etrials_10k-ex1028.htm


    Exhibit 10.28

     

    
      Customer
No.                                       

      Loan
No.                                       

       

      
        	
                RBC
      Bank

              	
                Second

                Amended
      and Restated

                Commercial
      Promissory Note

                (SD-L&S)

              


      

       

       

      
        	
                $2,500,000.00

              	
                Raleigh,
      North Carolina

                May
      31, 2008

              


      

      MASTER
NOTE

       

      FOR
VALUE RECEIVED, the undersigned (whether one or more, "Borrower") promises to
pay to RBC BANK (USA) (formerly known as RBC Centura Bank) ("Bank"), or order,
the sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00), or so much
thereof as shall have been disbursed from time to time and remains unpaid,
together with interest at the rate and payable in the manner hereinafter stated.
Principal and interest shall be payable at any banking office of Bank in the
city or town indicated above, or such other place as the holder of this Note may
designate.

       

      THIS
IS AN AMENDED AND RESTATED COMMERCIAL PROMISSORY NOTE and amends and replaces in
all respects and in its entirety that certain Amended and Restated Commercial
Promissory Note dated May 31, 2006 in the original amount of up to Two Million
Dollars ($2,000,000.00) from Borrower to the order of Bank, as modified by that
certain Fifth Modification Agreement dated May 31, 2006, that certain Sixth
Modification Agreement dated May 31, 2007 and that certain Assignment and
Assumption Agreement dated May 31, 2007 (collectively, the "Original Note").
This Second Amended and Restated Commercial Promissory Note does not constitute
a novation of Borrower's obligation under the Original Note, but an amendment,
restatement and increase in the principal amount of such
obligation.

       

      Article
I. Interest Rate.

       

      Section
1.1. Rate of Accrual. Interest will
accrue on the unpaid principal balance at the rate set forth in Section 1.2.1.
until maturity of this Note, whether such maturity occurs by acceleration or on
the Maturity Date; and, at Bank's option, interest at the foregoing rate will
accrue on any unpaid interest before such maturity. Interest will accrue on any
unpaid balance owing under this Note, whether principal, interest, fees,
premiums, charges or costs and expenses, after maturity at the rate set forth in
Section 1.2.2. All accrual rates of interest under this Note will be contract
rates of interest, whether a pre-default rate or a default rate, and references
to contract rates in any loan documents executed and delivered by Borrower or
others to Bank in connection with this Note shall be to such contract
rates.

       

      Section 1.2.
Interest
Rates.

       

      1.2.1.
Pre-Default
Rate.  Subject to the provisions of Section 1.2.2. below, interest
payable on this Note per annum will accrue at 0.25% plus the RBC Bank Prime
Rate. The "RBC Bank Prime Rate" is one of Bank's variable rate base indices for
credit extensions and is set by Bank at its discretion based on Bank's
perception of market interest rate levels, trends and general economic
conditions. It is not tied to any specific index published by any other person
and is not represented by Bank to be the lowest rate at which Bank extends
credit.

       

      1.2.2.
Default
Rate.  Upon the nonpayment of any payment of interest described
herein, Bank, at its option and without accelerating this Note, may accrue
interest on such unpaid interest at a rate per annum ("Default Rate") equal to
the lesser of the maximum contract rate of interest that may be charged to and
collected from Borrower on the loan evidenced by this Note under applicable law
or three percent (3.0%) plus the pre-default interest rate otherwise applicable
hereunder, as set forth in Section 1.2.1.. After maturity of this Note, whether
by acceleration or otherwise, interest will accrue on the unpaid principal of
this Note, any accrued but unpaid interest and all fees, premiums, charges and
costs and expenses owing hereunder at the Default Rate until
this Note is paid in full, whether this Note is paid in full pre-judgement or
post-judgement.

