Exhibit 10.61
FINANCING AGREEMENT
THIS FINANCING AGREEMENT ("Financing Agreement") is dated as of May 9,
2003, by and between INVISA, INC., a Nevada corporation, with headquarters
located at 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 ("Company"), and
Barbell Group Inc., a Panama corporation (who, together with permitted assigns,
will be collectively referred to herein as the "Lender").
W I T N E S S E T H
WHEREAS, the Company wishes to induce the Lender to loan to the
Company, and the Lender is willing to loan to the Company, subject to the terms
and conditions set forth herein Two Hundred Fifty Thousand and 00/100
($250,000.00) Dollars.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreement contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. LOAN. (a) Subject to the terms and conditions set forth herein, the
Lender shall loan to the Company Two Hundred Fifty Thousand and 00/100
($250,000.00) Dollars (the "Loan").
(b) In consideration of the Loan and to collateralize the
Company's obligations hereunder and under the Related Agreements (as defined
below in Paragraph 3(b)), the Company shall issue its 2003A 7% Convertible Note
(the "Note") for the principal amount of the Loan substantially in the form of
Exhibit A, payable to the order of the Lender.
2. Reserved.
3. MUTUAL DELIVERIES.
(a) Upon the funding by the Lender of the Loan as provided in
Section 1 above,
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the Company shall deliver to the Lender the Note.
(b) The Company shall also deliver, or cause to be delivered,
the original or execution copies of the following instruments and agreements
duly executed by all parties thereto other than the Lender (together with the
Note - the "Related Agreements"):
(i) this Financing Agreement;
(ii) the Registration Rights Agreement in the form
attached as Exhibit B;
(iii) Stock Pledge Agreement and Exhibits thereto (in
the form attached as Exhibit C), together with the Certificates and Stock
Powers;
(iv) the opinions of counsel in the form attached as
Exhibit D.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Lender that except as described in the Company's
reports filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "Reports"):
(a) The Company has the corporate power and authority to enter
into this Financing Agreement and the Related Agreements and to perform its
obligations hereunder and thereunder. The execution and delivery by the Company
of this Financing Agreement and the Related Agreements and the consummation by
the Company of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the Company. This
Financing Agreement and the Related Agreements have been duly executed and
delivered by the Company and constitute valid and binding obligations of the
Company enforceable against it in accordance with their respective terms,
subject to the effects of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and to the
application of equitable principles in any proceeding (legal or equitable).
(b) The execution, delivery and performance by the Company of
this Financing Agreement and the Related Agreements and the consummation of the
transactions contemplated
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hereby and thereby do not and will not breach or constitute a default under any
applicable law or regulation or of any agreement, judgment, order, decree or
other instrument binding on the Company which breach or default could reasonably
by expected to have a material and adverse effect on the Company.
(c) Except as set forth in Schedule 4(c) hereto, the Company is
in material compliance with all applicable laws, regulations, judgments, decrees
and orders material to the conduct of its business.
(d) Except as set forth in Schedule 4(d) hereto or the Reports,
there is no pending, or to the knowledge of the Company, threatened, judicial,
administrative or arbitral action, claim, suit, proceeding or investigation
against the Company, which affect the validity or enforceability of this
Financing Agreement or the Related Agreements or which involves the Company and
which if adversely determined, could reasonably be expected to have a material
adverse effect on the financial condition of the Company.
(e) Except for filings that may be required under federal or
state securities laws, no consent or approval of, or exemption by, or filing
with, any party or governmental or public body or authority is required in
connection with the execution, delivery and performance under this Financing
Agreement or the Related Agreements or the taking of any action contemplated
hereunder or thereunder.
(f) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Nevada. The
Company is duly qualified and licensed and in good standing as a foreign
corporation in each jurisdiction in which its current ownership or leasing of
any properties or its ownership or leasing of any properties or the character of
its operations as currently conducted requires such qualification or licensing,
except where the failure to be so qualified would not have a material adverse
effect on the Company. The Company has all corporate power and authority, and
has obtained all necessary authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all
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governmental or regulatory officials and bodies necessary to own or lease its
properties and conduct its business as currently conducted other than those
authorizations, approvals and such other documents the lack of which could not
reasonably be expected to have a material and adverse effect on the Company.
