EXHIBIT 10.33
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 Amended and Restated Revolving Credit Promissory
Note (Libor/Prime) dated as of December 22, 2008 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 an
Amended and Restated Security Agreement dated as of December 22,
2008 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] (the together with the Buyer the “
Guarantors ”)] delivered to the Seller
its Amended and Restated Guaranty dated as of December 22,
2008, (as from time to time may be amended, restated or
otherwise modified, 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:
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Definitions : The following terms shall be defined as
follows:
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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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“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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“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.
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“ Due
Date ” has the meaning given such term in the
Guaranty.
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“Facility Documents”
has the meaning given such term in
the Note.
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“Loan” means the Note and the Security Agreement and
the Seller’s rights thereunder.
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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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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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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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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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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.
By:
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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Representations, Warranties and Agreements of
the Buyer : The Buyer represents, warrants and
agrees as follows:
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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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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 expens
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