RBC Centura UNCONDITIONAL GUARANTY AGREEMENT (Continuing)
Exhibit
10.34
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Customer
No. __________________
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Loan
No. _____________________
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RBC
Centura
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UNCONDITIONAL
GUARANTY
AGREEMENT
(Continuing)
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|
XX
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Unlimited
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THIS
UNCONDITIONAL GUARANTY AGREEMENT (“Guaranty
Agreement”), entered into as of the 14th day of February, 2006, by ETRIALS
WORLDWIDE, INC.,
a
Delaware corporation (formerly known as CEA Acquisition Corporation), with
a
mailing address of 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx
00000
(“Guarantor”, whether one or more), to RBC
CENTURA BANK
(“Bank”), with a mailing address of 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Lending Service Center.
A. etrials,
Inc., a Delaware corporation (formerly known as etrials Worldwide, Inc.)
(“Customer”, whether one or more), desires to obtain extensions of credit or a
continuation of credit extensions from Bank and to generally engage in various
business transactions and contractual relationships with Bank.
B. Bank
is
unwilling to extend or continue to extend credit to, or to engage in business
transactions and enter into various contractual relationships with, or otherwise
to deal with Customer unless it receives an unconditional and continuing, joint
and several guaranty from Guarantor covering all “Obligations of Customer”, as
hereinafter defined.
NOW,
THEREFORE, in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
Guarantor, and in order to induce Bank, from time to time and at any number
of
times, in its sole discretion, to extend or continue to extend secured and
unsecured credit to Customer and to generally engage in various business
transactions and other contractual relationships with Customer, including,
without limitation, any one or more transactions or other contractual
relationships (whether with recourse or without; oral, written/tangible or
electronic) involving, related to or arising from (1) the lease or sale of
real,
personal or mixed property to Customer, whether under installment, conditional,
land or other types of contracts or agreements, (2) the purchase or discount
of
acceptances, (3) accounts, (4) chattel paper, both tangible and electronic,
(5)
contracts, including contract rights, (6) drafts, (7) documents, (8) general
intangibles, including payment intangibles, (9) investment property, (10)
financial assets, (11) interest rate swap, cap, floor or collar transactions,
and other similar transactions made pursuant to an International Swap Dealers
Association, Inc. Master Agreement or similar agreement, (12) letters-of-credit,
(13) letter-of-credit rights, (14) purchase money security agreements, (15)
instruments, including promissory notes, (16) deposit accounts, (17) commercial
or other types of tort claims, or (18) supporting obligations, including
guarantees, Guarantor,
jointly and severally, if more than one, hereby absolutely and unconditionally
guarantees to Bank, its successors and assigns, the
due
and punctual payment of (x) all indebtedness, liabilities and other obligations
which are presently owing by Customer to Bank, (y) all future indebtedness,
liabilities and other obligations which may at any time or times arise and
be
owing by Customer to Bank and (z) all present and future claims of Bank against
the Customer (including contract claims, tort claims and other types of claims),
as and when each of the foregoing becomes due and payable (whether by
acceleration or otherwise) in accordance with the respective terms of any
instruments (to include promissory notes), chattel paper, documents, general
intangibles (to include payment intangibles), accounts, letters of credit,
supporting obligations (to include guarantees), loan agreements, credit
agreements, security agreements, pledge agreements, deeds of trust, mortgages,
security deeds, trust deeds, deeds to secure debts, assignments, control
agreements, leases and other rental agreements (both real and personal), land
contracts and other contracts relating to real or personal property or property
rights and other undertakings which evidence each of Customer’s present and
future indebtedness, liabilities and other obligations to Bank, and Bank’s
present and future claims against Customer, which evidences
of
indebtedness, liabilities, claims and other
obligations may be oral, written or tangible, electronic or in some other medium
and shall include all amendments, modifications, renewals, extensions,
replacements and substitutions thereof and therefor (all indebtedness,
liabilities and other obligations of the Customer to Bank and claims of Bank
against Customer which are now existing and all indebtedness, liabilities and
other obligations of the Customer to Bank and claims of Bank against Customer
which may arise in the future, including all of those listed or referenced
in
this paragraph, shall be hereinafter collectively termed “Obligations of
Customer” and the Obligations of Customer shall be all-inclusive and encompass
primary and secondary indebtedness, liabilities and other obligations of
Customer, as a maker, co-maker, accommodation party, indorser, acceptor,
guarantor, surety, pledgor, assignor, grantor or otherwise, and claims against
Customer, arising, resulting from or otherwise created directly with Bank or
acquired by Bank through assignment, endorsement or otherwise, matured and
unmatured, absolute and contingent, joint and several, secured and unsecured,
monetary and nonmonetary, liquidated and unliquidated); provided,
however,
that
the maximum liability, jointly and severally, of Guarantor under this Guaranty
Agreement, at any one time outstanding, with respect to the aggregate principal
amount of the Obligations of Customer shall not exceed the amount stated above
under the heading of this Guaranty Agreement (if
no amount is stated, the joint and several liability of Guarantor under this
Guaranty Agreement is and the same shall be unlimited),
plus
all
due
and unpaid interest (to include default interest), finance charges, late payment
fees and other fees and charges, prepayment premiums and all costs and expenses
due and payable by Customer in connection with any and all of the foregoing
Obligations of Customer, including, without limitation, reasonable attorneys’
fees of Bank and fees of legal assistants, reasonable fees of accountants,
appraisers, adjusters, engineers, surveyors and other professionals employed
or
retained by or on behalf of Bank in connection with any and all of the
Obligations of Customer and intangible personal property taxes, documentary
stamp taxes, excise taxes and other similar taxes.
