RBC Bank EIGHTH MODIFICATION AGREEMENT (KBI)
Exhibit
10.24
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Customer
No.
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Loan
No.
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RBC
Bank
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EIGHTH
MODIFICATION AGREEMENT
(KBI)
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This EIGHTH MODIFICATION AGREEMENT
(“Agreement”) is made,
entered and effective as of the 5th day of November, 2008 by and between ETRIALS, INC., a Delaware
corporation, formerly known as etrials Worldwide, Inc., and ETRIALS WORLDWIDE, INC., a
Delaware corporation, formerly known as CEA Acquisition Corporation (whether one
or more, “Borrower”),
and ETRIALS WORLDWIDE
LIMITED, a corporation organized under the laws of the United Kingdom
(“Guarantor”), and RBC BANK (USA) (f/k/a RBC
Centura Bank), a North Carolina banking corporation (“Bank”).
RECITALS
A. Borrower
made and delivered an Amended and Restated Commercial Promissory Note dated May
31, 2006 in the original principal amount of up to Two Million Dollars
($2,000,000.00) (as such Note has or may have been amended, modified, replaced
or restated, the “Revolving
Note”), a Commercial Promissory Note dated February 1, 2005 in the
original principal amount of up to Three Hundred Thousand Dollars ($300,000.00)
(as such Note has or may have been amended, modified, replaced or restated, the
“Equipment
Note”), a Commercial Promissory Note dated May 31, 2006 in the
original principal amount of Five Hundred Thousand Dollars ($500,000.00) (as
such Note has or may have been amended, modified, replaced or restated, the
“Second Equipment
Note”), a Commercial Promissory Note dated May 31, 2007 in the
original principal amount of Five Hundred Thousand Dollars ($500,000.00) (as
such Note has or may have been amended, modified, replaced or restated, the
“Third Equipment Note”),
and a Commercial Promissory Note dated May 31, 2008 in the original principal
amount of Five Hundred Thousand Dollars ($500,000.00) (as such Note has or may
have been amended, modified, replaced or restated, the “Fourth Equipment Note”, and
together with the Revolving Note, the Equipment Note, the Second Equipment Note
and the Third Equipment Note, collectively, the “Notes”), each in favor of
Bank, its successors or assigns. Borrower’s payment and performance
under the Notes is guaranteed by Guarantor pursuant to the terms of that certain
Unconditional Guaranty Agreement dated February 1, 2005 (as such Unconditional
Guaranty Agreement has or may have been amended, modified, replaced or restated,
the “Guaranty”) and the
Notes are secured by, among other things, a Loan and Security Agreement dated
February 1, 2005 by and between Borrower and Bank (as such Loan and Security
Agreement has or may have been amended, modified, replaced or restated, the
“Loan Agreement”), and
by such other financing statements, agreements, documents, pledges and/or
instruments between Borrower, Guarantor and Bank, or from Borrower and/or
Guarantor to Bank and relating to the payment and performance of the Notes
(collectively, including the Notes, Guaranty, Loan Agreement, First Modification
Agreement, Second Modification Agreement, Third Modification Agreement, Fourth
Modification Agreement, Fifth Modification Agreement, Sixth Modification
Agreement, Seventh Modification Agreement and Assignment and Assumption
Agreement, as the same may be amended, modified, replaced or restated from time
to time, the “Loan
Documents”). The loans made pursuant to the Loan Documents are
collectively referred to herein as the “Loan”.
B. The
Loan was modified pursuant to a Modification Agreement dated as of June 6, 2005
by and between Borrower, Guarantor and Bank (the “First Modification
Agreement”), a Second Modification Agreement dated as of January 13, 2006
by and between Borrower, Guarantor and Bank (the “Second Modification
Agreement”), a Third Modification Agreement dated as of March 17, 2006 by
and between Borrower, Guarantor and Bank (the “Third Modification
Agreement”), a Fourth Modification Agreement dated as of April 21, 2006
by and between Borrower, Guarantor and Bank (the “Fourth Modification
Agreement”), a Fifth Modification Agreement dated as of May 31, 2006 by
and between Borrower, Guarantor and Bank (the “Fifth Modification
Agreement”), a Sixth Modification Agreement dated as of May 31, 2007 by
and between Borrower, Guarantor and Bank (the “Sixth Modification
Agreement”), an Assignment and Assumption Agreement dated May 31, 2007 by
and between Borrower, Guarantor (the “Assignment and Assumption
Agreement”) and a Seventh Modification Agreement dated as of May 31, 2008
by and between Borrower, Guarantor and Bank (the “Seventh Modification
Agreement”).
C. Borrower
has requested that Bank agree to further modify the Loan as set forth herein,
and Bank has agreed to do so at the present time provided (i) Bank is not
required to, nor will by virtue of such modification be deemed to, waive any
known or unknown default under the Loan, and (ii) Borrower timely complies with
the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
promises set forth in this Agreement and other good and valuable consideration,
the receipt and independent sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Incorporation of Recitals
and Exhibits. The foregoing Recitals are hereby incorporated
in this Agreement.
