RBC Centura Assignment and Assumption Agreement
Exhibit
99.3
Customer
No.
Loan
No.
|
RBC
Centura
|
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (“Agreement”) is entered into as of the 31st
day of May, 2007, by and between ETRIALS,
INC.,
a
Delaware corporation, formerly known as etrials Worldwide, Inc., with a mailing
address of 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(“Assignor”), 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
(“Assignee”), and RBC
CENTURA BANK,
a North
Carolina banking corporation, with a mailing address of 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000 (“Bank”).
A.
Assignor
has made and issued to Bank the promissory notes (collectively, the “Note”)
described on Attachment
1 to
this
Agreement.
B.
If
so
indicated on Attachment
1,
the
Note is secured and the security documents are generally as described on
Attachment
1.
C.
The
Note,
any security documents described on Attachment
1
and any
other loan and security documents that are outstanding with respect to the
extension of credit evidenced by the Note, even if not listed on Attachment
1,
are
hereinafter collectively referred to as the “Contract” and the Contract is
hereby incorporated herein as a part of this Agreement.
D.
Assignee
desires to assume all of the obligations of Assignor under the Contract and
Bank
is willing to permit Assignee to so do, all as provided in and subject to the
terms and conditions of this Agreement.
NOW,
THEREFORE, for and in consideration of the premises aforesaid, the transfers
between the Assignor and Assignee, the mutual covenants and agreements
hereinafter contained, and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto covenant,
contract and agree as follows:
Section
1. Assignment.
Assignor hereby transfers, sets over and assigns to Assignee all of Assignor’s
rights, responsibilities, liabilities, obligations and interests in, to and
under the Contract, and Assignee hereby unconditionally accepts all of
Assignor’s rights, responsibilities, liabilities, obligations and interests in,
to and under the Contract. Unless otherwise specifically provided in this
Agreement, the assignment and assumption of the Contract under this Agreement
shall not extend the maturity date of the Note and shall not extend any other
dates and times for performance under the Note; and, the assignment and
assumption shall not extend any of the dates and times for performance under
or
in connection with the other instruments, documents, agreements, certificates
and statements which make up and form the Contract.
Section
2. Assumption.
Assignee hereby unconditionally assumes each and all the responsibilities,
liabilities and obligations of the Assignor in, to and under the Contract,
including both those that now exist and those that arise hereafter. In
accordance with the foregoing but without limiting the generality of the
forgoing, Assignee agrees: (1) to pay to Bank all amounts that are presently
due
under the Contract and agrees to pay to Bank all amounts that may in the future
become due under the Contract at the time, in the manner and in all other
respects as provided in the Contract, (2) to perform all the other obligations
required to be performed by Assignor under and in connection with the Contract
at the time, in the manner and in all other respects as provided in the
Contract, and (3) to be bound by all of the representations, terms, conditions,
covenants and provisions of the Contract as fully and to the same extent as
though such Contract and each of the instruments, documents, agreements,
certificates and statements which are a part of the Contract had originally
been
made, executed and delivered by Assignee to Bank, all without regard to any
right of setoff, counterclaim or other defense which Assignee may now have
against Assignor or any other person (inclusive of Bank) and without regard
to
any right of setoff, counterclaim or other defense which Assignee may hereafter
have against Assignor or any other person (inclusive of Bank). Assignee agrees
to execute and deliver all financing statements, certifications, authorizations,
instruments, documents and agreements, and to take all actions which the Bank
may reasonably request in order that Bank shall obtain the full benefit of
this
Agreement and in order that Bank shall have the rights and powers herein
created.
Section
3. Collateral.
Except
as provided in Attachment
1
under
the heading “Released Collateral”, all of the property and property rights
(“Collateral”) which now secure and all of the property and property rights
which may in the future secure the obligations evidenced by and arising under
the Contract are and shall remain subject to the liens, charges and encumbrances
of Bank’s security interests and liens as created by or established in the
Contract, and the Bank shall retain its lien priority in such Collateral.
Nothing herein contained or done pursuant hereto shall affect or be construed
to
affect the liens, charges and encumbrances of the Contract or the priority
thereof over other liens, charges and encumbrances.
Section
4. Liability
of Assignor and other Persons.
Except
as provided in Attachment
1
under
the heading “Released Parties”, this Agreement does not release, discharge or
affect the liability of, and nothing contained or done pursuant to this
Agreement shall release, discharge or affect the liability of any person who
is
now liable under or on account of the Contract or any one or more of the
instruments, documents, agreements, certificates and statements which are a
part
of the Contract, including, without limitation, the Assignor, any guarantor
and
any person who has pledged, hypothecated or otherwise granted to Bank a security
interest or lien in any property owned by such person; and this Agreement does
not release, discharge or affect the liability of, and nothing contained or
done
pursuant to this Agreement shall release, discharge or affect the liability
of
any person who may in the future be liable under or on account of the Contract
or any one or more of the instruments, documents, agreements, certificates
and
statements which are a part of the Contract, including, without limitation,
the
Assignor, any guarantor and any person who has pledged, hypothecated or
otherwise granted to Bank a security interest or lien in any property owned
by
such person. Unless otherwise specifically provided in Attachment
1,
each
and all of the foregoing persons shall continue to remain liable under the
Contract to the same extent and with the same force and effect as set forth
in
the instrument, document or agreement creating or establishing their liability
under or on account of the Contract.