(g) The execution, delivery and performance of this Financing
Agreement by the Company and the Related Agreements to be delivered hereunder
and the consummation of the transactions contemplated hereby and thereby will
not: (i) violate any provision of the Company's articles of incorporation or
bylaws, (ii) violate, conflict with or result in the breach of any of the terms
of, result in a material modification of the effect of, otherwise, give any
other contracting party the right to terminate, or constitute (or with notice or
lapse of time or both constitute) a default under, any contract or other
agreement to which the Company is a party or by or to which the Company or any
of the Company's assets or properties may be bound or subject, (iii) violate any
order, judgment, injunction, award or decree of any court, arbitrator or
governmental or regulatory body by which the Company, or the assets or
properties of the Company are bound, (iv) to the Company's knowledge, violate
any statute, law or regulation.
(h) Except as set forth in Schedule 4(h) hereto or the Reports,
there has been no material adverse change in the capitalization, assets,
liabilities or income of the Company since the issuance of the financial
statements, for the period ending December 31, 2002, which financial statements
have been delivered to Lender.
(i) The Company is not in possession of, nor has the Company or
its agents disclosed to Lender, any material non-public information (not
including the information relating to the negotiations for, and the transaction
contemplated by, this Financing Agreement and also not including the information
contained in Schedule 7(j), both of which could be considered "material" and
which have not yet been publicly announced) that (a) if disclosed, would
reasonably be expected to have a materially adverse effect on the price of the
Common Stock, or (b) according to applicable law, rule or regulation, should
have been disclosed publicly by the
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Company prior to the date hereof but which has not been so disclosed.
(j) To the Company's knowledge, none of the following has
occurred during the past ten (10) years with respect to the Company (or any
subsidiary or predecessor entity) or control person of the Company (a "Person")
except with respect to such control person (1) below shall not apply:
(1) A petition under the federal bankruptcy laws or any state
insolvency law was filed by or against, or a receiver, fiscal agent or similar
officer was appointed by a court for the business or property of such Person, or
any partnership in which he was a general partner at or within two years before
the time of such filing, or any corporation or business association of which he
was an executive officer at or within two years before the time of such filing;
(2) Such Person was convicted in a criminal proceeding or is a
named subject of a pending criminal proceeding (excluding traffic violations and
other minor offenses);
(3) Such Person was the subject of any order, judgment or
decree, not subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining him from, or
otherwise limiting, the following activities:
(i) Acting, as an investment advisor, underwriter,
broker or dealer in securities, or as an affiliated person, director or employee
of any investment company, bank, savings and loan association or insurance
company, as a futures commission merchant, introducing broker, commodity trading
advisor, commodity pool operator, floor broker, any other person regulated by
the Commodity Futures Trading Commission ("CFTC") or engaging in or continuing
any conduct or practice in connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any
violation of federal or state securities laws or federal commodities
laws;
(4) Such person was the subject of any order, judgment or
decree, not
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subsequently reversed, suspended or vacated, of any federal or state authority
barring, suspending or otherwise limiting for more than 60 days the right of
such person to engage in any activity described in paragraph (3) of this item,
or to be associated with persons engaged in any such activity;
(5) Such person was found by a court of competent jurisdiction
in a civil action or by the CFTC or SEC to have violated any federal or state
securities law, and the judgment in such civil action or finding by the CFTC or
SEC has not been subsequently reversed, suspended, or vacated.
(k) Except for Capstone Partners, L.C. and Crescent Fund LLP
the Company represents that it has had no dealings in connection with this
transaction with any finder or broker who will demand payment of any fee or
commission from the Lender. The Company agrees to indemnify the Lender against
and hold the Lender harmless from any and all liabilities to any persons
claiming brokerage commissions or finder's fees on account of services purported
to have been rendered in connection with this Financing Agreement or the
transactions contemplated hereby.