In
order
to implement the foregoing and as additional inducements to Bank, Guarantor
further covenants and agrees:
Section
1. Guaranty
of Payment. This guaranty is and shall remain an unconditional and
continuing guaranty of payment and performance and not a guaranty of collection,
shall remain in full force and effect irrespective of any interruption in the
business and other dealings and relations of Customer with Bank and shall apply
to and guarantee the due and punctual payment and performance of all Obligations
of Customer due by Customer to Bank. To that end, Guarantor hereby expressly
waives (1) any right to require Bank to bring any action against Customer,
(2)
any right to require Bank to bring any action against any other person, (3)
any
right to require Bank to recover from any collateral and other security and
(4)
any right to require Bank to recover from any balance of any deposit or other
accounts on the books of Bank in favor of Customer or any other person through
set-off, recoupment or otherwise; and, without limiting the generality of the
foregoing, Guarantor herewith expressly waives any right Guarantor otherwise
might have or might have had under the provisions of Section 26-7 of the North
Carolina General Statutes, et seq. or other North Carolina laws to require
Bank
to attempt to recover against Customer and to realize upon any collateral and
other security which Bank holds for the Obligations of Customer. Any Guarantor,
by a written notice, delivered personally to or received by certified or
registered United States Mail by an authorized officer of Bank in the Bank’s
Loan Servicing Center (or successor thereto), at the address of Bank first
above
given, may terminate their guaranty hereunder with respect to only those
Obligations of Customer which arise more than thirty (30) business days after
the date on which such written notice is so delivered to or received by said
Bank officer. Such written notice of termination shall be the sole and exclusive
method for terminating this guaranty as to future Obligations of Customer and
notwithstanding termination, this Guaranty Agreement and the guaranty created
hereby and all security given for this guaranty or the Obligations of Customer
shall remain in full force and effect as to all Obligations of Customer
incurred, existing or arising in any manner pre-termination, including, without
limitation, all Obligations of Customer arising under loan commitments which
exist pre-termination, all Obligations of Customer under lines of credit and
revolving lines of credit for advances both pre- and post-termination and all
Obligations of Customer arising from renewals, extensions, replacements,
substitutions, amendments and modifications of the Obligations of Customer,
in
whole or in part, whether any of the foregoing are made with or without notice
to Guarantor before or after the effective date of such
termination.
Section
2. Guaranties Not Dependent. The obligation of any Guarantor
executing this Guaranty Agreement is not and the same shall not be dependent
upon the subsequent execution hereof by any other person. And, the termination
of guaranty by one or more Guarantors, or the release, settlement or compromise
by Bank from time to time and at any number of times with respect to any one
or
more Guarantors, shall not affect the obligations and liability of the remaining
Guarantors hereunder, and as to the remaining Guarantors, this Guaranty
Agreement shall continue in effect as if such Guarantors had been the only
Guarantors executing this Guaranty Agreement.
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Section
3. Guaranty Not Diminished by Bank’s Actions.
3.1
Failure
to Perfect Liens. Guarantor agrees that Guarantor’s liability hereunder
shall not be diminished by any failure on the part of Bank to perfect and
continue perfection of (by filing, recording or otherwise) any lien and security
interest it may now have or hereafter acquire in any property securing this
Guaranty Agreement or the Obligations of Customer.
3.2.
