation.
(a) Access to
Information. The Lender, in making its investment decision
hereunder, represents that: (a) it has read, reviewed and relied solely on the
publicly available information concerning the Company and any independent
investigation made by it and its representatives, if any; (b) it has been
afforded an opportunity to request from the Company to review, and has received,
all additional information requested from the Company, (c) it acknowledges that
no person has been authorized to give any information or to make any
representation concerning the Company or the Loans, other than as contained in
this Agreement, and if given or made, any such other information or
representation has not been relied upon as having been authorized by the
Company.
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(b) Reliance on own
Advisors. The Lender has relied completely on the advice of, or has
consulted with, his or her own personal tax, investment, legal or other advisors
and has not relied on the Company, or any of their affiliates, officers,
directors, attorneys, accountants, representatives, agents, advisors or any
affiliates or any of the foregoing and each other person, if any who controls
any of the foregoing, within the meaning of Section 15 of the Securities Act,
for any advice.
(c) Capability to
Evaluate. The Lender has such knowledge and experience in financial
and business matters, either directly or through its representatives or
advisors, that it is capable of evaluating the merits and risks of the
prospective investment, which risks are substantial.
(d) Ability to Bear Economic
Risk. The Lender understands and acknowledges that an investment in
the Notes and the shares of Common Stock involve a high degree of risk. The
Lender acknowledges that it has the ability to bear the economic risk of its
investment pursuant to this Agreement.
(e) Investment; No
Distribution. The Lender is acquiring the Notes and the Common
Stock solely for the Lender’s own account for investment purposes as a principal
and not with a view to the resale or distribution of all or any part thereof.
The Lender is aware that there may be legal and practical limits on the Lender’s
ability to sell or dispose any of the Notes and the Common Stock and, therefore,
that the Lender must bear the economic risk of its investment for an indefinite
period of time. It is possible that the Lender may incur a total loss of its
investment. Lender is aware that the Notes and the Conversion Shares, while
subject to Piggy Back Registration Rights, have not been registered and are
therefore restricted as to transfer under the applicable federal securities
laws. The Lender has adequate means of providing for the Lender’s current needs
and possible contingencies and does not have a need for liquidity of this
investment. The Lender’s commitment to illiquid investments, including the
investments provided for herein, is reasonable in relation to the Lender’s net
worth.
(f) No General
Solicitation. None of the Notes and the Common Stock were offered
to the Lender through, and the Lender is not aware of, any form of general
solicitation or general advertising with respect to this Agreement and the
transactions contemplated hereby, including, without limitation: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television, radio or via
the Internet, and (ii) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. The Lender further
understands that the Company is relying in part on this representation to ensure
compliance with the Securities Act.
ARTICLE 6
CONDITIONS OF LENDING
The obligation of
the Lender to make any Loan hereunder is subject to the following conditions
precedent, each of which may be waived in the discretion of the Lender:
6.1 Representations and
Warranties. Each of the representations and warranties made by the Company
pursuant to this Agreement (or in any amendment, modification or supplement
hereto or thereto) shall, except to the extent that they relate to a particular
date, be true and correct in all material respects on and as of such date as if
made on and as of such date.
6.2 No Default. The Company
shall have complied with each and every covenant and agreement applicable to it
contained in this Agreement and no Event of Default shall have occurred and be
continuing on such date or after giving effect to the applicable Loan.
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6.3 Other Documentation. The
Lender shall have received such other documentation and information as it may
reasonably request.
6.4 No Material
Change. After the date hereof, the Company does not experience any
adverse change, which Lender reasonably considers material, in: (i) its
business, (ii) its ability to continue to conduct or remain in business, (iii)
its business prospects, (iv) the trading market for its Common Stock, (v) its
ability to retain essential personnel, (vi) pending or threatened litigation or
(vii) any representation made herein.
ARTICLE 7
EVENTS OF DEFAULT
7.1 Event of Default. The
following are Events of Default under this Agreement and under all Loans and
Notes hereunder:
(a) The Company shall fail to pay:
(i) any principal of the Loan when due in accordance with the terms hereof of
(ii) any interest on the Loan, in either case within then (10) Business Days of
the date when due in accordance with the terms hereof; or
(b) The Company shall default in the
observance or performance of any other covenant or agreement contained in this
Agreement and such default continues for fifteen (15) days after the date that
the Lender has given written notice to the Company specifying such default and
requiring that it be remedied; or
(c) (i) The Company shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Company shall make a general assignment for the benefit of its creditors, or (C)
cease doing business in the ordinary course; or (ii) there shall be commenced
against the Company any case, proceeding or other action or a nature referred to
in clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged,
unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Company any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
such relief which shall not have been vacated, discharged, stayed or bonded
pending appeal within 50 days from the entry thereof; or (iv) the Company shall
take any corporate action in furtherance of, or indicating its consent to,
approval of or acquiescence in any of the acts set fort in clause (i), (ii), or
(iii) above; or (v) the Company shall be generally unable to, or shall admit in
writing its general inability to, pay its debts as they become due; or
(d) Any representation or warranty
made by the Company under this Agreement shall be false or incorrect in any
material respect on the date such representation or warranty was made; or
(e) This Agreement or any Note shall,
for any reason, fail or cease to be enforceable in any material respect;
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then, and in any
such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of subsection (c) above, with respect to the Company, automatically the
Loan hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement or any Note shall immediately become due and payable, (B) if such
event is any other Event of Default, the Lender may, by written notice to the
Company, declare the Loan hereunder (with accrued but unpaid interest thereon)
and all other amounts owing under this Agreement or any Note to be due and
payable forthwith, whereupon the same shall immediately become due and payable,
(C) the Lender may exercise all rights and remedies available to it in equity,
at law, or pursuant to the provisions of this Agreement or otherwise, (D) the
Lender may terminate its commitment to make any future Loans to the Company (and
such commitment automatically shall terminate if such event is an Event of
Default specified in clause (i) or (ii) of subsection (c) above with respect to
the Company).