(l) The Company intends to use the proceeds from the Loan for
the purpose of providing operating capital, and the Company anticipates that it
will be able to repay all borrowings from its future cash flow or from further
investment. In addition, the Company believes that it will be able to, and
intends to, comply with all of its obligations and covenants as set forth in the
Related Agreements. Consequently, the Company does not believe, and does not
intend, that the pledge of shares pursuant to the Related Agreements, will be
called. Consequently, and without limiting the generality of the foregoing, the
Company warrants that the pledge of the shares is for security only and not in
contemplation of a sale of such shares by the Lender. The Company has not
arranged for the pledge of the shares as a part of any plan for the further
distribution of the pledged securities.
5. REPRESENTATIONS AND WARRANTIES OF THE LENDER. The Lender hereby
represents
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and warrants to the Company that:
(a) If the Lender is a corporation, the Lender has the
corporate power and authority to enter into this Financing Agreement and the
Related Agreements and to perform its obligations hereunder and thereunder. The
execution and delivery by the Lender of this Financing Agreement and the Related
Agreements and the consummation by the Lender of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part
of the Lender. This Financing Agreement and the Related Agreements have been
duly executed and delivered by the Lender and constitute valid and binding
obligations of the Lender, enforceable against it in accordance with their
respective terms, subject to the effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to the application of equitable principles in any
proceeding (legal or equitable).
(b) The execution, delivery and performance by the Lender of
this Financing Agreement and the Related Agreements and the consummation of the
transactions contemplated hereby and thereby do not and will not breach or
constitute a default under any applicable law or regulation or of any agreement,
judgment, order, decree or other instrument binding on the Lender.
(c) There is no pending, or to the knowledge of the Lender,
threatened, judicial, administrative or arbitral action, claim, suit, proceeding
or investigation which might affect the validity or enforceability of this
Financing Agreement or the Related Agreements.
(d) No consent or approval of, or exemption by, or filing with,
any party of governmental or public body or authority is required in connection
with the execution, delivery and performance under this Financing Agreement or
the Related Agreements or the taking of any action contemplated hereunder or
thereunder.
(e) The Lender qualifies as an accredited investor for purposes
of Regulation D promulgated under the Securities Act of 1933, as amended (the
"Act") and Rules 501(a) and 215 thereunder. The Lender acknowledges that it has
made an independent due diligence
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investigation of the Company and has reviewed each of the Reports and that the
Company has made available to the Lender at a reasonable time prior to the
execution of this Financing Agreement. The Lender has had the opportunity to ask
questions and receive answers concerning the business and affairs of the Company
and the terms and conditions of the sale of securities contemplated by this
Financing Agreement and to obtain any additional information (which the Company
possesses or can acquire without unreasonable effort or expense) as may be
necessary to verify the accuracy of information furnished to the Lender. The
Lender is sophisticated, understands the transactions described in this
Financing Agreement and the Related Documents, and has previous experience in
making loans to corporations in transactions similar to the Loan contemplated by
this Financing Agreement. The Lender has consulted with its legal, financial,
accounting, tax, and investment advisors with respect to the advisability of the
Lender making the Loan to the Company contemplated by this Financing Agreement,
to the extent the Lender has deemed that such consultation is necessary or
appropriate. The Lender (a) is able to bear the loss of the entire principal
amount of the Loan without any material adverse effect on his, her or its
business, operations or prospects, (b) has such knowledge and experience in
financial and business matters that he, she or it is capable of evaluating the
merits and risks of making the Loan to the Company pursuant to this Financing
Agreement, (c) realizes that the Company has a significant need for additional
financing and without such additional financing may be unable to repay the Notes
when due and may have to cease operations, (d) realizes that the advancement of
any funds by the Lender to the Company is highly speculative and subject to
significant risks including, without limitation, those risks identified in the
Reports, and (e) understands that the documents provided to Lender in connection
with the transactions contemplated hereby may contain forward-looking
information that involve risk and uncertainties that could cause actual results
to differ materially from such statements, including, but not limited to, those
risks relating to product demand, pricing, market acceptance, the effect of
economic conditions, the validity and enforceability of intellectual property
rights, the outcome of government regulatory proceedings,
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competitive products, risks in product and technology development, the ability
to complete transactions, and other risks identified in the Reports.