Release or Surrender of Rights. Guarantor covenants and agrees that Bank
may at any time, and from time to time, in its sole discretion, do or cause
to
be done any one or more of the following: (1) renew, extend and otherwise change
the time, manner, place and terms of payment of any and all of the Obligations
of Customer, and otherwise modify the Obligations of Customer; (2) grant
indulgences generally from time to time to Customer and any other person liable
for the Obligations of Customer; (3) exchange, release and surrender any and
all
of the collateral and other security, or any part thereof or interest therein,
by whomsoever deposited, given or made, which is or may hereafter be held by
Bank or others on its behalf, or in which it has a lien and security interest
in
connection with any and all of the Obligations of Customer and any liabilities
and obligations of Guarantor hereunder; (4) sell and otherwise dispose of,
and
purchase all or parts of, or interests in, such collateral and other security
at
public and private sale, or to or through any securities intermediary or other
person, and after deducting all costs and expenses of every kind for collection,
preparation for sale, sale and delivery, the net proceeds of any such sales
and
other dispositions may be applied by Bank toward payment and satisfaction of
the
Obligations of Customer, in such order as Bank in its discretion may elect,
or
in such order as Bank may be required to apply the proceeds under applicable
law
- if applicable law directs a specific manner of application of proceeds; or
(5)
settle and compromise with the Customer, any insurance carrier and any other
person liable thereon, any and all of the Obligations of Customer, or
subordinate the payment of all and any part of same to the payment of any other
debts and claims which may at any time be due and owing to Bank or any other
persons, all in such manner and upon such terms as Bank may deem proper or
desirable, and without notice to or further assent from Guarantor, it being
agreed that Guarantor shall be and remain bound by this Guaranty Agreement
irrespective of the existence, value and condition of any collateral and other
security, or the impairment of any collateral and other security (to include,
without limitation, impairment due to any failure to perfect or continue
perfection of a lien and a security interest and any other act or inaction
by
Bank or other persons relative to the administration of this Guaranty Agreement,
the Obligations of Customer and any collateral and other security), or the
unenforceability of any of the Obligations of Customer or the discharge and
release of Customer from liability for any of the Obligations of Customer and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, failure to perfect or continue perfection and other act or inaction
relative to administration, sale and other disposition, application, renewal
or
extension and notwithstanding also that the Obligations of Customer may at
any
time exceed the aggregate principal sum hereinabove prescribed (if any such
limiting sum appears). If Bank should request Guarantor to consent to any of
the
foregoing, such request by Bank or consent by Guarantor shall not constitute
a
waiver by Bank of the provisions of this Section which permit such actions
without Guarantor’s consent, nor of any other provision of this Guaranty
Agreement relating to acts and inactions of Bank and such request or consent
shall not create a course of dealing between Bank and Guarantor that would
require the consent of Guarantor to any of the foregoing in the future.
Furthermore, this Guaranty Agreement shall not be construed to impose any
obligation on Bank to extend or continue to extend credit, to otherwise deal
with Customer at any time, or to take or refrain from taking any acts relative
to the administration of any of the Obligations of Customer and any collateral
and other security for the Obligations of Customer or this Guaranty
Agreement.
3.3
Waiver of Default; Forbearance. No waiver by Bank of any default by
Guarantor or Customer, or forbearance with respect to any default by either,
shall operate as a waiver of any other default or of the same default on a
future occasion - or require the forbearance with respect thereto - and no
waiver or forbearance by Bank shall limit Guarantor’s liability under this
Guaranty Agreement or negatively affect the validity and enforceability of
this
Guaranty Agreement in accordance with its stated terms.
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Section
4. Set-off; Application of Payments; Security.
4.1
Set-off on Service of Process. If any process is issued or ordered to be
served upon Bank, seeking to seize Customer’s or Guarantor’s rights or interests
in any deposit account, such deposit account shall be deemed to have been and
shall be set-off against any and all Obligations of Customer or all obligations
and liabilities of Guarantor hereunder, as applicable, as of the time of the
issuance of any such writ or process, whether or not Customer, Guarantor or
Bank
shall then have been served with notice thereof.
4.2
Application of Moneys and other Value. All moneys and other things of
value available to and received by Bank for application toward payment of (or
reduction of) the Obligations of Customer may be applied by Bank to such
individual debts, liabilities, obligations and claims in such manner, and
apportioned in such amounts and at such times, as Bank, in its sole discretion,
may deem suitable or desirable, or in such order as Bank may be required to
apply the money or other things of value under applicable law - if applicable
law directs a specific manner of application.
