ex_10-44.htm


    EXHIBIT
10.44

    


    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 Second
Amended and Restated Revolving Credit Promissory Note (Libor/Prime) dated as of
December 22, 2009 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 a Third Amended and Restated Security
Agreement dated as of December 22, 2009 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] delivered to the Seller that certain Second
Amended and Restated Guaranty dated as of December 22, 2009,  (as from
time to time may be amended, restated or otherwise modified, the “Guaranty”), thereby
guarantying 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 (1st)
      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.

            


    


    
      
         


      

      
        1

        
          

        

      

      
         


      

    

    
      	
               

            	
               

            


    

    


    
      	
              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.

    


     

    


    
      
        	 	 	 	 JPMORGAN CHASE BANK,
      N.A.	 
	
                 

              	
              	 	
                /s/
      

              	 
	
                 

              	 	 	
                Name 

              	 
	
                 

              	 	 	
                Title

              	 


      



    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 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 expenses
      heretofore or hereafter incurred by the Seller as a result of a breach by
      the Buyer of the aforesaid
agreement.

            


    


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
                

            	
               

            


    

    


    
      	
              6.3  

            	
              The
      Buyer’s decision to purchase the Loan is based upon the Buyer's own
      independent evaluation.  The Buyer has made such independent
      investigation as the Buyer deems to be warranted into the nature,
      validity, enforceability, collectibility, and value of the Loan and all
      other facts it deems material to its purchase, and is entering into this
      transaction herein provided for, solely on the basis of that investigation
      and the Buyer's own judgment, and is not acting in reliance on any
      representation of, or information furnished by the Seller and acknowledges
      that no employee or representative of the Seller has been authorized to
      make any statements or representations other than those specifically
      contained in this Agreement.  The Buyer hereby waives any right
      or cause of action it might now or in the future have against the Seller
      as a result of its purchase of the
Loan.

            


    

    


    
      	
              6.4  

            	
              The
      Buyer (i) is able to bear the economic risk associated with the purchase
      of the Loan, (ii) has adequate information concerning the business and
      financial condition of the Borrower or any third party to make an informed
      decision regarding the purchase of the Loan, (iii) has such knowledge and
      experience so as to be aware of the risks and uncertainties inherent in
      the purchase of rights and assumption of liabilities of the type
      contemplated in this Agreement and (iv) has independently and without
      reliance upon the Seller, and based on such information as the Buyer has
      deemed appropriate, made its own analysis and decision to enter into this
      Agreement.  The Buyer acknowledges that the Seller has not given
      the Buyer any investment advice, credit information or opinion on whether
      the purchase of the Loan is
prudent.

            


    

    


    
      	
              6.5  

            	
              The
      Buyer has full power and authority to execute, deliver and perform its
      obligations under, this Agreement and is authorized to enter into this
      Agreement.  All laws, rules and regulations to which the Buyer
      may be subject have been duly complied with.  This Agreement has
      been duly and validly executed and delivered by the Buyer and constitutes
      the legal, valid, and binding obligation of the Buyer, enforceable against
      the Buyer in accordance with its terms, except that such enforceability
      may be limited by bankruptcy, insolvency, or other similar laws of general
      applicability affecting the enforcement of creditors’ rights generally and
      by the court’s discretion in relation to equitable
    remedies.

            


    

    


    
      	
              6.6  

            	
              The
      Buyer is an “accredited investor” as that term is defined by the
      Securities Act of 1933, as amended.  The Buyer has such
      knowledge and experience in financial and business matters, relating to
      the ownership and collection of loan assets, that it is capable of
      evaluating the merits and risks of a prospective investment in the
      Loan.  The Buyer acknowledges that the Loan may have limited or
      no liquidity and it has the financial capability to hold the Loan for an
      indefinite period of time and to bear the economic risks of, including a
      complete loss of its investment in, the purchase and acquisition of the
      Loan.

            


    

    


    
      	
              7.  