2. Modification. The
Loan Documents shall be, and the same are, modified as follows:
(a) Modification to Financial
Covenants. Section 6.8(b) of the Loan Agreement is
hereby deleted in its entirety and a new Section 6.8(b) is inserted in lieu
thereof, reading as follows:
Tangible Net Worth.
Borrower shall maintain a Tangible Net Worth of at least $10,000,000.00 as of
September 30, 2008 and as of the last day of each calendar quarter
thereafter.
(b) Modified
Definitions. The definition of “Tangible Net Worth” as
contained in Exhibit
A of the Loan Agreement is hereby deleted in its entirety and a new
definition is inserted in lieu thereof, reading as follows:
“Tangible Net Worth”
means assets (as defined by GAAP) less intangibles (as defined by GAAP) minus liabilities (as
defined by GAAP) plus Subordinated
Debt.
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3. Non-Waiver of Events of
Default; Continued Priority. Borrower and Guarantor do hereby
reaffirm their obligations under the Loan Documents. Neither this
Agreement, nor Bank’s execution of this or any other documents or instruments,
nor Bank’s prior or subsequent conduct, communications or agreements relating in
any way to the Loan, the payment and performance of the Loan or the parties’
conduct, shall be deemed to be a waiver of or consent to any now or hereafter
existing defaults under any of the Loan Documents. Notwithstanding
any contrary provision contained in this Agreement, in any other writing or
agreement from or between any of the parties hereto, or demonstrated by any
prior action or inaction of any of the parties hereto, Borrower and Guarantor
hereby consent to and agree that Bank’s agreement herein set forth shall be
specifically construed, and shall not be, nor be deemed to be, a waiver, release
or approval of any default or condition that with the passage of time, giving of
notice, or both, would become a default under the Loan Documents, nor consent to
any facts or circumstances known or unknown to Bank, nor establish a course of
conduct or dealing between the parties. Nothing set forth herein
shall affect the priority or extent of the lien of any of the Loan Documents,
nor, except as expressly set forth herein, release or change the liability of
any party who may now be or after the date of this Agreement become liable,
primarily or secondarily, under the Loan Documents. Borrower and
Guarantor hereby expressly waive, to the full extent it may lawfully do so, any
rights which it may now or at any time hereafter have by virtue of North
Carolina General Statutes Sections 26-7, et. seq. and 45-45-1, et. seq. It is
expressly understood and agreed that: (i) except as expressly modified hereby,
the Notes and other Loan Documents shall remain in full force and this Agreement
shall have no effect on the priority or validity of any liens set forth in the
Loan Documents nor impair any security now held for the indebtedness evidenced
by the Notes, nor waive, annul, vary or affect any provision, condition,
covenant or agreement contained in any of the Loan Documents, except as may be
specifically modified herein, nor affect or impair any of Bank’s rights, powers
or remedies under the Loan Documents; and (ii) except as stated herein, the Bank
expressly reserves all rights as to recourse on the Notes. Bank’s
consent to the matters herein contained is not intended to be and shall not be
construed as a consent to any subsequent modifications or amendments to the Loan
Documents.
4. Conditions Precedent to
Modification. Bank’s agreement to make the foregoing modifications and
amendments is subject in all respects to the occurrence and/or satisfaction of
each of the following conditions:
(a) Payment of Cost, Fees,
etc. Borrower’s payment of: (i) all accrued but unpaid
interest at and as of the date of this Agreement; and (ii) all costs and
expenses incurred or suffered by Bank in connection with this Agreement,
including, without limitation, reasonable attorneys’ fees.
5. Representations and
Warranties. Borrower and Guarantor represent and warrant to
Bank as of the date of this Agreement, that: (a) it has no claim or
counterclaim against Bank under, right of setoff against or defense to the
enforcement of any of the Notes or the other Loan Documents. (b)
Borrower and Guarantor have the power, authority and the legal right to make,
deliver and perform this Agreement and the Loan Documents, and have taken any
and all action to authorize this Agreement, to authorize the performance of the
Loan Documents and to pledge or mortgage their property as contemplated by this
Agreement and the Loan Documents. This Agreement has been duly executed and
delivered by Borrower and Guarantor and constitutes the legal, valid and binding
obligation of Borrower and Guarantor, enforceable in accordance with its terms
and not subject to rescission, invalidation, nullification or other
avoidance. (c) There is not now pending against Borrower or Guarantor
any petition for relief, whether voluntary or otherwise, any assignment for the
benefit of creditors, any petition seeking reorganization or arrangements under
the federal bankruptcy laws of the United States or the laws of any state
thereof, nor has any other action been brought against any of Borrower or
Guarantor under the aforesaid bankruptcy laws or other laws.