       


      
        
           


        

        
          
          

          
            
 

        

        
           


        

      


       

      1.2.3.
Variable
Rate:  Calculation of Interest.

       

      1.2.3.1.
Variable
Rate.  This is a variable rate note. Any change in
the rate of interest payable under this Note will equal the change in the
variable rate index to which such rate is tied, but the rate at which interest
accrues under this Note shall never exceed the maximum contract rate which may
be charged to and collected from Borrower on the loan evidenced by this Note
under applicable law. Bank shall have no obligation to notify Borrower of
adjustments in the rate of interest payable under this Note. Adjustments to the
rate of interest will be effective on the date of change in the variable rate
index.

       

      1.2.3.2.
Calculation
of Interest.  All interest payable under this Note shall be
calculated monthly and accrue daily on the basis of the actual number of days
elapsed and a year of three hundred sixty (360) days. In computing the number of
days during which interest accrues, the day on which funds are initially
advanced shall be included regardless of the time of day such advance is made,
and the day on which funds are repaid shall be included unless repayment is
credited prior to close of business. Payments in federal funds, immediately
available in the place designated for payment, received by Bank prior to 2:00
p.m. local time at said place of payment, shall be credited as if received prior
to close of business on the day the funds are immediately available; while other
payments, at the option of Bank, may not be credited until such payments are
immediately available to Bank, in federal funds, in the place designated for
payment, prior to 2:00 p.m. local time at said place of payment on a day on
which Bank is open for business.

       

      Article
II. Payment Terms.

       

      Section
2.1. Interest
Payment Terms.  Payments under this Note include an interest
component and a principal component. The principal component is set forth in
Section
2.2 below. The interest component shall be paid as follows: interest
shall be payable monthly, in arrears, beginning June 10, 2008 and continuing on
the same calendar day of each consecutive month thereafter until the Maturity
Date, when all accrued but unpaid interest is due and payable in
full.

       

      Section
2.2. Principal
Payment terms:. Maturity Date.  As stated in Section 2.1 above,
payments under this Note include an interest component and a principal
component. The interest component is set forth in Section 2.1 above. The
principal component shall be paid as follows: principal shall be payable in one
single payment on May 31, 2009 (herein referred to as the "Maturity
Date").

       

      Section
2.3. Prepayment. 
This Note may be prepaid in whole, or in part, at any time without premium or
penalty.

       

      Section
2.4. Application
of Payments.  All payments made on this Note shall be applied first
to payment of all late fees, charges, premiums and costs and expenses due but
unpaid under this Note, then to accrued but unpaid interest and finally to
principal, in the inverse order of the payment dates therefor, unless Bank
determines in its sole discretion to apply
payments in a different order or applicable law requires a different application
of payments. The partial prepayment of this Note, if permitted, shall not
result in a payment holiday or any other deferral of any regularly scheduled
payments under this Note, all of which shall be made as and when the same are
scheduled to be paid.

       

      Article
III. Loan Agreement and Security.

       

      Section
3.1. Loan Agreement. The loan
evidenced by this Note was made pursuant to a commitment letter ("Commitment
Letter") from Bank to Borrower dated December 21, 2004. Borrower and Bank have
entered into that certain Loan and Security Agreement dated February 1, 2005. as
modified by that certain Modification Agreement dated June 6, 2005, that certain
Second Modification Agreement dated January 13, 2006, that certain Third
Modification Agreement dated March 17, 2006, that certain Fourth Modification
Agreement dated April 21, 2006, that certain Fifth Modification Agreement dated
May 31, 2006, that certain Sixth Modification Agreement dated May 31, 2007, that
certain Assignment and Assumption Agreement dated May 31, 2007 and that certain
Seventh Modification Agreement dated of even date herewith (collectively, the
"Loan and Security Agreement"). Borrower shall perform and abide by, as and when
so required, each and all of the covenants, terms and conditions imposed upon or
applicable to Borrower in the Commitment Letter, the Loan and Security Agreement
and all security documents and other agreements referenced in the Loan and
Security Agreement.


