EXHIBIT 10.17
GUARANTY
GUARANTY
dated as of
December 23, 2006 made by the undersigned (individually, or if
more than one, collectively, the “ Guarantor ”)
in favor of JPMorgan Chase Bank, N.A., and/or any of its
subsidiaries or affiliates (individually or collectively, as the
context may require, the “ Bank ”).
PRELIMINARY
STATEMENTS : The Bank has
entered, or may from time to time enter, into agreements or
arrangements with Avistar Communications Corporation, a Delaware
corporation (the “ Borrower ”), providing for
credit extensions or financial accommodation to the Borrower of any
kind whatsoever including, without limitation, the making of loans,
advances or overdrafts, whether or not secured, discount or
purchase of notes, securities or other instruments or property,
creation of acceptances, issuance or confirmation of letters of
credit, guaranties or indemnities, entering into foreign exchange
or precious metals contracts or interest rate or currency swap or
protection agreements, entering into any other derivative
transactions under any ISDA Master Agreement or similar agreements
between the Bank and the Borrower, or any other kind of lease,
contract or agreement under which the Borrower may be indebted to
the Bank in any manner (all of the foregoing agreements or
arrangements being the “ Facilities ” and any
writing or record evidencing, supporting, securing, or delivered in
connection with a Facility, including but not limited to this
Guaranty, and including as may subsequently be renewed, extended,
amended, modified, substituted and/or replaced, being a
“ Facility Document ”).
THEREFORE
, in order to
induce the Bank to extend credit or give financial accommodation
under the Facilities, the Guarantor agrees (and if more than one,
jointly and severally agrees) as follows:
Guaranty
of Payments . For value received
and in consideration of the Facilities extended by the Bank the
Guarantor unconditionally and irrevocably guarantees to the Bank
(a) performance and observance of every agreement and condition
contained in any Facility Document to be performed or observed by
the Borrower, and (b) payment of all sums now owing or which may in
the future be owing by the Borrower under the Facilities, when the
same are due and payable, whether on demand, at stated maturity, by
acceleration or otherwise, and whether for principal, interest,
fees, expenses, indemnification or otherwise (the “
Liabilities ”). The Liabilities include, without
limitation, interest accruing after the commencement of a
proceeding under bankruptcy, insolvency or similar laws of any
jurisdiction at the rate or rates provided in the Facility
Documents.
This Guaranty
is a guaranty of payment and performance and not of collection
only. The Bank shall not be required to exhaust any right or
remedy or take any action against the Borrower or any other person
or entity or any collateral. The Guarantor agrees that, as
between the Guarantor and the Bank, the Liabilities may be declared
to be due and payable for the purposes of this Guaranty
notwithstanding any stay, injunction or other prohibition which may
prevent, delay or vitiate any declaration as regards the Borrower
and that in the event of a declaration or attempted declaration,
the Liabilities shall immediately become due and payable by the
Guarantor for the purposes of this Guaranty.
The Guarantor
shall pay the Liabilities by the seventh (7th) day on which
commercial banks are not authorized or required to close in New
York City (a “Banking Day”) after the Bank’s
demand for payment thereof (or if such demand is accompanied by
notice from the Bank, or the Bank thereafter delivers notice, that
the value of collateral securing the Liabilities is less than the
amount of the Liabilities, on the second (2 nd ) Banking Day after
delivery of such notice) (the “Due Date”). Upon
the Bank’s making demand for payment of the Liabilities but
prior to the Due Date, the Guarantor shall have the right (but not
the obligation) to execute and deliver to the Bank a note sale
agreement substantially in the form of Exhibit A hereto (the
“Loan Sale Agreement”) together with payment of the
“Note Purchase Price” (as defined therein) in
immediately available funds, whereupon the obligations of the
Guarantor hereunder shall terminate (but subject to reinstatement
as provided below).
Guaranty
Absolute . The Guarantor
guarantees that the Liabilities shall be performed and paid
strictly in accordance with the terms of the Facilities. The
liability of the Guarantor under this Guaranty is absolute and
unconditional irrespective of: (a) any change in the amount,
time, manner or place
of payment of, or in any other term
of, all or any of the Facility Documents or Liabilities, or any
other amendment or waiver of or any consent to departure from any
of the terms of any Facility Document or Liability; (b) any release
or amendment or waiver of, or consent to departure from, any other
guaranty or support document, or any exchange, release or
non-perfection of any collateral, for all or any of the Facility
Documents or Liabilities; (c) any present or future law, regulation
or order of any jurisdiction (whether of right or in fact) or of
any agency thereof purporting to reduce, amend, restructure or
otherwise affect any term of any Facility Document or Liability;
(d) without being limited by the foregoing, any lack of validity or
enforceability of any Facility Document or Liability; and (e) any
other defense, setoff or counterclaim whatsoever (in any case,
whether based on contract, tort or any other theory) with respect
to the Facility Documents or the transactions contemplated thereby
which might constitute a legal or equitable defense available to,
or discharge of, the Borrower or a guarantor.
Guaranty
Irrevocable . This Guaranty is a
continuing guaranty of all Liabilities now or hereafter existing
under the Facilities and shall remain in full force and effect
until payment in full of all Liabilities and other amounts payable
under this Guaranty and until the Facilities are no longer in
effect or, if earlier, when the Guarantor has given the Bank
written notice that this Guaranty has been revoked; provided
that any notice under this Section shall not release the Guarantor
from any Liability, absolute or contingent, existing prior to such
notice. Such notice shall be effective only after the
Bank’s actual receipt of the notice at its address set forth
below, and the Bank shall have had a reasonable time to act upon
such notice at each of its offices or departments responsible for
the Facilities.
Reinstatement
. This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time (i) any payment of any of the
Liabilities is rescinded or must otherwise be returned by the Bank
on the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though the payment had not been made or
(ii) the Loan Sale Agreement shall be held invalid or
unenforceable in whole or in any part..
Subrogation
. The
Guarantor shall not exercise any rights against the Borrower which
it may acquire by way of subrogation, by any payment made under
this Guaranty or otherwise, until all the Liabilities have been
paid in full and the Facilities are no longer in effect. If
any amount is paid to the Guarantor on account of subrogation
rights under this Guaranty at any time when all the Liabilities
have not been paid in full, the amount shall be held in trust for
the benefit of the Bank and shall be promptly paid to the Bank to
be credited and applied to the Liabilities, whether matured or
unmatured or absolute or contingent, in accordance with the terms
of the Facilities.
Subordination
. Without
limiting the Bank’s rights under any other agreement, any
liabilities owed by the Borrower to the Guarantor in connection
with any extension of credit or financial accommodation by the
Guarantor to or for the account of the Borrower, including but not
limited to interest accruing at the agreed contract rate after the
commencement of a bankruptcy or similar proceeding, are hereby
subordinated to the Liabilities, and such liabilities of the
Borrower to the Guarantor, if the Bank so requests, shall be
collected, enforced and received by the Guarantor as trustee for
the Bank and shall be paid over to the Bank on account of the
Liabilities but without reducing or affecting in any manner the
liability of the Guarantor under the other provisions of this
Guaranty.
Representations and
Warranties . T