7.2 Remedies Not Exclusive.
The remedies conferred upon or reserved to the Lender in this Section 8 are
intended to be in addition to, and not in limitation of, any other remedy or
remedies available to the Lender.
ARTICLE 8
MISCELLANEOUS
8.1 Indemnification by the
Company. The Company agrees to indemnify, defend and hold harmless the
Lender and each of its successors, assigns, heirs, Subsidiaries, Affiliates and
all of the officers, directors, employees, partners, owners and agents
(including attorneys and accountants) of each of the aforementioned Persons, and
each of them from and against any and all losses, claims, damages, liabilities,
reasonable expenses, costs of collection or foreclosure, workout or
restructuring expenses, reasonable attorney’s fees and disbursements, demands,
causes of action, suits, debts, obligations, rights, promises, acts, agreements
and damages of any kind or nature whatsoever, whether at law or in equity,
whether known or unknown, foreseen or unforeseen, heretofore or hereafter
arising out of, relating to, or connected with this Agreement, any Loan, Note or
Conversion under this Agreement and potential conflict of interest of Lender
waived herein or the failure of any representation or warranty made by the
Company herein or in any other documents or agreements contemplated hereby to be
true in all material respects or the failure of the company to comply in all
material respects with the covenants and agreements contained in this Agreement
or in any other documents or agreements contemplated hereby (but excluding (i)
any such losses, claims, damages, liabilities, expenses, demands, causes of
action, suits, debts, obligations, rights, promises, acts, agreements and
damages of the Lender to the extent incurred by reason of the gross negligence
or willful misconduct of the Lender or (ii) litigation solely between the
Company, on the one hand, and the Lender, on the other hand, in connection with
this Agreement, any Note or in any way relating to the transactions contemplated
hereby or thereby if, after final non-appealable judgment, the Lender is not the
prevailing party or parties in such litigation). The agreements in this
subsection shall survive the termination of this Agreement.
8.2 Amendments. This Agreement
and any terms hereof may not be amended, supplemented or modified except
pursuant to a writing signed by both the Lender and the Company.
8.3 Notices. All notices,
requests and demands to or upon the respective parties hereto be effective shall
be in writing (including by facsimile transmission), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered: (a) by hand, upon receipt or (b) three (3) days after being deposited
in the mail, postage prepaid, or (c) in the case of facsimile transmission
notice, when received (with confirmation of receipt), or (d) in the case of
delivery by a nationally recognized overnight courier, when received, in each
case addressed to such addresses or fax number as may be hereafter notified by
the respective parties hereto.
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8.4 Successors and Assigns.
The Company may not assign its rights or obligations under this Agreement or the
Note without the consent of the Lender. This Agreement shall be binding upon and
inure to the benefit of the Company and the Lender and their respective
successors and permitted assigns.
8.5 Further Assurances. Each
party hereto, at the reasonable request of the other party hereto, shall execute
and deliver such other instruments and do and perform such other acts and things
as may be necessary or desirable for effecting completely the consummation of
this Agreement and the transactions contemplated hereby.
8.6 Captions. The captions of
the Sections of this Agreement have been inserted for convenience only and shall
have no substantive effect.
8.7 Counterparts. This
Agreement may be executed in any number of counterparts (including by
facsimile), each of which when so executed shall be deemed to be an original and
all of which counterparts together shall constitute one and the same
instrument.
8.8 Severability. Any
provision of this Agreement which is prohibited or enforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render enforceable such provision in any other jurisdiction.
8.9 WAIVER OF JURY TRIAL. TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE
COMPANY AND THE LENDER HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION
ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE SUBJECT MATTER HEREOF, ANY NOTE
OR THE SUBJECT MATTER THEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH OF THE COMPANY AND
THE LENDER ACKNOWLEDGE THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO
THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH
SUCH OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS
AGREEMENT. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPANY AND THE LENDER
TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
8.10 GOVERNING LAW. THIS
AGREEMENT AND ANY NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT AND ANY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO
ANY CONFLICTS OF LAW PROVISIONS THEREOF.
10
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on their behalf as of he date first above
written.
|
LENDER
FRIDAY
HARBOUR, LLC | ||
| |
|
|
| Date: June 1, 2005 | By: | /s/ Xxxxx Xxxxxx |
|
Xxxxx Xxxxxx | ||
| Title: Manager | ||
|
COMPANY
INVISA, INC. | ||
| |
|
|
| Date: June 1, 2005 | By: | /s/ Xxxxxxx X. Xxxxxxx |
|
Xxxxxxx A. Xxxxxxx | ||
| Title: Acting President | ||
