Attached files
EXHIBIT
10.44
NOTE SALE
AGREEMENT
Note Sale
Agreement dated as __________ ___, _____ (this “Agreement”) by and between
JPMorgan Chase Bank, N.A. (the “Seller”) and [Gerald J.
Burnett] [and] [Gerald J. Burnett and Marjorie J. Burnett as trustees
of The Gerald J. Burnett and Marjorie J. Burnett Revocable Trust] (individually,
or if more than one, collectively, the “Buyer”).
The Seller is the holder of the Second
Amended and Restated Revolving Credit Promissory Note (Libor/Prime) dated as of
December 22, 2009 executed and delivered by Avistar Communications Corporation,
a Delaware corporation (the “Borrower”), to the Seller (as
from time to time may be amended, restated or otherwise modified, the “Note”).
The
Seller and the Borrower are parties to a Third Amended and Restated Security
Agreement dated as of December 22, 2009 by which the Borrower, among other
things, granted the Seller security interests in the “Collateral” (as defined
therein) to secure the Borrower’s obligations under the Note (as from time to
time may be amended, restated or otherwise modified, the “Security
Agreement”).
To induce
the Seller to accept the Note, the Buyer [and [Gerald J. Burnett] [Gerald J.
Burnett and Marjorie J. Burnett as trustees of The Gerald J. Burnett and
Marjorie J. Burnett Revocable Trust] delivered to the Seller that certain Second
Amended and Restated Guaranty dated as of December 22, 2009, (as from
time to time may be amended, restated or otherwise modified, the “Guaranty”), thereby
guarantying payment and performance of the Note (reference is made to the
Guaranty for a complete statement of its terms and conditions).
The Seller has made a demand for
payment under the Guaranty, and the Buyer has elected to purchase the Loan by
executing and delivering to the Seller this Agreement on or before the Due Date
(the “Offer”).
NOW THEREFORE, the Buyer (and if more
than one, jointly and severally) and the Seller agree as follows:
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1.
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Definitions: The
following terms shall be defined as
follows:
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1.1
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“Banking Day” means
any day on
which commercial banks are not authorized or required to close in New York
City.
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1.2
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“Closing” means the
simultaneous delivery by the Seller and the Buyer of documents and funds,
and the performance of the acts herein provided to be performed at the
Closing.
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1.3
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“Closing Date” means the
first (1st)
Banking Day after the Seller’s receipt of the Offer, unless the Seller, in
its discretion, deems it necessary to extend such
time.
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1.4
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“Due Date” has the
meaning given such term in the
Guaranty.
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1.5
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“Facility Documents” has
the meaning given such term in the
Note.
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1.6
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“Loan” means the Note
and the Security Agreement and the Seller’s rights
thereunder.
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1.7
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“Note Purchase Price”
means the principal amount outstanding under the Note as of the Closing
Date, together with any interest thereon, and any costs and expenses under
any Facility Document, all as calculated by the
Seller.
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2.
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Terms
and Conditions of Sale: The Seller
agrees to sell, assign, transfer, and convey to the Buyer, on the terms
and conditions set forth in this Agreement, all the right, title, and
interest of the
Seller, as of the Closing Date, in and to the Loan. The Buyer
acknowledges and agrees (a) that the Seller’s sale of the Loan to the
Buyer is irrevocable and (b) that the Buyer shall have no recourse to the
Seller.
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3.
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Note
Purchase Price: The Buyer shall pay to
the Seller, by 2:00 p.m. (New York City time), by cashier's check or wire
transfer, the amount of the Note Purchase Price. All payments
of the Note received by the Seller before the Closing Date shall belong to
the Seller. All payments of the Note received by the Seller on
or after the Closing Date shall belong to the Buyer. In the
event that a draft the Seller has received in payment of the Note is
dishonored after the Closing Date, an adjustment to the Note Purchase
Price in the Seller's favor shall be made upon notification by the Seller
to the Buyer that the check has been dishonored, and the Buyer shall
promptly forward that amount to the
Seller.
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4.
