EXHIBIT 10.30
AMENDED AND
RESTATED COLLATERAL
AGREEMENT
For value
received, and in consideration of one or more loans, letters of
credit or other financial accommodations extended by JPMORGAN CHASE
BANK, N.A. or any of its subsidiaries or affiliates (the “
Bank ”), to Avistar Communications Corporation, a
Delaware corporation (the “ Obligor ”, and, if
more than one, collectively, the “ Obligor ”),
the undersigned and the Bank agree as follows:
“
Account Assets ” means all Deposits, Securities,
securities entitlements and any other assets held in trust, or in
any custody, subcustody, safekeeping, investment management
accounts, or other accounts of the undersigned with the Bank or any
other custodian, trustee, Intermediary or Clearing System (all of
which shall be considered “financial assets” under the
UCC).
“
Account Control Agreement ” means a securities account
control agreement or other similar agreement with any Intermediary
and shall specifically include any master securities account
control agreement among the Bank and any of its affiliates, as
amended from time to time.
“
Clearing System ” means the Depository Trust
Company (“ DTC ”), Cedel Bank,
societe anonyme, the Euroclear system and such other clearing or
safekeeping system that may from time to time be used in connection
with transactions relating to or the custody of any Securities, and
any depository for any of the foregoing.
“
Collateral ” means: (i) the Deposits,
Securities and Account Assets that are listed on Exhibit A; (ii)
all additions to, and proceeds, renewals, investments,
reinvestments and substitutions of, the foregoing, whether or not
listed on Exhibit A; and (iii) all certificates, receipts and other
instruments evidencing any of the foregoing.
“
Deposits ” means the deposits of the undersigned with
the Bank or with any other Intermediary (whether or not held in
trust, or in any custody, subcustody, safekeeping, investment
management accounts, or other accounts of the undersigned with the
Bank or any other Intermediary).
“
Guaranty ” means the Amended and Restated Guaranty
dated as of December 22, 2008 by the undersigned in favor of
the Bank, as amended, restated or otherwise modified from time to
time.
“
Intermediary ” means (i) any party acting as a
financial intermediary or securities intermediary, including,
without limitation, affiliates of the Bank that are parties to any
Account Control Agreement from time to time.
“
Liabilities ” means the “Liabilities” (as
defined in the Guaranty) and all costs and expenses incurred by the
Bank in connection with the Collateral, this Agreement or the
Guaranty.
“
Liability Document ” means any instrument, agreement
or document evidencing, governing, or executed or delivered in
connection with the Liabilities.
“
Securities ” means the stocks, bonds and other
instruments and securities, whether or not held in trust or in any
custody, subcustody, safekeeping, investment management accounts or
other accounts of the undersigned with the Bank or any other
Intermediary and securities entitlements with respect to the
foregoing.
“
UCC ” means the Uniform Commercial Code in effect in
the State of New York. Unless the context otherwise
requires, all terms used in this Agreement which are defined in the
UCC will have the meanings stated in the UCC.
2.
Grant of Security Interest.
As security for
the payment of all the Liabilities, the undersigned pledges,
transfers and assigns to the Bank and grants to the Bank a security
interest in and right of setoff against, the Collateral and hereby
agrees to be bound by the terms of any Account Control Agreement
among the Bank and its affiliates, as amended from time to
time.
3.
Agreements of the Undersigned and Rights of the
Bank.
The undersigned
agrees as follows and irrevocably authorizes the Bank to exercise
the rights listed below, at its option, for its own benefit, either
in its own name or in the name of the undersigned, and appoints the
Bank as its attorney-in-fact to take all action permitted under
this Agreement.
(a)
Deposits: The Bank may: (i)
renew the Deposits on terms and for periods the Bank deems
appropriate; (ii) demand, collect, and receive payment of any
monies or proceeds due or to become due under the Deposits; (iii)
execute any instruments required for the withdrawal or repayment of
the Deposits; and (iv) in all respects deal with the Deposits as
the owner; provided that, as to (ii) through (iv), until the
occurrence of a Default (as defined below), the Bank will only take
that action if, in its judgment, failure to take that action would
impair its rights under this Agreement or diminish its operational
control over Collateral.
(b)
Securities: The Bank may: (i) transfer to the
account of the Bank any Securities whether in the possession of, or
registered in the name of, any Clearing System or held otherwise;
(ii) transfer to the account of the Bank with any Federal Reserve
Bank any Securities held in book entry form with any such Federal
Reserve Bank; and (iii) transfer to the name of the Bank or its
nominee any Securities registered in the name of the undersigned
and held by the Bank and complete and deliver any necessary stock
powers or other transfer instruments; provided that until the
occurrence of a Default, the Bank will only take that action if, in
its judgment, failure to take that action would impair its rights
under this Agreement or diminish its operational control over
Collateral, or if such Securities are held in a custody, investment
management or similar account.
