FACILITY AGREEMENT
EXHIBIT
10.46
Reference
is made to the Second Amended and Restated Revolving Credit Promissory Note
(Libor/Prime) dated as of December 22, 2009 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 $11,250,000 (the “Note”).
Reference
is made to the Third Amended and Restated Security Agreement dated as of
December 22, 2009 by the Borrower and the Bank, which secures, among other
things, the Borrower’s obligations to the Bank under the Note (the “Original Security
Agreement”).
For value
received, the parties hereto hereby agree as follows
1. “Effective
Date” shall mean the later of January 11, 2010 and the first date by which all
of the following shall have occurred:
(a) the
Bank’s receipt of a duly executed and notarized fourth amended and restated
security agreement, dated January 11, 2010, substantially in the form of
Exhibit A
hereto (the “New Security
Agreement”);
(b) the
Bank’s receipt of a duly executed and notarized reaffirmation of guaranty, dated
January 11, 2010, substantially in the form of Exhibit B
hereto;
(c) the
Bank’s receipt of a duly executed and notarized secretary’s certificate, dated
January 11, 2010, substantially in the form of Exhibit C hereto
and otherwise acceptable to the Bank; and
(d) payment
of $2,500.00 to the Bank’s counsel in respect of services rendered to the Bank
in connection with the Borrower.
2. As of the
Effective Date, the Original Security Agreement shall be amended and restated in
its entirety by the New Security Agreement.
3. Promptly
following the effective date, the Bank shall cause to be filed with the Delaware
Secretary of State’s office a UCC financing statement
amendment, substantially in the form of Exhibit D
hereto
4. This
Agreement may not be amended or waived except by an instrument in writing signed
by the parties hereto.
This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
5. 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.
6. 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.
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rest of this page is intentionally blank.
UCN
006754857000
Facility
ID 198245263
2
IN WITNESS WHEREOF, the
parties have executed and delivered this Agreement as of the Effective
Date.
Avistar
Communications Corporation
By: /s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Chief Executive Officer
By: /s/ Xxxxx
MurrayMetzger
Name:
Xxxxx MurrayMetzger
Title:
Chief Financial Officer and Corporate Secretary
JPMorgan
Chase Bank, N.A.
By: /s/ Xxxxx X
Xxxxxxxx
Xxxxx
X. Xxxxxxxx
Managing
Director
State of
_________ )
) ss.:
|
County
of ________
|
)
|
On the ____ day of January in the year
2010, 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 January in the year
2010, 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
FOURTH AMENDED AND RESTATED SECURITY AGREEMENT
UCN
006754857000
Facility
ID 198245263
Exhibit
B
FORM OF
REAFFIRMATION OF GUARANTY
UCN
006754857000
Facility
ID 198245263
Exhibit
C
FORM OF
SECRETARY’S CERTIFICATE
UCN
006754857000
Facility
ID 198245263
Exhibit
D
FORM OF
UCC FINANCING STATEMENT AMENDMENT
UCN
006754857000
Facility
ID 198245263
