FOREBEARANCE AND MODIFICATION AGREEMENT
Exhibit
10.54
FOREBEARANCE
AND MODIFICATION AGREEMENT
This
Forbearance and Modification Agreement (this "Agreement") by and between Invisa,
Inc., a Nevada corporation, having a business at 0000 00xx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx, 00000 (the “Borrower”), and Centurian Investors,
Inc., a Delaware corporation, having an address at 000 Xxxxxxxx Xxxxxx, Xxxxx
0X, Xxxxxxxx, Xxxxxxx 00000 (the “Lender”) is entered into as of this 9th day of
November, 2007 and shall be effective as of the date hereof (the “Effective
Date”).
RECITALS:
WHEREAS,
Lender and Borrower are
parties to a certain Promissory Note, dated February 28, 2007, in the principal
amount of up to One Hundred Fifty Thousand ($150,000.00) (the “First Note”),
that certain Promissory Note, dated July 25, 2007 in the principal amount of
Fifty Thousand ($50,000) dollars (the “Second Note”), and that certain
Promissory Note, dated November 9th, 2007 in the principal amount of Fifty
Thousand ($50,000) dollars (the “Third Note; the First Note, Second Note and
Third Note being hereinafter collectively referred to as the “Notes”);
and
WHEREAS,
the Notes are secured by (a)
an aggregate of Thirty Three Million Three Hundred Thirty Three Thousand Three
Hundred Thirty Two (33,333,332) shares of common stock of Borrower and (b)
a
first priority lien on all of the assets of Borrower as more specifically
described in the Notes and that certain General Security Agreement, dated
February 28, 2007 (the “Security Agreement” the Notes and the Security
Agreement, together with all documents executed in connection therewith being
hereinafter referred to collectively as the “Loan Documents”); and
WHEREAS,
Borrower hereby requests
Lender’s forbearance with respect to certain provisions of the Notes;
and
WHEREAS,
Borrower and Lender desire
to modify certain of the provisions of the Notes as more specifically set forth
herein.
NOW
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Terms
used herein which are defined in the Loan Documents shall have the same meanings
when used herein unless otherwise provided herein.
2. Without
in any way waiving any existing Event of Default and at the request of the
Borrower, Lender hereby agrees forbear from exercising any remedy available
to
Lender upon the occurrence of an Event of Default under paragraph 13(a)(i)
of
each of the First Note and Second Note from the Effective Date hereof and until
the earlier of December 31, 2007 or an Acceleration under any provision other
than paragraph 13(a)(i) under such Notes (the “Forbearance
Period”).
3. The
interest rate payable during the Forbearance Period shall be the Interest
Rate.
1
4. Borrower
understands and agrees that the remaining provisions of the Notes shall remain
in full force and effect without any changes or modification except as expressly
stated herein; including, without limitation, the cure periods set forth in
paragraph 13(b) of the Notes. Borrower further agrees that in
the event that all principal and interest payments due and owing to Lender
under
the Notes are not paid in full on or before the Maturity Date, then, for
purposes of paragraph 13(b) of the Notes, an Acceleration event shall be deemed
to have occurred on the Maturity Date. Borrower hereby waives any
requirement by Lender to deliver to Borrower a Default Notice under paragraph
13(b) of the Notes and agrees that the Maturity Date shall be deemed the date
of
the Default Notice for purposes of calculating the cure and other time periods
set forth in paragraph 13(b) of the Notes.
5. The
provisions set forth herein are limited precisely as written and shall not
be
deemed to (a) be a consent to, or waiver or modification of, any other term
or
condition of the Loan Documents, or (b) except as expressly set forth herein,
prejudice any right or rights which the Lender may now have or may have in
the
future under or in connection with the Loan Documents or any of the other
documents referred to therein. Except as expressly modified hereby or by express
written amendments thereof, the terms and provisions of the Loan Documents
or
any other documents or instruments executed in connection with any of the
foregoing are and shall remain in full force and effect. In the event of a
conflict between this Agreement and any of the foregoing documents, the terms
of
this Agreement shall be controlling. The representations and warranties made
in
each Loan Document are true and correct in all material respects on and as
of
the date of this Agreement.
6. To
induce the Lender to execute and deliver this Agreement (which representations
shall survive the execution and delivery of this Agreement), Borrower represents
and warrants to the Lender that:
(a)
this
Agreement has been duly authorized, executed and delivered by it and constitutes
the legal, valid and binding obligation, contract and agreement of the Borrower
enforceable against it in accordance with its terms, except as enforcement
may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws
or equitable principles relating to or limiting creditors' rights generally;
and
(b)
the
execution, delivery and performance by the Borrower of this Agreement (i) has
been duly authorized by all requisite corporate action, (ii) does not require
the consent or approval of any governmental or regulatory body, agency, or
other
party and (iii) will not (A) violate (1) any provision of law, statute, rule
or
regulation or its certificate of incorporation or bylaws, (2) any order of
any
court or any rule, regulation or order of any other agency or government binding
upon it, or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets are
or
may be bound.
7. As
a condition to and as consideration for the agreements of Lender set forth
herein, Borrower shall:
(a)
pay
to Lender all accrue all but unpaid interest on the
Notes.;
(b)
prepay any and all remaining interest on the Notes from the date
hereof through December 31, 2007.
2
(c)
pay
to Lender a forbearance fee in the amount Two Thousand ($2,000.00) dollars
which
is equal to 1% of the aggregate principal amount of the Notes.
(d)
Borrower shall pay all costs and expenses of Lender in connection with this
Agreement, including, without limitation, reasonable attorneys fees of
Lender.
.
8. None
of the provisions of this Agreement shall inure to the benefit of Borrower
or
any person other than Lender. Consequently, Borrower shall not be, and no person
other than the Lender shall be, entitled to rely upon or raise a claim or
defense, in any manner whatsoever, the failure of Lender to comply with the
provisions of this Agreement. Lender shall
not
incur
any liability to Borrower or any other person for any act or
omission whatsoever.
9. This
Agreement and the rights and obligations of the parties hereunder and under
the
Forbearance Agreement shall be construed in accordance with and be governed
by
the laws of the State of Florida.
10. This
Agreement and the documents referred to herein represent the entire
understanding of the parties hereto regarding the subject matter hereof and
supersede all prior and contemporaneous oral and written agreements of the
parties hereto with respect to the subject matter hereof.
11. This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts and all of such counterparts shall together constitute
one and the same instrument. Complete sets of counterparts shall be lodged
with
the Borrower and the Lender.
IN
WITNESS WHEREOF, this Agreement is
executed as of the date first written above and shall be effective as of the
Effective Date.
| INVISA, INC. | CENTURIAN INVESTORS, INC. | |||
|
/s/
Xxxxxx X. Xxxx
|
|
|||
|
Name:
Xxxxxx X. Xxxx
|
Name:
|
|||
|
Title:
Chief Financial Officer
|
Title:
|
3