4.3
Security; Set-off. As security for any and all liabilities of Guarantor
hereunder, now existing and hereafter arising, Guarantor hereby grants Bank
a
security interest in any and all moneys, furniture, fixtures, equipment,
inventory, documents, investment property, financial assets, promissory notes
and other instruments, chattel paper, accounts, payment intangibles and other
general intangibles, deposit accounts, supporting obligations, including
guarantees, letters-of-credit and letters-of-credit rights and any and all
other
forms of property and things of value (real, personal or mixed) and any right,
title and interest of Guarantor therein and thereto and the proceeds thereof,
which have been and may hereafter be deposited or left with Bank (or with any
agent or other third person acting on Bank’s behalf) by or for the account or
credit of Guarantor, including, without limitation, any property in which
Guarantor may have an interest. Furthermore, where any obligation of Guarantor
is due and unpaid Bank hereunder, Bank is herewith authorized to exercise its
right of set-off or “bank lien” as to any demand, checking, time, savings, and
other deposit accounts of any nature maintained in and with it by Guarantor,
without advance notice. Such right of set-off shall also be applicable and
exercised by Bank, in its sole discretion, where Bank is indebted to any
Guarantor by reason of any certificate of deposit, bond, instrument or
otherwise. Bank also is granted and shall otherwise have recoupment rights
and
may exercise such recoupment rights where any obligation of Guarantor is due
and
unpaid to Bank hereunder. If Guarantor or others have executed and delivered
to
Bank any separate deeds of trust, mortgages, security deeds, deeds to secure
debts, trust deeds, security agreements, assignments or other security documents
in connection with this Guaranty Agreement, the property and property rights
therein described shall secure this Guaranty Agreement and Guarantor’s payment
and performance obligations hereunder to the extent and all as provided herein
and in said separate security documents. If Guarantor or others have so executed
and delivered security documents as aforesaid, some or all of them may be listed
or described on Exhibit A attached hereto, but, the failure of any or all of
such security documents to be listed or described thereon shall not limit this
Guaranty Agreement, the effectiveness and enforceability of any security
documents not listed or described on Exhibit A and the liabilities of Guarantor
and others hereunder or under such security documents.
Section
5. Financial Information on Guarantor; Bank’s Records
Controlling. Guarantor shall provide Bank with such financial information as
Bank may from time to time request. Any statement of account or records that
bind the Customer shall be binding against the Guarantor and the records of
Bank
maintained in the ordinary course of its business with respect to the
Obligations of Customer shall be binding on Guarantor in all respects,
including, without limitation, the extent and nature of the Obligations of
Customer and the liabilities of Guarantor under this Guaranty
Agreement.
Section
6. Customer’s Organization Status.
6.1
Authority
of Customer’s Officers and Employees. If Customer is not an individual but a
registered organization or other form of organization, this Guaranty Agreement
covers all Obligations of Customer purporting to be created or undertaken on
behalf of such organization by any one or more shareholder, director, officer,
executive, employee, partner, manager, member or agent of such organization,
without regard to the actual authority of any such person, whether or not
organization resolutions, proper or otherwise, are given by any Customer to
Bank, and whether or not such purported organizations are legally chartered,
registered or organized.
6.2
Change in Legal Status. In the event of a change in, or amendment or
modification of the legal status or existence of the Customer, this Guaranty
Agreement shall continue and shall also cover the indebtedness of the Customer
under the new or amended status, according to the terms hereof guaranteeing
the
obligations of the original Customer.
4
Section
7. Guarantor’s Waiver of Rights.
7.1
Subordination
of Customer’s Debts to Guarantor. In the event that Guarantor shall pay any
sums under this Guaranty Agreement, or in the event that Customer or any owner
of property in which Bank has been granted a lien or security interest to secure
the Obligations of Customer is now or shall hereafter become indebted to
Guarantor, Guarantor agrees (1) that the amount of such indebtedness and all
interest thereon shall at all times be subordinate as to lien, times of payment
and in all other respects to all sums at any time owing to Bank with respect
to
the Obligations of Customer, (2) that Guarantor shall not be entitled to enforce
or receive payment on account of such other indebtedness until all sums owing
to
the Bank have been paid in full and (3) that to the extent Guarantor does
enforce or receive payment in contravention of Guarantor’s agreement hereunder,
all moneys, property and other things of value received by Guarantor and others
on Guarantor’s behalf shall be held by Guarantor and such other persons in trust
for Bank and for the account of Bank and the same shall be paid or delivered
to
Bank immediately upon request therefor by Bank.
7.2.
Reinstatement of Obligations of Customer. Guarantor agrees that in the
event any judgment or any court order or any administrative order for turnover
or recovery is entered against Bank (whether by consent, compromise, settlement
or otherwise) for, or Bank is required or agrees to repay (1) the amount of
any
monetary payment or transfer of any property (whether real, personal or mixed,
tangible or intangible, or the value thereof) made to Bank by or on behalf
of
the Customer or Guarantor for credit to the Obligations of Customer, or (2)
the
amount of any set-off or recoupment exercised by Bank and credited to
Obligations of Customer, then in such event (and notwithstanding the prior
discharge or satisfaction in whole or in part of any or all Obligations of
Customer due Bank or the written or stamped notation of cancellation, release,
or satisfaction affixed to this Guaranty Agreement or any instrument of
indebtedness evidencing the Obligations of Customer, or any prior notice of
the
termination of this Guaranty Agreement as to future debts of Customer) the
amount or value of any such payments, property, set-off and recoupment recovered
from Bank shall be deemed to be Obligations of Customer and this Guaranty
Agreement and the liabilities of Guarantor hereunder shall be automatically
revived and reinstated and shall continue and remain in full force and effect
as
to the same, together with interest thereon from date of recovery at the rate
applicable to the Obligations of Customer to which any such payments, transfers
and set-off were credited, costs of court, and the reasonable attorneys’ fees
incurred by Bank in connection therewith.