      
        
           


        

        
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      Section
3.2.  Security
Documents.  This Note is secured by (1) the Loan and Security
Agreement, (2) the security documents and other supporting obligations
identified in the Loan and Security Agreement, (3) the security documents and
other supporting obligations which reference that they secure this Note or the
Loan and Security Agreement, (4) any security documents and other supporting
obligations which reference that they secure all indebtedness or other
obligations owing from time to time by Borrower to Bank, and (5) any security
documents and other supporting obligations which reference that they secure all
indebtedness from time to time owing from Borrower to Bank other than consumer
credit as defined under the Federal Reserve Board's Regulation Z
(Truth-in­-Lending) (12 CFR 226 et seq.) ("security
documents").

       

      Article
IV. Default and Acceleration.

       

      Section
4.L Late
Charges and Expenses.  Borrower agrees to pay, upon demand by Bank
or if demand is not sooner made, on maturity of this Note, whether such maturity
occurs by acceleration or on the Maturity Date; for each payment past due for
fifteen (15) or more calendar days, a late charge in an amount equal to the
lesser of (I) four percent (4%) of the amount of the payment past due or (2) the
maximum percentage of the payment past due permitted by applicable law, or the
maximum amount if not expressed as a percentage. If this Note is not paid in
full whenever it becomes due and payable, Borrower agrees to pay all costs and
expenses of collection, including reasonable attorneys' fees. The Borrower
hereby stipulates that reasonable attorneys' fees shall be fifteen percent (15%)
of the outstanding balance (principal, interest, fees, premiums, charges and
costs and expenses) owing under this Note 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 the Bank.

       

      Section
4.2. Default. 
Any one or more of the following shall constitute an event of default ("Event of
Default") under this Note: (1) the failure of Borrower to make when due any
payment described herein, whether of principal, interest or otherwise; (2) the
failure of Borrower to perform any of the other terms and conditions of this
Note or any of the terms and conditions of the Loan and Security Agreement or
the other security documents executed and delivered by Borrower to Bank, or to
another person for Bank's benefit, as and when the same are required to be so
performed, or the occurrence of some other default by Borrower under this Note,
the Loan and Security Agreement or any of the other security documents; (3) the
failure of any other person obligated for the payment of this Note, either
directly or indirectly, or obligated under the Loan and Security Agreement or
any of the other security documents to perform any of the terms and conditions
imposed upon such other person by any of said agreements or documents, as and
when the same are required to be so performed, or the occurrence of some other
default by such other person under any of said agreements or security documents;
(4) the application for the appointment of a receiver for Borrower or the filing
of a petition under any provisions of the United States Bankruptcy Code or other
state or federal insolvency proceeding by or against Borrower or any assignment
for the benefit of creditors by or against Borrower; (5) if Borrower is an
individual, Borrower's death, physical disability or mental incompetency, and if
Borrower is not an individual, the dissolution, termination of existence, merger
or change in control of or in Borrower; (6) the failure of Borrower to
furnish from time to time, at Bank's request, financial information with respect
to Borrower; (7) the occurrence, in Bank's opinion, of a material adverse change
in Borrower's business or financial condition, or if, in Bank's opinion, there
is an impairment of the prospect of repayment of any portion of this Note or an
impairment of the value or priority of Bank's security interests in any
collateral securing repayment of this Note; (8) the failure of Borrower to
perform or other default by Borrower under any other now existing or hereafter
arising monetary or non-monetary obligation due, owing or otherwise required to
be performed or observed by Borrower to or in favor of Bank, or if Borrower is
not an individual, default by any subsidiary of Borrower under any indebtedness
or other obligation now or hereafter owing by such subsidiary to Bank; or (9)
the termination of any guaranty agreement or other supporting obligation
(inclusive of letters of credit) which applies to this Note or any other
security document which applies to this Note.

