AMENDMENT NO. 1 TO SENIOR SECURED BRIDGE NOTE PURCHASE AGREEMENT
EXHIBIT
10.38
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 to the Senior Secured Bridge Note Purchase Agreement (the
“Amendment”)
is
entered into effective as of September 1, 2005, by and among Axeda Systems
Inc.,
a Delaware corporation (the “Company”),
Axeda
Systems Operating Company, Inc., a Massachusetts corporation (“ASOC”),
and
JMI Equity Fund V, L.P., a Delaware limited partnership, and JMI Equity Fund
V
(AI), L.P., a Delaware limited partnership (collectively, the “Purchasers”).
WHEREAS,
the Company, ASOC and the Purchasers have entered into that certain Senior
Secured Bridge Note Purchase Agreement, dated as of July 8, 2005 (the
“Bridge
Loan Agreement”).
WHEREAS,
the Company, ASOC and the Purchasers desire to amend the provisions of the
Bridge Loan Agreement to modify the definition of Maturity Date.
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises and
conditions of the Amendment, and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Maturity
Date.
Section
5(a)(vi) of the Bridge Loan Agreement is hereby amended by removing “October 31,
2005” and inserting “December 15, 2005”.
2. Amendment
of Bridge Loan Agreement.
This
Amendment hereby amends the Bridge Loan Agreement. Except as explicitly provided
in this Amendment, the Bridge Loan Agreement will remain unchanged and in full
force and effect. The term “Bridge Loan Agreement” as used in the Bridge Loan
Agreement and all other instruments and agreements executed thereunder shall
for
all purposes refer to the Bridge Loan Agreement as amended by this Amendment.
3. Counterparts.
This
Amendment may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
4. Capitalized
Terms.
Capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to them in the Bridge Loan Agreement.
5. Continued
Effect; Conflict of Terms.
Each of
the parties hereto hereby confirms that the Security Agreement, except as
expressly amended by this Amendment, remains in full force and effect. To the
extent there is any conflict between the terms of the Bridge Loan Agreement
and
this Amendment, the terms of this Amendment shall take precedence.
6. Governing
Law.
This
Amendment shall be governed by and construed under the laws of the Commonwealth
of Massachusetts, without giving effect to the principles of conflict of laws
thereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment effective
as of
the day and year first written above.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
Title:
Chief Executive Officer
AXEDA
SYSTEMS OPERATING COMPANY, INC.
By:
/s/
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
JMI
EQUITY
FUND V, L.P.
By:
JMI Associates V, L.L.C.
its
General Partner
By:
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Member
JMI
EQUITY
FUND V (AI), L.P.
By:
JMI Associates V, L.L.C.
its
General Partner
By:
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Managing Member