Section
5. [Intentionally
Omitted].
Section
6. Documentary
Stamps, etc.
To the
extent not prohibited by law and notwithstanding who is liable for payment
of
the taxes and fees, Assignee shall pay, on Bank’s demand, all intangible taxes,
documentary stamp taxes, excise taxes and other similar taxes assessed, charged
and required to be paid in connection with this Agreement, and any future
extension, renewal and modification of the Contract, or assessed, charged and
required to be paid in connection with any of the instruments, documents,
agreements, certificates and statements which make up the Contract.
Section
7. Costs
and Expenses.
All of
the costs and expenses incurred by Bank in connection with this Agreement and
the assignment and assumption which is the subject of this Agreement shall
be
paid by Assignee upon the request of and at the time of demand for payment
thereof made by Bank on Assignee. As used herein, “costs and expenses” include,
without limitation, reasonable attorneys’ fees and fees of legal assistants, and
reasonable fees of accountants, engineers, surveyors, appraisers and other
professionals or experts - and all references to attorneys’ fees or fees of
legal assistants, or fees of accountants, engineers, surveyors, appraisers
or
other professionals or experts shall mean reasonable fees.
Section
8. Usury;
Invalidity of Provisions.
Bank
does not intend to and shall not reserve, charge and collect interest, fees
and
charges under the Contract 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. Wherever
possible each provision of the Contract shall be interpreted and applied in
such
manner as to be effective and valid under applicable law, but if any provision
of the Contract shall be prohibited or invalid under such law, or the
application thereof 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 and the remaining
provisions of the Contract, or the application thereof shall be in a manner
and
to an extent permissible under applicable law.
Section
9. Notices.
The
address to which notices to Assignee should be sent under the Contract is the
address for Assignee set forth above. Changes in Assignee’s address must be
given in accordance with the provisions of the Contract relating to providing
notice of a change in an address to which notices should be sent.
2
Section
10. Maintenance
of Records.
Bank is
authorized to maintain, store and otherwise retain this Agreement and the other
documents constituting the Contract in their original, inscribed tangible forms
or records thereof in an electronic medium or other non-tangible medium which
permits such records to be retrieved in perceivable forms.
Section
11. Credit
Investigations; Bank’s Responsibilities.
Bank is
irrevocably authorized to make and have made such credit investigations as
it
deems appropriate to evaluate the credit, personal and financial standing and
employment of any person primarily or secondarily obligated under the Contract,
and Bank is authorized to share with consumer reporting agencies and creditors
its experiences with any of such persons and other information in Bank’s
possession relative to any of such persons. Bank shall not have any obligation
or responsibility to do any of the following: (1) protect and preserve any
of
the Collateral and other security given or to be given in connection with the
Contract against the rights of third persons having an interest therein; (2)
provide information to third persons relative to the Contract, Bank’s liens and
security interests in any of the Collateral, or otherwise with respect to any
person primarily or secondarily obligated under the Contract; and (3)
subordinate its liens and security interests in any of the Collateral to the
interests of any third persons or to enter into control agreements relative
to
any of the Collateral.
Section
12. Waiver
of Jury Trial.
Assignor and Assignee to the extent permitted by law, waive any right to a
trial
by jury in any action arising from or related to this Agreement and they each
waive any right to a trial by jury in any action arising from or related to
the
Contract.
Section
13. Anti-Money
Laundering and Anti-Terrorism.
Assignor and Assignee, each for itself but not for the other, represent, warrant
and covenant to Bank as follows: (1) neither Assignor nor Assignee (a) is or
shall 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) engage
in or shall engage in any dealings or transactions prohibited by Section 2
of
such executive order, or is or shall become otherwise associated with any such
person in any manner violative of Section 2, or (c) is or shall become a person
on the list of Specially Designated Nationals and Blocked Persons or is subject
to or shall 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; (2) Assignor and Assignee are and 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 (3) neither Assignor nor
Assignee has or shall use all or any part of the proceeds of or related to
the
loan evidenced by or secured by the Contract, 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.
Section
14. Use
and Application of Terms.
To the
end of achieving the full realization by Bank of its rights and remedies under
this Agreement, including payment in full of the Note, in using and applying
the
various terms, provisions and conditions in this Agreement, the following shall
apply: (1) the terms “hereby”, “hereof”, “herein”, “hereunder”, and any similar
words, refer to this Agreement; (2) 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; (3)
words importing persons include firms, companies, associations, general
partnerships, limited partnerships, limited liability partnerships, limited
liability companies, limited liability limited partnerships, trusts, business
trusts, corporations and other legal organizations, including public and
quasi-public bodies, as well as individuals; (4) the use of the terms
“including” or “included in”, or the use of examples generally, are not intended
to be limiting, but shall mean, without limitation, the examples provided and
others that are not listed, whether similar or dissimilar; and (5) 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.