       

      Section
4.3. Acceleration. 
Upon the occurrence of an Event of Default, 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 under this Note, (I) the entire  unpaid principal balance of
this Note, together with all other amounts owing and all other amounts to be
owing under this Note, shall, at the option of Bank, become immediately due and
payable, without notice or demand, and (2) the Bank may, both before and after
acceleration, exercise any of and all of its other rights and remedies under
this Note and the other loan documents, as well as any additional rights and
remedies it may have at law and it may have in equity, to recover full payment
of the balance (principal, interest, fees, premiums, charges and costs and
expenses) owing under this Note. The failure by Bank to exercise any of its
options shall not constitute a waiver of the right to exercise same in the event
of any subsequent default.


      
        
           


        

        
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      Article
V. Miscellaneous.

       

      Section
5.1. Use
and Application of Terms.  To the end of achieving the full
realization by Bank of its rights and remedies under this Note, including
payment in full of the loan evidenced hereby, in using and applying the various
terms, provisions and conditions in this Note, the following shall apply: (I)
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 legal entities,
including public and quasi-public bodies, as well as individuals; (3) the term
"Note" refers to this Second Amended and Restated Commercial Promissory Note,
the term "loan document" refers to this Note, the Commitment Letter, the Loan
and Security Agreement and any security documents and other documents and
agreements executed and delivered to Bank or others on Bank's behalf in
connection with this Note, and the term "Borrower" refers to all signatories of
this Note collectively and severally, as the context of this Note requires, and
all signatories of this Note shall be and the same are jointly and severally
liable hereunder; (4) 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; (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
Borrower, or by one or more subsidiaries of Borrower, or Borrower and one or
more subsidiaries of Borrower, or (ii) otherwise controlled by or within the
control of Borrower or any subsidiary; (6) the Commitment Letter and the other
loan documents shall be applied and construed in harmony with each other to the
end that Bank is ensured repayment of the loan evidenced by this Note in
accordance with the terms of this Note and such other loan documents, and this
Note and the other loan documents shall not be applied, interpreted and
construed more strictly against a person because that person or that person's
attorney drafted this Note or any of the other loan documents; (7) Bank does not
intend to and shall not reserve, charge or collect interest, fees or charges
hereunder in excess of the maximum rates or amounts permitted by applicable law
and if any interest, fees or charges are reserved, charged or collected in
excess of the maximum rates or 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; and (8) wherever possible each provision of this
Note shall be interpreted and applied in such manner as to be effective and
valid under applicable law, but if any provision of this Note 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 or the remaining provisions of this Note, or the application
thereof shall be in a manner and to an extent permissible under applicable
law.

       

      Section 5.2. Documentary and Intangibles Taxes.  To the
extent not prohibited by law and notwithstanding who is liable for payment of
the taxes and fees, Borrower 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 the loan evidenced
by this Note, or any extension, renewal or modification of such loan, or
assessed, charged or required to be paid in connection with any of the loan
documents.

       

      Section
5.3.   Maintenance of
Records by Bank.  Bank is authorized to maintain, store and
otherwise retain the loan documents 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
5.4. Right of Setoff:Recoupment.
Upon the occurrence of an Event of Default, 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 under this Note, Bank is authorized and empowered to apply to the
payment hereof, any and all money deposited in Bank in the name of or to the
credit of Borrower, without advance notice, and is authorized to offset any
obligation of Bank to Borrower to the payment hereof and is authorized to
exercise its rights of recoupment relative to Borrower.