(f) The Lender understands that the Note, and the shares
issuable upon conversion of the Note, are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being or will
be acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the Securities Act of 1933 and applicable
state law only in certain limited circumstances. In this regard, the Lender
represents that it is familiar with Rule 144 under the Act, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
The Lender understands that it is accepting the Note and to the extent the
Lender receives any shares upon conversion or payment of the Note, the Lender
will accept such securities for investment purposes only and without the view
toward the further distribution of such securities except pursuant to a
registration statement that may be effective permitting the public offer or sale
of such securities, or pursuant to an exemption from registration under federal
and applicable state laws. In the event the Lender does attempt to offer or sell
the Note, or underlying securities in the circumstances contemplated by the
preceding sentence, the Lender will do so only in accordance with the
requirements of federal and applicable state laws and interpretations thereof.
(g) If the Registration Statement is not effective, the Lender
understands that the certificates evidencing the Shares will bear a legend
substantially in the following form:
"The securities represented by this certificate have not been registered
with the Securities and Exchange Commission or the securities commission
of any state in reliance upon an exemption from registration under the
Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, may not be offered or sold except pursuant to an effective
registration statement under the securities act or pursuant to an
available exemption from, or in a transaction not subject to, the
registration
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requirements of the securities act and in accordance with applicable
state securities laws."
(h) The Lender has no intention or right to obtain the shares
of the Company's common stock pledged by certain affiliates of the Company to
collateralize the repayment of the Note and the Company's performance of its
covenants in this Financing Agreement and the Related Documents except pursuant
to a foreclosure as permitted in the Related Documents following a material
default by the Company, not cured in accordance with the terms of the Related
Documents. The Lender has no intention to sell the pledged shares except after a
foreclosure accomplished pursuant to the preceding sentence. The Lender has not
sought the pledge of the shares pursuant to the Related Documents as a part of
any plan or scheme to distribute any securities in a manner not in compliance
with the requirements of federal and all applicable state laws.
(i) In all matters related to this Financing Agreement and the
Related Documents, the Lender is acting strictly on his, her, or its own behalf,
and is not acting as a group with any other person in connection with this
Financing Agreement, the Loan, the Related Documents, or any Loan made, pledge
accepted, or Related Documents executed and accepted by any other person.
(j) The Lender is a legal resident of the country set forth
beneath his, her, or its signature to this Financing Agreement, and there is no
basis that the Lender can claim residence in any country other than such
country.
(k) The Lender is not, and has never been, an "affiliate" of
the Company as the term "affiliate" is defined in Rule 405 of Regulation C
adopted under the Securities Act of 1933, as amended. If the Lender becomes an
affiliate of the Company at any time during the period the Note is outstanding,
the Lender will notify the Company in writing.
6. [RESERVED]
7. COVENANTS OF THE COMPANY The Company covenants and agrees that, so
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long as the Note shall be outstanding, except as otherwise required under the
Related Agreements, the Company shall:
(a) Promptly pay and discharge all lawful taxes, assessments
and governmental charges or levies imposed upon it or upon its income and
profits, or upon any of its property, before the same shall become in default as
well as all lawful material claims for labor, materials and supplies which, if
unpaid, might become a lien or charge upon such properties or any part thereof;
provided, however, that it shall not be required to pay and discharge any such
tax, assessment, charge, levy or claim so long as the validity thereof shall be
contested in good faith by appropriate proceedings, and the Company shall set
aside on its books adequate reserves with respect to any such tax, assessment,
charge, levy or claim so contested.
(b) Pay, or cause to be paid, all material financing
obligations and perform, or cause to be performed, all material obligations
promptly and in accordance with the respective terms thereof.
(c) Implement and maintain a standard system of accounting in
accordance with generally accepted accounting principles ("GAAP").
(d) Provide or otherwise make available to the Lender as soon
as available after the end of each fiscal year of the Company, its annual report
on Form 10-KSB or similar reports.
