FACILITY AGREEMENT
EXHIBIT
10.29
Reference
is made to the Revolving Credit Promissory Note (Libor/Prime) dated as of
December 23, 2006 made by Avistar Communications
Corporation, a Delaware corporation (the “Borrower”), to the
order of JPMorgan Chase Bank,
N.A. (the “Bank”) in the maximum
principal amount of $10,000,000 (the “Original
Note”).
Reference
is made to the Amended and Restated Revolving Credit Promissory Note
(Libor/Prime) dated as of December 22, 2008 (as amended or otherwise
modified from time to time, together with any promissory note or notes issued in
exchange therefor or in substitution therefor, the “New Note”) made by
the Borrower to the order of the Bank in the maximum principal amount of
$10,000,000.
For value
received, the parties hereto hereby agree, effective as of December 22, 2008
(the “Effective
Date”), as follows
1. Initial
capitalized terms used herein without definition have the meanings given them in
the New Note.
2. Notwithstanding
anything to the contrary in the New Note, the Bank shall have no obligation to
make any Loan unless each of the following conditions precedent are satisfied in
a manner satisfactory to the Bank:
(a) the
Bank’s receipt of a duly executed and notarized amended and restated collateral
agreement, dated December 22, 2008, substantially in the form of Exhibit A
hereto;
(b) the
Bank’s receipt of a duly executed and notarized amended and restated guaranty,
dated December 22, 2008, substantially in the form of Exhibit B
hereto;
(c) the
Bank’s receipt of a duly executed and notarized second amended and restated
security agreement, dated December 22, 2008, substantially in the form of Exhibit C
hereto; and
(d) payment
of $__________ to the Bank’s counsel in respect of services rendered to the Bank
in connection with the Borrower.
3. Upon
satisfaction of all of the conditions precedent set forth in Section 1 of
this Agreement in a manner satisfactory to the Bank, then as of the Effective
Date:
(a) the
Original Note shall be amended and restated in its entirety by the New Note;
and
(b) “Loans”
(as defined in the Original Note) outstanding under the Original Note shall be
deemed Loans under, and upon the terms set forth in, the New Note.
4. This
Agreement may not be amended or waived except by an instrument in writing signed
by the parties hereto.
5. This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
6. Each
party hereto consents to the nonexclusive jurisdiction and venue of the state or
federal courts located in the City of New York. Each party hereto
irrevocably waives, to the fullest extent permitted by applicable law, (a) any
objection that it may now or hereafter have to the laying of venue of any such
legal proceeding in the state or federal courts located in the City of New York
and (b) any right it may have to a trial by jury in any suit, action,
proceeding, claim or counterclaim brought by or on behalf of any party related
to or arising out of this letter agreement or the transactions contemplated
hereby.
7. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
instrument.
The
rest of this page is intentionally blank.
IN WITNESS WHEREOF, the
parties have executed and delivered this Agreement as of the Effective
Date.
Avistar
Communications Corporation
By: /s/Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title:
Chief Financial Officer
By: /s/ Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title:
Chief Executive Officer
JPMorgan
Chase Bank, N.A.
By: /s/ Xxxxx X.
Sheppard________
Xxxxx
X. Xxxxxxxx
Managing
Director
|
State
of _________
|
)
|
) ss.:
|
County
of ________
|
)
|
On the ____ day of December in the year
2008, before me, the undersigned, personally appeared _____________________________,
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
|
State
of _________
|
)
|
) ss.:
|
County
of ________
|
)
|
On the ____ day of December in the year
2008, before me, the undersigned, personally appeared _____________________________,
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
Exhibit
A
FORM OF
AMENDED AND RESTATED COLLATERAL AGREEMENT
Exhibit
B
FORM OF
AMENDED AND RESTATED GUARANTY
Exhibit
C
FORM OF
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