7.3
Waiver of Subrogation. Guarantor expressly waives, for Bank’s benefit and
the benefit of Customer and any other guarantor, maker, endorser, obligor and
debtor on the Obligations of Customer, any and all rights of recourse against
Customer, and any other guarantor, maker, endorser, obligor and debtor on the
Obligations of Customer, and property and assets of the same, arising out of
any
payment made under or pursuant to this Guaranty Agreement, including any claim
of subrogation, reimbursement, exoneration, contribution and indemnity that
Guarantor may have against the Customer, any other guarantor, maker, endorser,
obligor and debtor on the Obligations of Customer. Guarantor will not enter
into
any contract or agreement in violation of the provisions hereinabove, and any
such purported contract or agreement shall be void ab initio.
Section
8. Events of Default; Remedies.
8.1
Events
of Default. Guarantor shall be in default under this Guaranty Agreement upon
the happening of any of the following events, circumstances and conditions,
or
the occurrence of an event which, with the giving of notice or a lapse of time,
or both, would become an event of default hereunder, to wit:
(a)
default in the payment or performance of any of the obligations or of any
covenant, warranty or liability contained or referred to herein, or contained
in
any other contract, agreement or record of Customer or Guarantor with Bank,
whether now existing or hereafter arising;
(b)
any warranty, representation or statement made or furnished, or hereafter made
or furnished, to Bank or others for the benefit of Bank, by or on behalf of
Customer or Guarantor, in connection with this Guaranty Agreement, or to induce
Bank to extend credit or deal with Customer or Guarantor or otherwise with
respect to the Obligations of Customer proving to have been false or inaccurate
in any material respect when made or furnished;
(c)
the death or mental incompetency of a Guarantor or Customer who is an individual
and the dissolution, liquidation, termination of existence, merger or change
in
control of or in a Guarantor or Customer that is a registered organization
or
other organization;
(d)
insolvency, business failure, appointment of a receiver for any part of the
property of, assignment for the benefit of creditors by, or the commencement
of
any proceeding under any state or federal bankruptcy or insolvency laws by
or
against Guarantor or Customer;
(e)
failure of a Customer or Guarantor that is a registered organization to maintain
its existence in good standing;
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(f)
the entry of any monetary judgment or the assessment or filing of any tax lien
against either Customer or Guarantor or the issuance of any writ of garnishment
or attachment against any property of, debts due or rights of Customer or
Guarantor, to specifically include the commencement of any action or proceeding
to seize moneys of Customer or Guarantor on deposit in any deposit account
with
Bank;
(g)
if Customer or Guarantor is a registered organization or other organization,
the
default in the payment or performance of any indebtedness or other obligation
which is now owing to Bank or any indebtedness or other obligation which arises
in the future and is owing to Bank by any subsidiary of Guarantor or the
Customer; or
(h)
if Bank should otherwise deem itself, any security interests, its collateral
or
other security, or the Obligations of Customer guaranteed hereby and hereunder
or the liability of Guarantor hereunder unsafe or insecure, or should Bank,
in
good faith, believe that the prospect of payment or other performance by
Customer or Guarantor is impaired.
8.2.
Remedies.
Upon the occurrence of any of the foregoing events, circumstances or conditions
of default set forth in Section
8.1
above,
at Bank’s option, all of the obligations evidenced and created in this Guaranty
Agreement and secured or guaranteed hereby shall immediately be due and payable
without demand or notice. Furthermore, whether or not Bank accelerates the
aforesaid obligations because of the occurrence of an event of default, Bank
may
exercise, and cause to be exercised by others on its behalf, all of the rights
and remedies granted hereunder that may be exercisable by Bank upon the
occurrence of an event of default, all of the rights or remedies of a secured
party or holder-in-due course under the Uniform Commercial Code in the
jurisdiction whose laws govern this Guaranty Agreement, as the same is in effect
from time to time, and all rights and remedies otherwise afforded in law and
in
equity under other laws of the aforementioned jurisdiction.