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Place
of Closing: The Closing
shall be held at the Seller's offices located at 270 Park Avenue, New
York, New York, or such other place as may be practicable. The
Closing shall, at the Seller's option, be either by telephone, confirmed
by letter or wire, or conducted in person at the place designated by the
Seller.
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5.
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Endorsement
and Delivery: The Seller
agrees to endorse the Note, and deliver the endorsed Note to the Buyer, as
soon as practicable after the Closing Date. The endorsement
will be in the following form:
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For value
received, pay to the order of [Gerald J. Burnett]
[and] [Gerald J. Burnett and Marjorie J. Burnett as trustees of The
Gerald J. Burnett and Marjorie J. Burnett Revocable Trust] without
recourse and without any representation or warranty either express or implied in
fact or by law.
| JPMORGAN CHASE BANK, N.A. | ||||
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/s/
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Name
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Title
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After the
Closing, the Seller agrees to execute and deliver to the Buyer any
such documents or instruments reasonably requested by Buyer to transfer to
Buyer all right,
title and interest of Seller in and to the Loan, provided that (i) the Buyer
prepares such documents or instruments at its expense and (ii) the Buyer
provides such documents or instruments to the Seller within thirty (30) days
after the Closing
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6.
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Representations,
Warranties and Agreements of the Buyer: The Buyer
represents, warrants and agrees as
follows:
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6.1
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The
Buyer will not violate any laws relating to unfair credit collection
practices in connection with the Loan. The Buyer will indemnify
the Seller and hold the Seller harmless from and against any and all
claims, demands, losses, damages, penalties, fines, forfeitures,
judgments, legal fees and any other costs, fees, and expenses heretofore
or hereafter incurred by the Seller as a result of (i) a breach by the
Buyer of the aforesaid agreement or (ii) any claim, demand or assertion
that the Buyer or the Seller was in any way involved in or had in any way
authorized any unlawful collection practices in connection with the Loan
or (iii) any claim, demand or assertion by the Borrower in connection with
the Loan. The Buyer agrees to notify the Seller within three
(3) Banking Days of notice or knowledge of any such claim or
demand.
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6.2
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The
Buyer will not institute any legal action in the name of the Seller or
continue to prosecute in the name of the Seller any pending legal action
nor shall the Buyer intentionally
or unintentionally, through misrepresentation or nondisclosure, mislead or
conceal that the Buyer’s ownership of the Loan following the
Closing. The Buyer acknowledges that there is no adequate
remedy at law for violation of this subparagraph and consents to the entry
of an order by a court of competent jurisdiction enjoining any violation
or threatened violation of the provisions of this
subparagraph. The Buyer will indemnify the Seller and hold the
Seller harmless from and against any and all claims, demands, losses,
damages, judgments, legal fees and any other costs, fees and expenses
heretofore or hereafter incurred by the Seller as a result of a breach by
the Buyer of the aforesaid
agreement.
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6.3
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The
Buyer’s decision to purchase the Loan is based upon the Buyer's own
independent evaluation. The Buyer has made such independent
investigation as the Buyer deems to be warranted into the nature,
validity, enforceability, collectibility, and value of the Loan and all
other facts it deems material to its purchase, and is entering into this
transaction herein provided for, solely on the basis of that investigation
and the Buyer's own judgment, and is not acting in reliance on any
representation of, or information furnished by the Seller and acknowledges
that no employee or representative of the Seller has been authorized to
make any statements or representations other than those specifically
contained in this Agreement. The Buyer hereby waives any right
or cause of action it might now or in the future have against the Seller
as a result of its purchase of the
Loan.
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6.4
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The
Buyer (i) is able to bear the economic risk associated with the purchase
of the Loan, (ii) has adequate information concerning the business and
financial condition of the Borrower or any third party to make an informed
decision regarding the purchase of the Loan, (iii) has such knowledge and
experience so as to be aware of the risks and uncertainties inherent in
the purchase of rights and assumption of liabilities of the type
contemplated in this Agreement and (iv) has independently and without
reliance upon the Seller, and based on such information as the Buyer has
deemed appropriate, made its own analysis and decision to enter into this
Agreement. The Buyer acknowledges that the Seller has not given
the Buyer any investment advice, credit information or opinion on whether
the purchase of the Loan is
prudent.
