EXHIBIT 10.8
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of June 4, 2002, is made by and between
LocatePLUS Holdings Corporation, a Delaware corporation which has a place of
business at 100 Cummings Center, Beverly, Massachusetts 01915 (the "Borrower"),
Mr. Jon Latorella, a Massachusetts resident ("Mr. Latorella"), and Gemstone
Investment Company, Inc., with a principal place of business at 320 Main Street,
Worcester, Massachusetts 01608 (the "Lender"). The Borrower, Mr. Latorella, and
the Lender are referred to collectively as the "parties".
W I T N E S S E T H T H A T :
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND FOR
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
ACKNOWLEDGED BY EACH OF THE PARTIES, THE PARTIES HAVE AGREED AS FOLLOWS:
SECTION 1. FINANCING ARRANGEMENT.
1.1 LOAN TRANSACTION. In consideration for a wire transfer of
US$750,000.00 to be made upon the execution of this Agreement by all parties
(the "Loan"), Borrower agrees to execute a US$750,000 promissory note
substantially in the form attached hereto as EXHIBIT A (the "Note").
1.2 USE OF PROCEEDS. The proceeds to the Loan shall be used to
acquire data and for general working capital. Mr. Latorella represents and
warrants that he holds the majority of the issued voting securities of the
Borrower.
1.3 SECURITY. Prompt repayment of the Loan shall be secured pursuant
to (I) the terms of a Security Agreement, substantially in the form attached
hereto as EXHIBIT B (the "Security Agreement"), and (II) a pledge by Mr.
Latorella of 5,000,000 shares of Class A Voting Common Stock of the Borrower
pursuant to a pledge agreement substantially in the form attached hereto as
EXHIBIT C (the "Pledge Agreement"), and (III) a mortgage on real property owned
by Mr. Latorella, substantially in the form attached hereto as EXHIBIT D (the
"Mortgage"). Each of the Security Agreement, the Pledge Agreement and the
Mortgage shall be executed prior to the advancement of the Loan. The property
subject to the Security Agreement, Pledge Agreement and Mortgage is referred to
in this Agreement as the "Collateral".
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1 INFORMATION TO BE FURNISHED. The Borrower covenants and agrees
that, so long as any obligation under or with respect to this Agreement, the
Note or the Loan is outstanding, the Borrower shall permit the Lender's
representatives to visit and inspect any of its properties, to examine and make
extracts from its financial records, and to discuss its affairs, finances and
accounts, all at such reasonable times and as often as the Lender may reasonably
request.
2.2 NOTICE OF DEFAULT. The Borrower and Mr. Latorella each covenant
and agree to notify the Lender promptly if any event occurs or condition exists
which constitutes, or which after notice or lapse of time, or both, would
constitute an "Event of Default", as defined in Section 3, below.
SECTION 3. EVENTS OF DEFAULT.
3.1 REMEDIES. Upon the occurrence of any one of the following (each,
an "Event of Default"):
(A) any default by the Borrower in the payment when due and
payable of any principal of or interest on the Note or any part
thereof;
(B) any default in the performance or observance by the
Borrower of any terms, conditions or agreements contained herein and
continuance thereof unremedied for thirty days after notice of such
default has been received by the Borrower from any source (or if such
default can not be remedied within thirty days, if action
satisfactory to the Lender is not taken with respect thereto within
thirty days);
(C) the institution of bankruptcy, reorganization,
arrangement, liquidation, receivership, moratorium or similar
proceedings by or against the Borrower or Mr. Latorella, and if
instituted against the Borrower or Mr. Latorella, as applicable, its
or his consent thereto or the pendency thereof for sixty days;
(D) any statement or other information furnished by the
Borrower to Lender under or in connection with this Agreement shall
prove to be false or misleading in any material respect as of the
time made or furnished; or
(E) loss, theft, damage or destruction of any substantial
portion of any collateral for the obligations of the Borrower or Mr.
Latorella or the making of any levy, seizure, or attachment of the
Collateral by any third party,
THEN, or at any time thereafter while such Event of Default is continuing,
Lender may, at Lender's option, proceed to do any one or more of the following:
(I) to declare the Note and all other indebtedness of the
Borrower to the Lender to be forthwith due and payable, whereupon the
same shall become forthwith due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby
expressly waived;
(II) exercise any of the rights and remedies granted or
available to it, whether provided under this Agreement, under the
Note or otherwise, including any rights Lender may have as a secured
party; and
(III) proceed to protect and enforce Lender's rights by an
action at law, suit in equity or other appropriate proceeding,
whether for specific performance of or for an injunction against a
violation of any covenant contained herein or in the Note.