            	
              No
      Recourse or Warranty, Etc.:  The sale of
      the Loan is made by the Seller without any representation or warranty
      either express or implied in fact or by law.  Any other
      provisions of this Agreement to the contrary notwithstanding, the Seller
      and the Buyer agree that no guarantee of any kind or type whatsoever,
      whether made by public, private or governmental entity, is purchased,
      acquired, assumed, or in any other manner transferred or conveyed to the
      Buyer pursuant to this Agreement.  Further,
      the Seller has not, does not and will not make any representations or
      warranties with regard to compliance with any, rules, regulations, orders
      or requirements.  The Buyer acknowledges and agrees that the
      sale and assignment of the Loan is made without recourse or
      warranty.  The Seller makes no warranties, covenants or
      representation of any sort or in any manner with regard to the Loan,
      except that the Seller is the owner and holder of all rights in the Loan
      to be sold and assigned and is authorized to consummate such sale by
      virtue of such rights and
capacity.

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               

            	
               

            


    

    


    
      	
              8.  

            	
              Files
      and Records:
      The Buyer further agrees as
follows:

            


    

    


    
      	
              8.1  

            	
              The
      Buyer agrees to abide by all applicable state and federal laws, rules and
      regulations regarding the handling and maintenance of all documents and
      records relating to the Loan purchased hereunder including, but not
      limited to, the length of time such documents and records are to be
      retained.

            


    

    


    
      	
              8.2  

            	
              After
      transfer of documents or files to the Buyer pursuant to the terms of this
      Agreement, the Buyer agrees that the Seller shall have the continuing
      right to use, inspect, and make extracts from or copies of any such
      documents or records, upon the Seller's reasonable notice to the
      Buyer.

            


    

    


    
      	
              8.3  

            	
              The
      Buyer further agrees to allow the Seller the possession, custody and use
      of original documents for any lawful purpose and upon reasonable terms and
      conditions.

            


    

    


    
      	
              8.4  

            	
              Before
      destruction or disposition of any documents or files transferred
      hereunder, the Buyer agrees to give reasonable notice to the Seller and to
      allow the Seller, at its own expense, to recover the same from the
      Buyer.

            


    

    


    
      	
              9.  

            	
              Notice
      Of Claim:  The Buyer shall
      immediately notify the Seller of any claim, threatened claim, or any
      litigation against the Seller which may come to its
    attention.

            


    

    


    
      	
              10.  

            	
              Notices:  Unless
      otherwise agreed in writing, notices shall be given to the Seller and the
      Buyer at their telecopier numbers (confirmed by telephone to their
      telephone numbers) or addresses set forth in the signature page of this
      Agreement, or such other telecopier (and telephone) number or address
      communicated in writing by either such party to the
      other.  Notices to the Bank shall be effective upon
      receipt.

            


    

    


    
      	
              11.  

            	
              Use
      of the Seller Name:  The Buyer
      agrees that it will not use or permit the use by its agents,
      successors or assigns, of any name or combination of letters which is
      similar to “JPMorgan Chase Bank, N.A.”, “Chase” or
      "JPMCB."   The Buyer will not represent or imply that it is
      affiliated with, authorized by, or in any way related to the
      Seller.

            


    

    


    
      	
              12.  

            	
              Severability:  Each part
      of this Agreement is intended to be severable.  If any term,
      covenant, condition or provision hereof is unlawful, invalid, or
      unenforceable for any reason whatsoever, such illegality, invalidity, or
      unenforceability shall not affect the legality, validity, or
      enforceability of the remaining parts of this Agreement, and all such
      remaining parts hereof shall be valid and enforceable and have full force
      and effect as if the invalid or unenforceable part had not been
      included.

            


    

    


    
      	
              13.  

            	
              Construction:  Unless the context
      otherwise requires, singular nouns and pronouns, when used herein, shall
      be deemed to include the plural and vice versa, and impersonal pronouns
      shall be deemed to include the personal pronoun of the appropriate
      gender.

            


    

    


    
      	
              14.  