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6.5
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The
Buyer has full power and authority to execute, deliver and perform its
obligations under, this Agreement and is authorized to enter into this
Agreement. All laws, rules and regulations to which the Buyer
may be subject have been duly complied with. This Agreement has
been duly and validly executed and delivered by the Buyer and constitutes
the legal, valid, and binding obligation of the Buyer, enforceable against
the Buyer in accordance with its terms, except that such enforceability
may be limited by bankruptcy, insolvency, or other similar laws of general
applicability affecting the enforcement of creditors’ rights generally and
by the court’s discretion in relation to equitable
remedies.
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6.6
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The
Buyer is an “accredited investor” as that term is defined by the
Securities Act of 1933, as amended. The Buyer has such
knowledge and experience in financial and business matters, relating to
the ownership and collection of loan assets, that it is capable of
evaluating the merits and risks of a prospective investment in the
Loan. The Buyer acknowledges that the Loan may have limited or
no liquidity and it has the financial capability to hold the Loan for an
indefinite period of time and to bear the economic risks of, including a
complete loss of its investment in, the purchase and acquisition of the
Loan.
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7.
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No
Recourse or Warranty, Etc.: The sale of
the Loan is made by the Seller without any representation or warranty
either express or implied in fact or by law. Any other
provisions of this Agreement to the contrary notwithstanding, the Seller
and the Buyer agree that no guarantee of any kind or type whatsoever,
whether made by public, private or governmental entity, is purchased,
acquired, assumed, or in any other manner transferred or conveyed to the
Buyer pursuant to this Agreement. Further,
the Seller has not, does not and will not make any representations or
warranties with regard to compliance with any, rules, regulations, orders
or requirements. The Buyer acknowledges and agrees that the
sale and assignment of the Loan is made without recourse or
warranty. The Seller makes no warranties, covenants or
representation of any sort or in any manner with regard to the Loan,
except that the Seller is the owner and holder of all rights in the Loan
to be sold and assigned and is authorized to consummate such sale by
virtue of such rights and
capacity.
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8.
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Files
and Records:
The Buyer further agrees as
follows:
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8.1
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The
Buyer agrees to abide by all applicable state and federal laws, rules and
regulations regarding the handling and maintenance of all documents and
records relating to the Loan purchased hereunder including, but not
limited to, the length of time such documents and records are to be
retained.
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8.2
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After
transfer of documents or files to the Buyer pursuant to the terms of this
Agreement, the Buyer agrees that the Seller shall have the continuing
right to use, inspect, and make extracts from or copies of any such
documents or records, upon the Seller's reasonable notice to the
Buyer.
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8.3
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The
Buyer further agrees to allow the Seller the possession, custody and use
of original documents for any lawful purpose and upon reasonable terms and
conditions.
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8.4
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Before
destruction or disposition of any documents or files transferred
hereunder, the Buyer agrees to give reasonable notice to the Seller and to
allow the Seller, at its own expense, to recover the same from the
Buyer.
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9.
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Notice
Of Claim: The Buyer shall
immediately notify the Seller of any claim, threatened claim, or any
litigation against the Seller which may come to its
attention.
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10.
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Notices: Unless
otherwise agreed in writing, notices shall be given to the Seller and the
Buyer at their telecopier numbers (confirmed by telephone to their
telephone numbers) or addresses set forth in the signature page of this
Agreement, or such other telecopier (and telephone) number or address
communicated in writing by either such party to the
other. Notices to the Bank shall be effective upon
receipt.
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11.
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Use
of the Seller Name: The Buyer
agrees that it will not use or permit the use by its agents,
successors or assigns, of any name or combination of letters which is
similar to “JPMorgan Chase Bank, N.A.”, “Chase” or
"JPMCB." The Buyer will not represent or imply that it is
affiliated with, authorized by, or in any way related to the
Seller.