Section
15. Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State whose laws govern the Contract, excepting, however, its conflict of law
and choice of law provisions.
Section
16. Entire
Agreement.
This
Agreement shall become a part of the Contract and the Contract, inclusive of
this Agreement, contains the entire agreement of the parties to the Contract.
Assignor, Assignee and Bank do hereby ratify and confirm the terms of the
Contract, all of which shall remain in full force and effect, as modified by
this Agreement. The Contract, inclusive of this Agreement, shall be binding
upon
any assignee and successor in interest of the parties hereto. Assignor and
Assignee waive and will not assert against any transferee and assignee of Bank
any claims, defenses, set-offs and rights of recoupment which either of them
could assert against Bank, except defenses which cannot be waived. All
references herein to the “Agreement” include any supplemental agreements that
must be filed or recorded to reflect modifications to any of the instruments,
documents and agreements making up the Contract that are of record.
3
Section
17. Joinder
by Guarantor.
ETRIALS
WORLDWIDE LIMITED,
a
company organized under the laws of the United Kingdom (“Guarantor”), by its
execution of this Agreement, hereby agrees to the terms, covenants, conditions
and provisions contained in this Agreement and further agrees that the
Unconditional Guaranty Agreement dated February 1, 2005 executed by Guarantor
in
favor of Bank shall be modified in all respects necessary to include Assignee
(in addition to Assignor) within the definition of “Customer” as the same is
defined therein. 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 Contract.
The
undersigned have executed this Agreement as of the date and year first above
written.
[SIGNATURES
BEGIN ON THE FOLLOWING PAGE]
4
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WITNESS:
/s/
Xxxx X.
Xxxxx
Print
Name: Xxxx X.
Xxxxx
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ASSIGNOR:
ETRIALS,
INC.,
a
Delaware corporation
(formerly
known as etrials Worldwide, Inc.)
By: /s/
Xxxxx X. Xxxxx,
Xx.
Print
Name: Xxxxx X. Xxxxx, Xx.Title:
Treasurer & Chief Financial Officer
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|
|
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/s/
Xxxx X.
Xxxxx
Print
Name: Xxxx X.
Xxxxx
/s/
Xxxx X.
Xxxxx
Print
Name: Xxxx X.
Xxxxx
|
GUARANTOR:
ETRIALS
WORLDWIDE LIMITED,
a
corporation organized under the laws of the UK
By: /s/
Xxxxx X. Xxxxx,
Xx.
Print
Name: Xxxxx X. Xxxxx, Xx.
Title:
Director & Chief Financial Officer
ASSIGNEE:
ETRIALS
WORLDWIDE, INC.,
a
Delaware corporation
(formerly
known as CEA Acquisition Corporation)
By: /s/
Xxxxx X. Xxxxx,
Xx.
Print
Name: Xxxxx X. Xxxxx, Xx.
Title:
Chief Financial Officer
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BANK:
RBC
CENTURA BANK,
a
North Carolina banking corporation
By: /s/
Xxxxxx
Xxxxxxxx
Print
Name: Xxxxxx
Xxxxxxxx
Title: Account
Manager
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Attachment
1
to
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Description
of Note:
|
1.
|
Amended
and Restated Commercial Promissory Note dated May 31, 2006 in the
original
principal amount of Two Million Dollars ($2,000,000.00) from Assignor
to
Bank, or order.
|
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2.
|
Commercial
Promissory Note dated May 31, 2006 in the original principal amount
of
Five Hundred Thousand Dollars ($500,000.00) from Assignor to Bank,
or
order.
|
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3.
|
Commercial
Promissory Note dated February 1, 2005 in the original principal
amount of
Three Hundred Thousand Dollars ($300,000.00) from Assignor to Bank,
or
order.
|
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4.
|
Commercial
Promissory Note dated of even date herewith in the original principal
amount of Five Hundred Thousand Dollars ($500,000.00) from Assignor
to
Bank, or order.
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Description
of Security Documents:
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1.
|
Loan
and Security Agreement dated February 1, 2005 by and between Assignor
and
Bank, as modified pursuant to that certain Modification Agreement
dated as
of June 6, 2005, that certain Second Modification Agreement dated
as of
January 13, 2006, that certain Third Modification Agreement dated
as of
March 17, 2006, that certain Fourth Modification Agreement dated
as of
April 21, 2006, that certain Fifth Modification Agreement dated
as of May
31, 2006 and that certain Sixth Modification Agreement dated of
even date
herewith.
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2.
|
Negative
Pledge Agreement dated February 1, 2005 from Assignor in favor
of
Bank.
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Released
Collateral:
|
1.
|
None.
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Released
Parties:
|
1.
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None.
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