(e) Do, or cause to be done, all things that may be necessary
to (i) maintain its due organization, valid existence and good standing under
the laws of its state of incorporation; (ii) preserve and keep in full force and
effect all qualifications, registrations and licenses in those jurisdictions in
which the failure to do so could or would have a material adverse effect; (iii)
maintain its power or authority to carry on its business as now conducted; and
(iv) use its best efforts to keep available the services of its key present
employees and agents and maintain its current relations with suppliers,
customers,
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distributors and joint venture partners (subject to the business judgment of
executive management).
(f) At all times maintain, preserve, protect and keep material
property used and useful in the conduct of its business in a manner not
substantially different from the manner in which the Company maintained,
preserved, protected, and kept its material property prior to the date of this
Financing Agreement.
(g) Keep insurance on its property in a manner not
substantially different from the manner in which the Company maintained
insurance prior to the date of this Financing Agreement.
(h) Not assume, guaranty or otherwise, directly or indirectly,
become liable or responsible for the obligations of the any other person or
entity, except for 75% or greater owned subsidiaries, for the purpose of paying
or discharging the obligations of such person or entity unless such guarantees
relate to the business of the Company, are incurred in the ordinary course of
its business and do not exceed in the aggregate $100,000.
(i) Not declare or pay any cash dividends or authorize or make
any other distribution on any class of equity securities of the Company.
(j) Except as set forth in Schedule 7(j) hereto, not
consolidate with or merge with or into any entity or sell, lease, transfer,
exchange or otherwise dispose of any material part of its properties and assets
except in the ordinary course of business, however, the Company may engage in
any of the foregoing transactions with a parent or subsidiary of the Company so
long as such parent or subsidiary assumes the obligations of the Company
hereunder.
(k) Not enter into any agreement or understanding which may,
directly or indirectly, cause or effect a change in "control" as defined in Rule
405 under the Securities Act of 1933, without the prior written consent of the
Lender
(8) [RESERVED]
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(9) INDEMNIFICATION. (a) If (i) the Lender becomes involved in any
capacity in any action, proceeding or investigation brought by any stockholder
of the Company, in connection with or as a result of the consummation of the
transactions contemplated by the Related Agreements, or if the Lender is
impleaded in any such action, proceeding or investigation by any person, or (ii)
the Lender becomes involved in any capacity in any action, proceeding or
investigation brought by the Securities and Exchange Commission, any
self-regulatory organization or other body having jurisdiction in connection
with or as a result of the consummation of the transactions contemplated by the
Related Agreements, or (iii) if the Lender is impleaded in any such action,
proceeding or investigation by any person, then in any such case of Sections
9(a)(i)(ii) or (iii), the Company hereby agrees to indemnify, defend and hold
harmless the Lender, its shareholders, officers, directors, employees,
representatives, attorneys, and assigns from and against and in respect of all
losses, claims, liabilities, damages or expenses resulting from, imposed upon or
incurred by the Lender, directly or indirectly, and reimburse such Lender for
its reasonable legal and other expenses (including the cost of any investigation
and preparation) incurred in connection therewith, as such expenses are
incurred. The foregoing indemnification does not include any obligation to
reimburse the Lender for internal and overhead costs for the time of any
officers or employees of the Lender devoted to appearing and preparing to appear
as witnesses, assisting in preparation for hearings, trials or pretrial matters,
or otherwise with respect to inquiries, hearing, trials, and other proceedings
relating to the subject matter of the Note and Related Agreements. The
indemnification and reimbursement obligations of the Company under this
paragraph shall be in addition to any liability which the Company may otherwise
have (other than matters specifically addressed in the Registration Rights
Agreement, which shall be governed solely by that agreement), shall extend upon
the same terms and conditions to any affiliates of the Lender who are actually
named in such action, proceeding or investigation, and partners, directors,
agents, employees and controlling persons (if any), as the case may be, of the
Lender and any such affiliate, and shall be binding upon and inure to the
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benefit of any successors, assigns, heirs and personal representatives of the
Company, the Lender, any such affiliate and any such person. The Company also
agrees that neither the Lender nor any such affiliate, partner, director, agent,
employee or controlling person shall have any liability to the Company or any
person asserting claims on behalf of or in right of the Company in connection
with or as a result of the consummation of the transactions hereunder, except as
provided in or contemplated by the Note or Related Agreements unless such action
by the Lender or any affiliate, partner, director, agent, employee, or
controlling person results from the fraud, negligence, criminal act or omission,
or other action or omission by such person that violates any applicable law or
regulation
(b) Notwithstanding Section 9(a) above, the Company shall have
no obligation under this Section 9 if any such action, proceeding, or
investigation arises out of or relates to any fraudulent, negligent, or criminal
act or omission of the Lender or any affiliate, partner, director, agent,
employee, or controlling person of the Lender in connection with the
transactions contemplated by this Financing Agreement or otherwise, or other
action or omission by such person that violates any applicable law or
regulation.