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12.
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Severability: Each part
of this Agreement is intended to be severable. If any term,
covenant, condition or provision hereof is unlawful, invalid, or
unenforceable for any reason whatsoever, such illegality, invalidity, or
unenforceability shall not affect the legality, validity, or
enforceability of the remaining parts of this Agreement, and all such
remaining parts hereof shall be valid and enforceable and have full force
and effect as if the invalid or unenforceable part had not been
included.
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13.
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Construction: Unless the context
otherwise requires, singular nouns and pronouns, when used herein, shall
be deemed to include the plural and vice versa, and impersonal pronouns
shall be deemed to include the personal pronoun of the appropriate
gender.
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14.
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Assignment: This
Agreement and the terms, covenants, conditions, provision, obligation,
undertaking, rights and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned parties and their respective
heirs, executors, administrators, representatives successors,
and assigns. This Agreement shall not be assigned without the
Seller's prior written
consent.
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15.
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Prior
Understandings: This
Agreement supersedes any and all prior discussions and agreements between
the Seller and the Buyer with respect to the purchase of the Loan and
other matters contained herein, and this Agreement contains the sole and
entire understanding between the parties hereto with respect to the
transactions contemplated herein.
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16.
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Survival: Each and every covenant
made by the Buyer or the Seller in this Agreement shall survive the
Closing and shall not merge into the closing documents, but instead shall
be independently enforceable.
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17.
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Governing
Law; Jurisdiction: This
Agreement shall be governed by and construed in accordance with the laws
of the State of New York. The Buyer consents to the
nonexclusive jurisdiction and venue of the state or federal courts located
in such state. In the event of a dispute hereunder, suit may be
brought against the Buyer in such courts or in any jurisdiction where the
Buyer or any of its assets may be located. Service of process
by the Seller in connection with any dispute shall be binding on the Buyer
if sent to the Buyer by registered mail at the address(es) specified above
or to such further address(es) as the Buyer may specify to the Seller in
writing.
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18.
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Counterparts: This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Seller
and the Buyer have executed this Agreement by their duly authorized officers as
of the date first set forth above.
| JPMORGAN CHASE BANK, N.A. | ||||
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/s/
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Name
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Title
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Address
for Notices to the Bank:
JPMorgan
Chase Bank, N.A.
Private
Bank Credit
Attn: Arn Welles
345 Park
Avenue, Floor 04
New York,
NY 10154-0004
Telecopier: (212)
464-2531
Telephone: (212)
464-1883
With a
courtesy copy to
JPMorgan
Chase Bank, N.A.
Attn: Nancy
A. Sheppard
560
Mission Street, 19th
floor
San
Francisco, CA 94105
Telecopier: (415)
315-8272
Telephone: (415)
315-8285
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/s/ Gerald
J.
Burnett
Gerald
J. Burnett
Address
for notices:
202
Camino Al Lago
Atherton,
CA 94027
Telecopier: (650)
322-2060
Telephone: (650)
322-2060
Gerald
J. Burnett and Marjorie J. Burnett , as Trustee for
The
Gerald J. Burnett and Marjorie J. Burnett Revocable Trust
By: /s/ Gerald
J.
Burnett
Gerald J. Burnett
By: /s/ Marjorie
J.
Burnett
Marjorie J. Burnett
Address
for notices:
c/o
Gerald J. Burnett
202
Camino Al Lago
Atherton,
CA 94027
Telecopier: (650)
322-2060
Telephone: (650)
322-2060
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State
of _________
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County
of ________
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On the ____ day of ____________ in the
year _____, before me, the undersigned, personally appeared Gerald J. Burnett,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her capacity, and that
by his/her signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
____________________________________
Notary Public
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State
of _________
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County
of ________
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On the ____ day of ____________ in the
year _____, before me, the undersigned, personally appeared Marjorie J. Burnett,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her
capacity,
and that by his/her signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.
____________________________________
Notary
Public