Section
9. Miscellaneous.
9.1
No
Effect on Other Guaranties. This Guaranty Agreement does not terminate,
cancel, supersede, renew or substitute for any existing guaranty or other
supporting obligation to Bank by any Guarantor, unless expressly provided
herein, and the execution and delivery hereafter to Bank by any Guarantor of
a
new guaranty and other supporting obligation shall not terminate, cancel,
supersede, or be a renewal or substitution for this Guaranty Agreement, unless
expressly provided therein, and all rights and remedies of Bank hereunder,
under
any other existing guaranty agreement and other supporting obligation, and
under
any guaranty agreement and other supporting obligation hereafter given to Bank
by any Guarantor shall be cumulative and may be enforced singly, successively,
alternately and concurrently.
9.2
No Reliance by Guarantor on Bank. Guarantor warrants and covenants that
Guarantor has made such inquiries as Guarantor deems necessary in order to
ascertain the financial condition of Customer, and has, in fact, ascertained
the
financial condition of Customer and is satisfied with such financial condition,
that Guarantor has adequate means to obtain from Customer, on a continuing
basis, information concerning the financial condition of Customer, and that
Guarantor has not relied, and will not rely, on Bank to provide such
information, now or in the future. The relationship of Bank to Guarantor is
that
of a creditor to an obligor or debtor; and in furtherance thereof and in
explanation thereof, Bank has no fiduciary, trust, guardian, representative,
partnership, joint venturer or other similar relationship to or with Guarantor
and no such relationship shall be drawn or implied from (1) this Guaranty
Agreement and any security documents relative to this Guaranty Agreement, (2)
the Obligations of Customer and any of the Loan Documents and (3) any of Bank’s
actions or inactions hereunder or thereunder, or with respect hereto or thereto
- and, Bank has no obligation to Guarantor and any other person relative to
administration of the Obligations of Customer, the Loan Documents, this Guaranty
Agreement and any collateral and other security for any of the foregoing, or
any
part or parts thereof or interests therein.
9.3.
Credit Investigations; Sharing of Information. Bank is irrevocably
authorized by Guarantor to make or have made such credit investigations as
it
deems appropriate to evaluate Guarantor’s credit, personal and financial
standing and employment, and Guarantor authorizes Bank to share with consumer
reporting agencies and creditors its experiences with Guarantor and other
information in Bank’s possession relative to Guarantor. Bank shall not have any
obligation or responsibility to do any one or more of the following: (1)
protect
or preserve any collateral and other security given or to be given in connection
herewith against the rights of third persons having an interest therein;
(2)
provide information to third persons relative to the Obligations of Customer,
Bank’s liens or security interests in any collateral and other security, this
Guaranty Agreement or otherwise with respect to Guarantor; or (3) subordinate
its security interests in any collateral and other security to the interests
of
any third persons or to enter into control agreements relative to such
collateral and other security.
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9.4.
Maintenance of Records by Bank. Bank is authorized to maintain, store and
otherwise retain this Guaranty Agreement, any separate security documents and
other agreements executed and delivered or to be executed and delivered by
Guarantor and others on Guarantor’s behalf to Bank in their original, inscribed
tangible form or a record thereof in an electronic medium or other non-tangible
medium which permits such record to be retrieved in a perceivable form; and
a
record of this Guaranty Agreement and such other documents and agreements in
a
non-tangible medium which is retrievable in a perceivable form shall be the
agreement of Guarantor and others on Guarantor’s behalf, as applicable, to the
same extent as if this Guaranty Agreement and such other documents and
agreements were in their original, inscribed tangible medium and such a record
shall be binding on and enforceable against Guarantor and such others
notwithstanding the same are in a non-tangible form and notwithstanding the
signatures of the signatories thereof are electronic, typed, printed, computer
generated, facsimiles or other reproductions, representations or
forms.
9.5.
Financing Statements. Guarantor irrevocably authorizes Bank to file such
financing statements as may be necessary to protect, in Bank’s opinion, Bank’s
security interests and, to the extent Bank deems necessary or appropriate,
to
sign the name of Guarantor with the same force and effect as if signed by
Guarantor and to make public in financing statements and other public filings
such information regarding Guarantor as Bank deems necessary or appropriate,
including, without limitation, federal tax identification numbers, social
security numbers and other identifying information.
9.6.
Documentary and Intangibles Taxes. To the extent not prohibited by law
and notwithstanding who is liable for payment of the taxes and fees, Guarantor
shall pay, on Bank’s demand, all intangible personal property taxes, documentary
stamp taxes, excise taxes and other similar taxes assessed, charged or required
to be paid in connection with this Guaranty Agreement.
9.7.
