EXHIBIT 10.40
AMENDED AND RESTATED SUBSIDIARY
GUARANTY
September 1, 2005
Reference is made to (i) the Senior Secured
Bridge Note Purchase Agreement, dated as of July 8, 2005,
among Axeda Systems Inc., a Delaware corporation (the “
Company ”), certain direct and indirect wholly owned
subsidiaries of the Company and persons identified therein as
“Purchasers” (the “ Purchasers ”)
(as may be hereafter amended, modified, substituted, extended or
restated from time to time, including any replacement agreement
therefore, the “ Senior Purchase Agreement ”)
and (ii) the Senior Subordinated Secured Bridge Note Purchase
Agreement, dated as of September 1, 2005, among the Company,
certain direct and indirect wholly owned subsidiaries of the
Company and the Purchasers (as may be hereafter amended, modified,
substituted, extended or restated from time to time, including any
replacement agreement therefore, the “ Senior Subordinated
Purchase Agreement ,” and together with the Senior
Purchase Agreement, the “ Purchase Agreements
”).
FOR VALUE RECEIVED, and in consideration of note
purchases from, loans made or to be made or credit otherwise
extended or to be extended to or for the account of the Company by
the Purchasers pursuant to the Purchase Agreements, from time to
time and at any time and for other good and valuable consideration
and to induce the Purchasers, in their discretion, to purchase such
notes, make such loans or extensions of credit and to make or grant
such renewals, extensions, releases of collateral or
relinquishments of legal rights as the Purchasers may deem
advisable, each of Axeda Systems Operating Company, Inc., a
Massachusetts corporation and an indirect wholly owned subsidiary
of the Company (“ ASOC ”), and Axeda IP, Inc., a
Nevada corporation and an indirect wholly owned subsidiary of the
Company (“ AIP ” and, together with ASOC, the
“ Guarantors ”), jointly and severally,
unconditionally guaranty to the Purchasers, their successors,
endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations
and liabilities of any and all kinds of the Company to the
Purchasers and of all instruments of any nature evidencing or
relating to any such obligations and liabilities upon which the
Company or one or more parties and the Company is or may become
liable to the Purchasers, whether incurred by the Company as maker,
endorser, drawer, acceptor, guarantors, accommodation party or
otherwise, and whether due or to become due, secured or unsecured,
absolute or contingent, joint or several, and however or whenever
acquired by the Purchasers, whether arising under, out of, or in
connection with (i) the Purchase Agreements and (ii) each of the
other Bridge Loan Documents (as defined in the Purchase
Agreements), or any documents, instruments or agreements relating
to or executed in connection with the Bridge Loan Documents or any
documents, instruments or agreements referred to therein or
otherwise, or any other indebtedness, obligations or liabilities of
the Company to the Purchasers, whether now existing or hereafter
arising, direct or indirect, liquidated or unliquidated, absolute
or contingent, due or not due and whether under, pursuant to or
evidenced by a note, agreement, guaranty, instrument or otherwise
(all of which are herein collectively referred to as the “
Obligations ”), and irrespective of the genuineness,
validity, regularity or enforceability of such Obligations, or of
any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such
collateral, and irrespective of the allowability, allowance or
disallowance of any or all of the Obligations in any case commenced
by or against the Company under Title 11, United States Code,
including, without limitation, obligations or indebtedness of the
Company for post-petition interest, fees, costs and charges that
would have accrued or been added to the Obligations but for the
commencement of such case. Terms not otherwise defined herein shall
have the meaning assigned such terms in the Purchase Agreements. In
furtherance of the foregoing, the Guarantors hereby jointly and
severally agree as follows:
1. No
Impairment . The Purchasers may at any time and from time to
time, either before or after the maturity thereof, without notice
to or further consent of the Guarantors, extend the time of payment
of, exchange or surrender any collateral for, renew or extend any
of the Obligations or increase or decrease the interest rate
thereon, or any other agreement with the Company or with any other
party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge
or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between the Purchasers and
the Company or any such other party or person, or make any election
of rights the Purchasers may deem desirable under the United States
Bankruptcy Code, as amended, or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law relating
to or affecting the enforcement of creditors’ rights
generally (any of the foregoing, an “ Insolvency Law
”) without in any way impairing or affecting this Guaranty.
This instrument shall be effective regardless of the subsequent
incorporation, merger or consolidation of the Company, or any
change in the composition, nature, personnel or location of the
Company and shall extend to any successor entity to the Company,
including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty
Absolute . Subject to Section 5(c), each of the Guarantor
guarantees that the Obligations will be paid strictly in accordance
with the terms of the Bridge Loan Documents and/or any other
document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Company with respect thereto. Each of the
Guarantors hereby knowingly accepts the full range of risk
encompassed within a contract of “continuing guaranty”
which risk includes the possibility that the Company will contract
additional indebtedness for which the Guarantor may be liable
hereunder after the Company’s financial condition or ability
to pay its lawful debts when they fall due has deteriorated,
whether or not the Company has properly authorized incurring such
additional indebtedness. Each of the Guarantors acknowledges that
no oral representations, including any representations to extend
credit or provide other financial accommodations to the Company,
have been made by the Purchasers to induce the Guarantor to enter
into this Guaranty. The liability of the Guarantors under this
Guaranty shall be absolute and unconditional, in accordance with
its terms, and shall remain in full force and effect without regard
to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or
supplement to or deletion from or any other action or inaction
under or in respect of the Bridge Loan Documents or any other
instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof; (b) any lack of validity or
enforceability of any Bridge Loan Document or other documents,
instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof; (c) any furnishing of any
additional security to the Purchasers or their assignees or any
acceptance thereof or any release of any security by the Purchasers
or their assignees; (d) any limitation on any party’s
liability or obligation under the Bridge Loan Documents or any
other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof or any
invalidity or unenforceability, in whole or in part, of any such
document, instrument or agreement or any term thereof; (e) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to the
Company, or any action taken with respect to this Guaranty by any
trustee or receiver, or by any court, in any such proceeding,
whether or not the Guarantors shall have notice or knowledge of any
of the foregoing; (f) any exchange, release or nonperfection of any
collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the
Obligations; or (g) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Guarantors. Any amounts due from the Guarantors to the Purchasers
shall bear interest until such amounts are paid in full at the
highest rate then applicable to the Obligations. Obligations
include post-petition interest whether or not allowed or
allowable.
3.
Waivers .
(a) This Guaranty is a guaranty of payment and not
of collection. The Purchasers shall be under no obligation to
institute suit, exercise rights or remedies or take any other
action against the Company or any other person liable with respect
to any of the Obligations or resort to any collateral security held
by it to secure any of the Obligations as a condition precedent to
the Guarantors being obligated to perform as agreed herein and the
Guarantors hereby waive any and all rights which it may have by
statute or otherwise which would require the Purchasers to do any
of the foregoing. Each of the Guarantors further consents and
agrees that the Purchasers shall be under no obligation to marshal
any assets in favor of Guarantor, or against or in payment of any
or all of the Obligations. Each of the Guarantors hereby waives all
suretyship defenses and any rights to interpose any defense,
counterclaim or offset of any nature and description which the
Guarantor may have or which may ex