       


      
        
           


        

        
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      Section
5.5. Waiver. 
Borrower waives presentment, demand, protest and notice of dishonor, waives any
rights which it may have to require Bank to proceed against any other person or
property, agrees that without notice to any person and without affecting any
person's liability under this Note, Bank, at any time or times, may grant
extensions of the time for payment or other indulgences to any person or permit
the renewal, amendment or modification of this Note or any other agreement
executed and delivered by any person in connection with this Note, or permit the
substitution, exchange or release of any security for this Note and may add or
release any person primarily or secondarily liable, and agrees that Bank may
apply all moneys made available to it from any part of the proceeds from the
disposition of any security for this Note either to this Note or to any other
obligation of Borrower to Bank, as Bank may elect from time to time. No act or
inaction of Bank under this Note shall be deemed to constitute or establish a
"course of performance or dealing" that would require Bank to so act or refrain
from acting in any particular manner at a later time under similar or dissimilar
circumstances.

       

      Section 5.6.
Jury
and Jurisdiction.  This Note
shall be deemed to have been executed and delivered in North Carolina
regardless of where the signatories may be located at the time of execution and
shall be governed by and construed in
accordance with the substantive laws of the State of North Carolina, excluding,
however, the conflict of law and choice of law provisions thereof. Borrower,
to the extent permitted by law, waives any right to a trial
by jury in any action arising from or related to this
Note.

       

      Section
5.7. Successors and Assign. This
Note shall apply to and bind Borrower's and Bank's heirs, personal
representatives, successors and assigns. All references in this Note to Bank
shall include the holder hereof and this Note shall inure to the benefit of any
holder, its successors and assigns; and, Borrower waives and will not assert
against any transferee or assignee of this Note any claims, defenses, set-offs
or rights of recoupment which Borrower could assert against Bank, except
defenses which Borrower cannot waive. Borrower acknowledges that Customer
Numbers and Loan Numbers may be added to this Note after execution and delivery
of this Note by Borrower and if there is a section denoted "BANK USE ONLY", the
information under such section may also be completed by Bank after execution and
delivery of this Note. In addition, in the event the date of this Note is
omitted, Borrower consents to Bank inserting the date.

       

      Section
5.8. Master
Note.  If this Note is designated herein as a MASTER NOTE or is
denoted on Bank's records as a MASTER NOTE, then this Note evidences a line of
credit and Borrower shall be liable for only so much of the principal amount as
shall be equal to the total of the amounts advanced to or for Borrower by Bank
from time to time, less all payments made by or for Borrower and applied by Bank
to principal, and for interest on each such advance, fees, premiums, charges and
costs and expenses incurred or due hereunder, all as shown on Bank's books and
records which shall be conclusive evidence of the amount owed by Borrower under
this Note, absent a clear and convincing showing of bad faith or manifest error.
If this is a MASTER NOTE, upon the occurrence of an Event of Default 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 under this Note in addition to its other
rights and remedies, Bank may terminate or suspend Borrower's right to receive
any future or additional advances under this Note and the other loan
documents.

       

       

       

       

      (Signatures
Begin on the Next Page)

       


      
        
           


        

        
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      The
undersigned has executed this Note as of the day and year first above
stated.

       

      
        	
                BORROWER:

                 

              	
                WITNESS:

              
	
                ETRIALS,
      INC.,

                a
      Delaware corporation

                (formerly
      known as etrials Worldwide, Inc.)

                 

              	 
      
	
                By:  /s/ Joseph F. Trapanier,
      III               
      

                Print
      Name: Joseph F. Trapanier, III

                Title:  CFO

                 

              	
                /s/
      Kimberly L.
      Parker                                  
      

                Print
      Name:  Kimberly L. Parker

              
	
                ETRIALS,
      INC.,

                a
      Delaware corporation

                (formerly
      known as CEA Acquisition Corporation)

                 

              	 
      
	
                By:  /s/ Joseph F. Trapanier,
      III            
      

                Print
      Name: Joseph F. Trapanier, III

                Title:  CFO

                 

              	
                /s/
      Kimberly L.
      Parker                        
                

                Print
      Name:  Kimberly L. Parker

              
	 
      	 
      	 
      	 
      	 
      	 
      	 
      


      

       

       

       

       

       

       

       

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