Payment of Expenses. Without limiting any other provision of this
Guaranty Agreement relating to Guarantor’s payment of costs and expenses
incurred by and on behalf of Bank, but in addition thereto, Guarantor shall
pay
to Bank on demand any and all costs and expenses of collection, including
reasonable attorneys’ fees in the amount of fifteen (15%) percent of the
outstanding amount of the Obligations of Customer after default and, if
applicable law prohibits payment of attorneys’ fees when collection is through
an attorney who is a salaried employee of Bank, referral to an attorney not
a
salaried employee of Bank. Guarantor shall also pay all cost and expenses
incurred or paid by and on behalf of Bank in protecting its interest in any
collateral and other security securing this Guaranty Agreement and in enforcing
and protecting its rights hereunder. All of the foregoing costs and expenses
shall be paid with interest thereon at the contract rate at which interest
accrues from time to time on the Obligations of Customer - or if interest
accrues at different contract rates, any one of the contract rates at which
interest accrues as selected by Bank, in its sole discretion, which rate may
be
fixed or variable - from the earlier of the date paid, incurred or on which
they
become due until such costs and expenses are paid by Guarantor. All sums so
paid
and expended by Bank, and the interest thereon, shall be added to the amounts
payable under this Guaranty Agreement.
9.8.
Waiver of Notice and Presentment; Defenses. Guarantor hereby waives to
the extent permitted by law: (1) notice of acceptance of this Guaranty
Agreement; (2) notice of extensions of credit and continuations of credit
extensions to Customer by Bank; (3) notice of entering into and engaging in
business transactions and contractual relationships and any other dealings
between Customer and Bank; (4) presentment and demand for payment of any of
the
Obligations of Customer; (5) protest and notice of dishonor or default to
Guarantor and to any other person with respect to any of the Obligations of
Customer and with respect to any security therefor; (6) all other notices to
which Guarantor might otherwise be entitled; (7) any demand for payment under
this Guaranty Agreement; (8) any defense of any kind which the Customer might
have; and (9) application of any other defenses available to
Guarantor.
7
9.9.
Jury, Venue, Jurisdiction. This Guaranty Agreement shall be deemed to
have been executed and delivered in the State of North Carolina, regardless
of
where the signatories may be located at the time of execution, and this Guaranty
Agreement shall be governed by and construed in accordance with the substantive
laws of such jurisdiction, excluding, however, the conflict of law and choice
of
law provisions thereof. Guarantor: (a) to the extent permitted by law, waives
any right to a trial by jury in any action arising from or related to this
Guaranty Agreement or any of the Obligations of Customer; (b) irrevocably
submits to the jurisdiction of either (1) the state courts of the jurisdiction
identified above in this Section or (2) a United States District Court for
any
federal district in such jurisdiction over any action or proceeding arising
from
or related to this Guaranty Agreement or any of the Obligations of Customer;
and
(c) irrevocably waives, to the fullest extent Guarantor may effectively do
so,
the defense of improper venue or an inconvenient forum to the maintenance of
any
such action or proceeding. Nothing in this Section shall affect or impair Bank’s
right to serve legal process in any manner permitted by law or Bank’s right to
bring any action or proceeding against Guarantor or Guarantor’s property in the
courts of any other jurisdiction.
9.10.
No Usury; No Illegal Provisions. Anything contained herein to the
contrary notwithstanding, if for any reason the effective rate of interest
on
any of the Obligations of Customer should exceed the maximum lawful contract
rate, the effective rate of such obligations shall be deemed reduced to and
shall be such maximum lawful contract rate. Any sums of interest which have
been
collected in excess of such maximum lawful contract rate shall be applied,
at
Bank’s election - if permitted by applicable law, as a credit against the unpaid
principal balance due on the Obligations of Customer, or hereunder, or returned
to the person who paid the interest that exceeded the maximum lawful contract
rate. Wherever possible each provision of this Guaranty Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty Agreement shall be prohibited or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Guaranty Agreement
9.11.
Joint and Several Liability; Use of Terms. If more than one person has
signed this Guaranty Agreement, such parties are jointly and severally obligated
hereunder. Further, (1) words in the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the
singular numbered meaning include the plural number, and vice versa; (2) words
importing persons include firms, companies, associations, general partnerships,
limited partnerships, limited liability partnerships, limited liability limited
partnerships, limited liability companies, trusts, business trusts, corporations
and other organizations, including public and quasi-public bodies, as well
as
individuals; (3) as the context requires, the word “and” may have a joint
meaning or a several meaning and the word “or” may have an inclusive meaning or
an exclusive meaning; (4) the term “Guarantor”, as used herein, shall (if signed
by more than one person) mean the “Guarantors and each of them”; (5) the term
“subsidiary” means any registered organization or other organization (i) the
majority (by number of votes) of the outstanding voting interests of which
is at
the time owned or controlled by Guarantor or Customer, or by one or more
subsidiaries of Guarantor or Customer, or Guarantor or Customer and one or
more
subsidiaries of Guarantor or Customer, or (ii) otherwise controlled by or within
the control of Guarantor, Customer or any subsidiary of either; (6) terms used
in this Guaranty Agreement which are not defined herein shall have the meaning
ascribed thereto in the Uniform Commercial Code in effect from time to time
in
the jurisdiction whose laws govern this Guaranty Agreement; (7) all references
to “Guaranty Agreement” mean this Guaranty Agreement and all amendments,
modifications, renewals, extensions, replacements and substitutions thereof
and
therefor; and (8) this Guaranty Agreement shall not be applied, interpreted
and
construed more strictly against a person because that person or that person’s
attorney drafted this Guaranty Agreement.