3.2 REMEDIES OF DEFAULTS. If Borrower or Mr. Latorella, as
applicable, shall remedy all Events of Default prior to the Lender's full
recovery of all indebtedness due to under the Note then, to the extent that the
Borrower' obligations hereunder shall not then have been fully discharged and
satisfied, the Lender, at its sole discretion, may rescind any acceleration of
the maturity of any indebtedness then due to the Lender hereunder or any other
action which it may have taken, and the Borrower shall in such event be deemed
reinstated with respect to such remaining obligations as if no Event of Default
had occurred.
3.3 PAYMENT OF COSTS OF COLLECTION. In the case of a default in the
payment of any principal of or interest on the Note, the Borrower will pay to
Lender such further amount as shall
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be sufficient to cover the cost of expenses of collection, including but not
limited to reasonable attorneys' fees and cost.
3.4 REMEDIES CUMULATIVE. No right, power or remedy conferred upon the
Lender hereby or by the Note shall be exclusive of any other right, power or
remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise.
SECTION 4. GENERAL.
4.1 NO WAIVER BY IMPLICATION. No failure or delay on the part of the
Lender in exercising any right hereunder shall operate as a waiver thereof or of
any other right, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or of any other right or remedy.
4.2 WHEN WAIVER EFFECTIVE. No modification or waiver of any provision
of this Agreement or of the Note and no consent to departure by the Borrower or
Mr. Latorella therefrom shall in any event be effective unless the same shall be
in writing, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on
the Borrower or Mr. Latorella in any case shall entitle the Borrower or Mr.
Latorella to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any right of the Lender to take action
without notice or demand.
4.3 NOTICE. All notices and other communications to any party
pursuant to this Agreement shall be in writing and shall be deemed to have been
given when delivered in hand or three business days after being properly
deposited in the mails, first class postage prepaid, addressed to such party at
its address given at the beginning of this Agreement or at any such other
address as may be specified in writing by the party to whom such notice is
given, or one business day after dispatch of a telegram, telex or telefax,
addressed to such party as provided above or at such other address of the
recipient as is appropriate for the means of communication involved.
4.4 WAIVERS AND ASSENTS. The Borrower and Mr. Latorella waive notice
of acceptance of this Agreement, notice of loans made, credit extended, and all
other actions taken in reliance hereon. With respect to both obligations and
collateral, the Borrower and Mr. Latorella assent to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral, to the addition or release of
any party or person primarily or secondarily liable, to the acceptance of
partial payments thereon and the settlement, compromising or adjusting of any
thereof, all in such manner and at such time or times as the Lender may deem
advisable. No waiver shall be valid unless in writing and signed by the parties
and then only to the extent set forth in such writing. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE BORROWER AND MR. LATORELLA WAIVES ITS AND HIS
RIGHTS TO TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT AND ALL RIGHTS TO REQUIRE
THE LENDER TO ELECT AMONG ANY OF LENDER'S REMEDIES WITH RESPECT TO THIS
AGREEMENT OR ANY COLLATERAL.
4.5 SEALED INSTRUMENT; SUCCESSORS AND ASSIGNS. This Agreement,
intended to take effect as a sealed instrument, shall be binding upon and inure
to the benefit of the Lender and the Borrower and his respective successors and
assigns, except that the Borrower and Mr. Latorella may not assign or transfer
its and his rights hereunder.
4.6 GOVERNING LAW. This Agreement and the Note shall be deemed to be
contracts under the laws of the Commonwealth of Massachusetts. The Borrower and
Mr. Latorella each
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hereby submit to the jurisdiction of the courts of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts, as well as to the jurisdiction of all courts to which an appeal
may be taken or other review sought from the aforesaid courts, for the purpose
of any suit, action or other proceeding arising out of any of the Borrower's or
Mr. Latorella's obligations under or with respect to this Agreement, expressly
waive any and all objections it or he may have as to venue in any of such
courts, and agree that service of process may be made by mailing a copy of the
summons to the Borrower and Mr. Latorella at its or his address set forth above.
4.7 PROVISIONS SEVERABLE. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective, valid and
enforceable under applicable law. The provisions of this Agreement are
severable, however, and if any of these provisions shall be held by any court of
competent jurisdiction to be unenforceable, such holding shall not affect or
impair any other provision hereof, or, to the extent not invalidated, the effect
of said unenforceable provisions in other jurisdictions.
4.8 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies set forth
herein are cumulative and not exclusive of any other right which this or any
subsequent holder or holders of the Note would otherwise have.
4.9 CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions of this Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which when so executed and delivered shall be deemed an
original but all of which together shall constitute but one Agreement, and it
shall not be necessary to produce or account for more than one such counterpart.
[SIGNATURE PAGE FOLLOWS]
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LOAN AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first written above.
BORROWER:
LOCATEPLUS HOLDINGS CORPORATION
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By: Jon R. Latorella, President
LATORELLA:
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Jon R. Latorella, individually
LENDER:
GEMSTONE INVESTMENT COMPANY, INC.
By: _________________________
Its: _________________________
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