6. Representations and
Warranties – Anti-Terrorism. Borrower and Guarantor each represent,
warrant and covenant to Bank as follows: (i) it (a) is not and shall not become
a person whose property or interest in property is blocked or subject to
blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) does not engage
in and shall not engage in any dealings or transactions prohibited by Section 2
of such executive order, and is not and shall not otherwise become associated
with any such person in any manner violative of Section 2, (c) is not and shall
not become a person on the list of Specially Designated Nationals and Blocked
Persons, and (d) is not and shall not become subject to the limitations or
prohibitions under any other U.S. Department of Treasury’s Office of Foreign
Assets Control regulation or executive order; (ii) it shall remain in
compliance, in all material respects, with (a) the Trading with the Enemy Act,
as amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (b) the
Uniting And Strengthening America By Providing Appropriate Tools Required To
Intercept And Obstruct Terrorism (USA Patriot Act of 2001); and (iii) it has not
and shall not use all or any part of the extension of credit evidenced by the
Notes, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as
amended.
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7. Additional
Documents. Borrower and Guarantor agree to deliver documents
to Bank and take action Bank requests to evidence the agreements herein
contained, including Borrower’s and Guarantor’s continuing and unconditional
obligation to repay the indebtedness evidenced by the Notes, to secure the
Notes, and to perform all obligations under the Loan Documents.
8. Joinder by
Guarantor. Guarantor, by its execution of this Agreement,
hereby agrees to the terms, covenants, conditions and provisions contained in
this Agreement. The aforesaid agreements of Guarantor shall be in
addition to and not in lieu of the covenants, agreement and obligations of such
Guarantor set forth in the Guaranty and the other Loan Documents.
9. Usury. Bank
does not intend to and shall not reserve, charge and collect interest, fees and
charges under the Loan Documents, as herein modified, in excess of the maximum
rates and amounts permitted by applicable law. If any interest, fees
and charges are reserved, charged and collected in excess of the maximum rates
and amounts, it shall be construed as a mutual mistake, appropriate adjustments
shall be made by Bank and to the extent paid, the excess shall be returned to
the person making such a payment.
10. Waiver of
Jury Trial. Borrower and Guarantor,
to the extent permitted by law, each waive any right to a trial by jury in any
action arising from or related to this Agreement and waive any right to a trial
by jury in any action or proceeding arising from or related to the Loan
Documents, as herein modified.
11. Miscellaneous. (a)
This Agreement shall be construed according to and governed by the laws of the
State of North Carolina without regard to its conflicts of law principles. (b)
If any provision of this Agreement is adjudicated to be invalid, illegal or
unenforceable, in whole or in part, it will be deemed omitted to that extent and
all other provisions of this Agreement will remain in full force and effect. (c)
No change or modification of this Agreement, or waiver of any term or provision
hereof, shall be valid unless the same is in writing and signed by all parties
hereto. (d) The captions contained in this Agreement are for convenience of
reference only and in no event define, describe or limit the scope or intent of
this Agreement or any of the provisions or terms hereof. (e) This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, legal representatives, successors and assigns, provided, however,
that neither Borrower nor Guarantor shall assign this Agreement, any of the Loan
Documents or any of its rights, interests, duties or obligations hereunder or
thereunder in whole or in part without the prior written consent of Bank and
that any such assignment (whether voluntary or by operation of law) without said
consent shall be void. (f) This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be necessary
to produce one such counterpart. (g) This Agreement and the other Loan
Documents, as amended, represent the final agreement between the parties and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements. There are no unwritten agreements between the parties.
(h) It is the intention of the parties that this Agreement and the Loan
Documents be interpreted in a consistent manner; provided, however, in the event
of any irreconcilable conflict in the provisions of this Agreement and the
provisions of any of the other Loan Documents, the provisions of this Agreement
shall control.
[SIGNATURES
ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, this Agreement is
executed under seal as of the date first written above.
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WITNESS:
/s/
Xxxxxxx
Xxxxxxxxxx
Print
Name: Xxxxxxx Xxxxxxxxxx
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BORROWER:
ETRIALS,
INC.,
a
Delaware corporation
(formerly
known as etrials Worldwide, Inc.)
By:
/s/ Xxxxxx X. Xxxxxxxxx
III
Print
Name: Xxxxxx X. Xxxxxxxxx
III
Title:
CFO
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/s/
Xxxxxxx
Xxxxxxxxxx
Print
Name: Xxxxxxx Xxxxxxxxxx
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ETRIALS
WORLDWIDE, INC.,
a
Delaware corporation
(formerly
known as CEA Acquisition Corporation)
By:
/s/ Xxxxxx X. Xxxxxxxxx
III
Print
Name: Xxxxxx X. Xxxxxxxxx
III
Title:
CFO
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/s/
Xxxxxxx
Xxxxxxxxxx
Print
Name: Xxxxxxx Xxxxxxxxxx
/s/
Xxxxxx X.
Xxxxxx
Print
Name: Xxxxxx X. Xxxxxx
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GUARANTOR:
ETRIALS
WORLDWIDE LIMITED,
a
corporation organized under the laws of the UK
By:
/s/ Xxxxxx X. Xxxxxxxxx
III
Print
Name: Xxxxxx X. Xxxxxxxxx
III
Title:
CFO
BANK:
RBC
BANK (USA),
a
North Carolina banking corporation
(formerly
known as RBC Centura Bank)
By: /s/ Xxxxxxx X.
Xxxxx
Print
Name: Xxxxxxx X. Xxxxx
Title:
SVP
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