(c) If (i) the Company becomes involved in any capacity in any
action, proceeding or investigation brought by any stockholder of the Lender, in
connection with or as a result of the consummation of the transactions
contemplated by the Related Agreements, or if the Lender is impleaded in any
such action, proceeding or investigation by any person, or (ii) the Company
becomes involved in any capacity in any action, proceeding or investigation
brought by the Securities and Exchange Commission, any self-regulatory
organization or other body having jurisdiction in connection with or as a result
of the consummation of the transactions contemplated by the Related Agreements
(which is an action, proceeding or investigation brought primarily against the
Lender and is not an action, proceeding or investigation brought primarily
against the Company or its officers, directors, any shareholder or employees),
or (iii) if the Company is impleaded in any such action, proceeding or
investigation by any person, then in any
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such case of Sections 9(c)(i)(ii) or (iii), the Lender hereby agrees to
indemnify, defend and hold harmless the Company from and against and in respect
of all losses, claims, liabilities, damages or expenses resulting from, imposed
upon or incurred by the Company, directly or indirectly, and reimburse such
Company for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred. The foregoing indemnification does not include any
obligation to reimburse the Company for internal and overhead costs for the time
of any officers or employees of the Company devoted to appearing and preparing
to appear as witnesses, assisting in preparation for hearings, trials or
pretrial matters, or otherwise with respect to inquiries, hearing, trials, and
other proceedings relating to the subject matter of the Note and Related
Agreements. The indemnification and reimbursement obligations of the Lender
under this paragraph shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Company and the
Lender. The Company also agrees that neither the Lender nor any such affiliate,
partner, director, agent, employee or controlling person shall have any
liability to the Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of the consummation of the
transactions hereunder, except as provided in or contemplated by the Note or
Related Agreements unless such action by the Lender or any affiliate, partner,
director, agent, employee, or controlling person results from the fraud,
negligence, criminal act or omission, or other action or omission by such person
that violates any applicable law or regulation.
(d) Notwithstanding Section 9(c) above, the Lender shall have
no obligation under this Section 9 if any such action, proceeding, or
investigation arises out of or relates to any fraudulent, negligent, or criminal
act or omission of the Company or any affiliate, partner, director, officer,
shareholder, agent, employee, or controlling person of the Company in connection
with the transactions contemplated by this Financing Agreement or otherwise, or
other action or omission by such person that violates any applicable law or
regulation.
10. ASSIGNMENT. This Financing Agreement and the Related Agreements may
be
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assigned by the Lender to transferees or assignees of the Note and provided
further that the Company is, prior to or simultaneously with such transfer,
furnished with written notice of the name and address of such transferee or
assignee, and such assignee agrees in writing to be bound by the terms hereof
and provided further that, if the Note is only assigned or transferred in part,
then such assignment shall only be made in part on an appropriate proportionate
basis. If there is a conflict between this provision and any provision of the
Related Agreements, this provision shall govern.
11. [RESERVED]
12. NOTICES Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery or seven business days after deposit in the United
States Postal Service, by (a) advance copy by fax, and (b) mailing by express
courier or registered or certified mail with postage and fees prepaid, addressed
to each of the other parties thereunto entitled at the following addresses, or
at such other addresses as a party may designate by ten days advance written
notice to each of the other parties hereto.
COMPANY: INVISA, INC., Att'n: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
with a copy to:
Xxxxxxx Xxxxx, Esq.
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
LENDER: to the address, telephone number, and facsimile number
set forth beneath his, her or its signature, below.