9.12.
Successors and Assigns. This Guaranty Agreement shall be binding upon
Guarantor, and the heirs, executors, administrators, successors and assigns
of
Guarantor; it shall inure to the benefit of, and be enforceable by Bank, and
its
successors, transferees and assigns; and Guarantor waives and will not assert
against any transferee or assignee any claims, defenses, set-offs and rights
of
recoupment which Guarantor could assert against Bank, except defenses which
Guarantor cannot waive. The death of Guarantor shall not terminate any liability
hereunder. This Guaranty Agreement shall remain in force after Guarantor’s death
until written notice of termination, sent by a legal representative of
Guarantor, is received by Bank as set forth in Section 1 above and such
termination shall be limited as provided in Section 1 above.
9.13.
Entire Agreement. This Guaranty Agreement constitutes the entire
agreement between the Guarantor and Bank with respect to this guaranty, and
no
waivers and modifications shall be valid unless they are in writing and duly
executed by the party to be charged thereby, and further expressly approved
in
writing by an authorized officer of Bank in the Bank’s Loan Servicing Center (or
successor thereto). Notwithstanding the foregoing, in the event any provision
of
this Guaranty Agreement should be left blank or incomplete, Guarantor hereby
authorizes and empowers Bank to supply and complete the necessary information
to
complete or fill in the blank provision and Bank, or any other holder hereof,
may correct patent errors in this Guaranty Agreement.
8
9.14.
Time of Essence; Notices. Time is of the essence under this Guaranty
Agreement. All notices, certificates and other communications hereunder shall
be
deemed given when mailed by registered or certified mail, postage prepaid,
return receipt requested, addressed to the addresses set forth herein. Guarantor
and Bank may, by written notice given hereunder, designate a different address
where communications should be sent. Bank may direct, by notice to Guarantor,
that notices, requests and other communications shall be sent electronically
or
in some other non-tangible medium.
9.15.
Guarantor’s Acknowledgment. Guarantor acknowledges that Guarantor has
read this Guaranty and fully understands the rights granted to Bank herein,
and
the waiver of rights of Guarantor. Guarantor further acknowledges that each
of
the terms contained herein is a material inducement to Bank to extend credit
to
the Customer and is necessary in order for the Bank to fully realize the
benefits of Bank’s bargained for agreement with the Customer and Guarantor.
Guarantor: (1) represents to Bank the information contained in this Guaranty
Agreement is true, accurate and correct; (2) agrees to promptly notify Bank
in
writing of any changes therein and any inaccuracies thereto, such notification
to be addressed to Bank at Bank’s address set forth herein; and (3) acknowledges
that Bank is relying upon the information being complete, accurate and correct
and that Bank is under no obligation to make an independent investigation with
respect to the accuracy and correctness thereof and has not made an independent
investigation regarding same.
(Signatures
On Following Pages)
9
The
undersigned has executed this Guaranty Agreement as of the day and year first
above stated.
|
GUARANTOR:
ETRIALS
WORLDWIDE, INC.
(formerly
known as CEA Acquisition Corporation)
By:/s/
Xxxxx X. Xxxxx, Xx.
Print
Name:Xxxxx
X. Xxxxx, Xx.
Title:
Chief
Financial Officer
|
WITNESS:
/s/
Xxxxxx Xxxxxxxxxxx
Print
Name: Xxxxxx
Xxxxxxxxxxx
|
ACKNOWLEDGMENT
STATE
OF
NORTH CAROLINA
COUNTY
OF
WAKE
I,
a
Notary Public for the County and State aforesaid, do hereby certify that Xxxxx
X. Xxxxx, Xx. personally came before me this day and acknowledged that he is
the
Chief Financial Officer of ETRIALS WORLDWIDE, Inc., a Delaware corporation
(formerly known as CEA Acquisition Corporation), and that he, as Chief Financial
Officer, being authorized to do so, executed the foregoing on behalf of the
corporation. Witness my hand and official seal, this the 14th
day of
February, 2006.
|
My
Commission Expires: August
9, 2009
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
Notary Public
|
|
|
Print
Name: Xxxxxxx
X. Xxxxxxx
|
|
|
(Affix
Notary Seal)
|
10
Exhibit
A
Attached
to
(Continuing)
Description
of Security Documents (List or describe agreements and documents that secure
this Guaranty Agreement): NONE.
11