The undersigned
grants to the Bank an irrevocable proxy to vote any and all
Securities and give consents, waivers and ratifications in
connection with those Securities upon and after the occurrence of a
Default.
All payments,
distributions and dividends in securities, property or cash shall
be paid directly to and, at the discretion of the Bank, retained by
the Bank and held by it, until applied as provided in this
Agreement, as additional Collateral; provided that until the
occurrence of a Default, interest on Deposits and cash dividends on
Securities paid in the ordinary course will be paid to the
undersigned.
(c)
General : The Bank may, in its name, or in
the name of the undersigned: (i) execute and file
financing statements under the UCC or any other filings or notices
necessary or desirable to create, perfect or preserve its security
interest, all without notice (except as required by applicable law
and not waivable) and without liability except to account for
property actually received by it; (ii) demand, sue for, collect or
receive any money or property at any time payable or receivable on
account of or in exchange for, or make any compromise or settlement
deemed desirable with respect to, any item of the
Collateral (but shall be under no obligation to do so);
(iii) make any notification (to the issuer of any certificate or
Security, or otherwise, including giving any notice of exclusive
control to the Intermediary) or take any other action in connection
with the perfection or preservation of its security
interest or any enforcement of remedies, and retain any
documents evidencing the title of the undersigned to any item of
the Collateral; and (iv) issue entitlement orders with respect to
any of the Collateral.
The undersigned
agrees that it will not file or permit to be filed any termination
statement with respect to the Collateral or any financing or like
statement with respect to the Collateral in which the Bank is not
named as the sole secured party, consent or be a party to any
Account Control Agreement to which the Bank is not also a party or
sell, assign, or otherwise dispose of, grant any option with
respect to, or pledge, or otherwise encumber the
Collateral. At the request of the Bank the undersigned
agrees to do all other things which the Bank may deem necessary or
advisable in order to perfect and preserve its security interest,
perfection and operational control and to give effect to the rights
granted to the Bank under this Agreement or enable the Bank to
comply with any applicable laws or
regulations. Notwithstanding the foregoing, the Bank
does not assume any duty with respect to the Collateral and is not
required to take any action to collect, preserve or protect its or
the undersigned’s rights in any item of the
Collateral. The undersigned releases the Bank and agrees
to hold the Bank harmless from any claims, causes of action and
demands at any time arising with respect to this Agreement, the use
or disposition of any item of the Collateral or any action taken or
omitted to be taken by the Bank with respect
thereto. The undersigned releases each Intermediary and
agrees to hold each Intermediary harmless from any claims, causes
of action and demands at any time arising with respect to any
instruction made by Bank to any Intermediary purporting to be made
under this Agreement or any Account Control Agreement, it being
understood that no Intermediary shall have any duty to investigate
Bank’s right to issue any such instruction or any other
matter related to any such instruction.
The rights
granted to the Bank pursuant to this Agreement are in addition to
the rights granted to the Bank in any custody, investment
management, trust, Account Control Agreement or similar
agreement. In case of conflict between the provisions of
this Agreement and of any other such agreement, the provisions of
this Agreement will prevail.
4.
Loan Value of the Collateral.
The undersigned
agrees that at all times the Liabilities may not exceed the
aggregate Loan Value of the Collateral. The undersigned
will, at the Bank’s option, either supplement the Collateral
or make, or cause to be made, any payment under the Liabilities to
the extent necessary to ensure compliance with this provision or
the Bank may liquidate Collateral to the extent necessary to ensure
compliance with this provision. “ Loan
Value ” means the value assigned by the Bank from time to
time, in its sole reasonable discretion, to each item of the
Collateral. The Bank retains the right to determine the
eligibility of the Collateral.
For calculation
purposes, any currency in which the Collateral is denominated (the
“ Collateral Currency ”) will be converted into
the currency of the Liabilities (the “ Liability
Currency ”) at the spot rate of exchange for the purchase
of the Liability Currency with the Collateral Currency quoted by
the Bank at such place as the Bank deems appropriate (or, if no
such rate is quoted on any relevant date, estimated by the Bank on
the basis of the Bank’s last quoted spot rate) or another
prevailing rate that the Bank deems more appropriate.
6.
Representations and Warranties.
The undersigned
represents and warrants that:
(a) this
Agreement constitutes the legal, valid and binding obligation of
the undersigned, enforceable against the undersigned in accordance
with its terms, except as the enforcement hereof and thereof may be
limited by bankruptcy, insolvency, or other similar laws affecting
the enforcement of creditors’ rights generally and subject to
the applicability of general principles of equity;
(b) the
execution, delivery and performance by the undersigned of this
Agreement and all other documents contemplated hereby, do not and
will not (i) conflict with or constitute a breach of, or default
under, or require any consent under, or, except as contemplated
hereby, result in the creation of any lien, charge or encumbrance
upon the property or assets of the undersigned pursuant to any
other agreement or instrument to which the undersigned
is a party or is bound or by which its properties may be bound or
affected; or (ii) violate any provision of any law, r
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