EXHIBIT 10.18
FORM OF 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
Revolving Credit Promissory Note (Libor/Prime) dated as of
December 23, 2006 executed and delivered by Avistar
Communications Corporation, a Delaware corporation (the “
Borrower ”), to the Seller (as from time to time may
be amended, modified or replaced, the “ Note
”).
The Seller and the Borrower are
parties to a Security Agreement dated as of December 23, 2006
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, modified or replaced, 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] (the together with the Buyer
the “ Guarantors ”)] delivered to the Seller its
Guaranty dated as of December 23, 2006, (the “
Guaranty ”) in which the [Buyer] [Guarantors]
guaranteed 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:
1.
Definitions
: The following terms shall be defined as
follows:
1.1
“Banking
Day” means any day
on which commercial banks are not authorized or required to close
in New York City.
1.2
“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.
1.3
“Closing
Date” means the
first (1 st
) Banking Day after the
Seller’s receipt of the Offer, unless the Seller, in its
discretion, deems it necessary to extend such time.
1.4
“ Due Date ” has
the meaning given such term in the Guaranty.
1.5
“Facility
Documents” has the
meaning given such term in the Note.
1.6
“Loan”
means the Note and the Security
Agreement and the Seller’s rights thereunder.
1.7
“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.
2.
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.
3.
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.
4.
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.
5.
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:
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.
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JPMORGAN CHASE BANK, N.A.
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By:
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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
6.
Representations, Warranties
and Agreements of the Buyer : The Buyer represents, warrants and agrees
as follows:
6.1
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.
6.2
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
2
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 c