            	
              Assignment:  This
      Agreement and the terms, covenants, conditions, provision, obligation,
      undertaking, rights and benefits hereof, shall be binding upon, and shall
      inure to the benefit of, the undersigned parties and their respective
      heirs, executors, administrators, representatives successors,
      and assigns.  This Agreement shall not be assigned without the
      Seller's prior written
consent.

            


    


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
                

            	
               

            


    

    


    
      	
              15.  

            	
              Prior
      Understandings:  This
      Agreement supersedes any and all prior discussions and agreements between
      the Seller and the Buyer with respect to the purchase of the Loan and
      other matters contained herein, and this Agreement contains the sole and
      entire understanding between the parties hereto with respect to the
      transactions contemplated herein.

            


    

    


    
      	
              16.  

            	
              Survival:  Each and every covenant
      made by the Buyer or the Seller in this Agreement shall survive the
      Closing and shall not merge into the closing documents, but instead shall
      be independently enforceable.

            


    

    


    
      	
              17.  

            	
              Governing
      Law; Jurisdiction:  This
      Agreement shall be governed by and construed in accordance with the laws
      of the State of New York.  The Buyer consents to the
      nonexclusive jurisdiction and venue of the state or federal courts located
      in such state.  In the event of a dispute hereunder, suit may be
      brought against the Buyer in such courts or in any jurisdiction where the
      Buyer or any of its assets may be located.  Service of process
      by the Seller in connection with any dispute shall be binding on the Buyer
      if sent to the Buyer by registered mail at the address(es) specified above
      or to such further address(es) as the Buyer may specify to the Seller in
      writing.

            


    

    


    
      	
              18.  

            	
              Counterparts: This Agreement may be
      executed in any number of counterparts, all of which taken together shall
      constitute one and the same
instrument.

            


    

    


    


    IN WITNESS WHEREOF, the Seller
and the Buyer have executed this Agreement by their duly authorized officers as
of the date first set forth above.

    


    


    
      
        	 	 	 	 JPMORGAN CHASE BANK,
      N.A.	 
	
                 

              	 	 	
                /s/
      

              	 
	
                 

              	 	 	
                Name 

              	 
	
                 

              	 	 	
                Title

              	 


      



    Address
for Notices to the Bank:

    


    JPMorgan
Chase Bank, N.A.

    Private
Bank Credit

    Attn: Arn Welles

    345 Park
Avenue, Floor 04

    New York,
NY 10154-0004

    Telecopier:  (212)
464-2531

    Telephone:  (212)
464-1883

    


    


    With a
courtesy copy to

    


    JPMorgan
Chase Bank, N.A.

    Attn:  Nancy
A. Sheppard

    560
Mission Street, 19th
floor

    San
Francisco, CA 94105

    Telecopier:  (415)
315-8272

    Telephone:  (415)
315-8285


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    


    


    


    


    /s/  Gerald
J.
Burnett                                 


    Gerald
J. Burnett

    


    Address
for notices:

    202
Camino Al Lago

    Atherton,
CA 94027

    Telecopier:  (650)
322-2060

    Telephone:  (650)
322-2060

    


    


    Gerald
J. Burnett and Marjorie J. Burnett , as Trustee for

    The
Gerald J. Burnett and Marjorie J. Burnett Revocable Trust

    


    


    By:          /s/  Gerald
J.
Burnett                   


    Gerald J. Burnett

    


    By:          /s/  Marjorie
J.
Burnett                  

    Marjorie J. Burnett

    


    


    


    Address
for notices:

    c/o
Gerald J. Burnett

    202
Camino Al Lago

    Atherton,
CA 94027

    Telecopier:  (650)
322-2060

    Telephone:  (650)
322-2060

    


    


    


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    


    
      	
              State
      of _________

            	
              )

            


    

    ) ss.:

    
      	
              County
      of ________

            	
              )

            


    

    


    On the ____ day of ____________ in the
year _____, before me, the undersigned, personally appeared Gerald J. Burnett,
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 ____________ in the
year _____, before me, the undersigned, personally appeared Marjorie J. Burnett,
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