13. SEVERABILITY. If a court of competent jurisdiction determines that
any provision of this Financing Agreement is invalid, unenforceable or illegal
for any reason, such
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determination shall not affect or impair the validity, legality and
enforceability of the other provisions of this Financing Agreement. If any such
invalidity, unenforceability or illegality of a provision of this Financing
Agreement becomes known or apparent to any of the parties hereto, the parties
shall negotiate promptly and in good faith in an attempt to make appropriate
changes and adjustments to such provision specifically and this Financing
Agreement generally to achieve as closely as possible, consistent with
applicable law, the intent and spirit of such provision specifically and this
Financing Agreement generally.
14. EXECUTION IN COUNTERPARTS. This Financing Agreement may be signed
in any number of counterparts with the same effect as if the signatures upon any
counterpart were upon the same instrument. All signed counterparts shall be
deemed to be one original. This Financing Agreement, once executed by a party,
may be delivered to the other parties hereto by telephone line facsimile
transmission of a copy of this Financing Agreement bearing the signature of the
parties so delivering this Financing Agreement. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto.
15. EXPENSES. Each party shall bear its own expenses in connection with
the preparation of this Financing Agreement and the Related Agreements. The
Company will pay $30,000 to the law firm of Xxxxxx Xxxxxxxx Xxxxxxx LLP on
behalf of the Lender and others, to be allocated as the Lender may deem
appropriate with regard to the expenses of preparing and reviewing this
Financing Agreement, the Related Agreements and other documentation between the
Company, the Lender and others including a certain Investment Agreement between
the Lender and the Company. Other than as set forth in this Section 15, the
Company shall have no responsibility for fees and expenses of the Lender. The
payment of fees and expenses pursuant to this Section 15 may be made at the
Closing by the Lender from the Loan proceeds payable by the Lender to the
Company which may be deducted by the Lender.
16. GOVERNING LAW. This Financing Agreement and the Related Agreements
shall be governed by and construed in accordance with the laws of the State of
New York. Each of the
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parties consents to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the state courts of the State of
New York sitting in the City of New York in connection with any dispute arising
under this Financing Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
coveniens, to the bringing of any such proceeding in such jurisdictions.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The Lender has the right to rely fully upon the
representations, warranties, covenants and agreements of the Company contained
in this Agreement or in any documents delivered pursuant to this Agreement. All
such representations and warranties of the Company shall survive the execution
and delivery of this Agreement, the Lender's advancement of the Loan, and the
Company's delivery of the Note to the Lender hereunder. All such representations
and warranties of the Company shall continue in full force and effect for three
years from the date hereof with respect to claims which may arise hereunder or
under the Related Documents.
(b) The Company has the right to rely fully upon the
representations, warranties, covenants and agreements of the Lender contained in
this Agreement or in any documents delivered pursuant to this Agreement. All
such representations and warranties of the Lender shall survive the execution
and delivery of this Agreement, the Lender's advancement of the Loan, and the
Company's delivery of the Note to the Lender hereunder. All such representations
and warranties of the Lender shall continue in full force and effect for three
years from the date hereof with respect to claims which may arise hereunder or
under the Related Documents.
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IN WITNESS WHEREOF, the parties have executed this Financing Agreement
as of the date first written above.
INVISA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, President
----------------------------------
INVESTOR
BARBELL GROUP, INC.
By:
----------------------------------
Name:
Title:
Address:
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SCHEDULES
Schedule 4(c) There are no exceptions except as set forth in the Reports.
Schedule 4(d) There is no litigation or proceedings as described in Section 4(d)
except as set forth in the Reports and a vendor, Singletec, has asserted a
litigation threat against Invisa for an account payable allegedly in the
approximate amount of $91,000. The amount due is disputed; however, a
settlement/payment schedule has been tentatively negotiated
Schedule 4(h) There are no exceptions except as set forth in the Reports.
Schedule 7(j) There are no contemplated consolidations (etc.) except as set
forth in the Reports.
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EXHIBIT A
FORM OF NOTE
21
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
22
EXHIBIT C
FORM OF STOCK PLEDGE AGREEMENT
23
EXHIBIT D
FORM OF OPINIONS OF COUNSEL
24
