Exhibit
10.7


 


EXECUTION
VERSION


 


 


 


 




 





 


 


 


 


NOTE
PURCHASE AGREEMENT


 


 


among


 


 


GENUTEC
BUSINESS SOLUTIONS, INC.,


 


 


 


TECHNOLOGY
INVESTMENT CAPITAL CORP.,


as
Collateral Agent,


 


 


and


 


 


The
Purchasers Named on Schedule I


 


 


 


 


$20,000,000
Senior Secured Notes Due 2010


 


 


 


 


Dated
as of September 16, 2005


 


 


 


 




 





 

















 


TABLE OF CONTENTS


(Not Part of Agreement)


 


	
  Section

  	
   

  	
  Heading

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1.

  	
  Defined
  Terms

  	
   

  
	
   

  	
  1.2.

  	
  Accounting
  Principles

  	
   

  
	
   

  	
  1.3.

  	
  Rules of
  Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Issuance and
  Sale of Notes

  	
   

  
	
   

  	
  2.1.

  	
  Authorization
  of Notes

  	
   

  
	
   

  	
  2.2.

  	
  Sale and
  Purchase of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Payment and
  Prepayment of Notes

  	
   

  
	
   

  	
  3.1.

  	
  Mandatory
  Payment of Principal

  	
   

  
	
   

  	
  3.2.

  	
  Optional
  Prepayment of the Notes

  	
   

  
	
   

  	
  3.3.

  	
  Notice of
  Prepayment of the Notes

  	
   

  
	
   

  	
  3.4.

  	
  Manner, Time
  and Allocation of Payments

  	
   

  
	
   

  	
  3.5.

  	
  Payments
  Free and Clear of Taxes

  	
   

  
	
   

  	
  3.6.

  	
  Payments Due
  on Days Not Business Days

  	
   

  
	
   

  	
  3.7.

  	
  Surrender of
  Notes; Notation Thereon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Representations
  and Warranties of the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Corporate
  Existence and Power

  	
   

  
	
   

  	
  4.2.

  	
  Corporate
  Authority

  	
   

  
	
   

  	
  4.3.

  	
  Binding
  Effect

  	
   

  
	
   

  	
  4.4.

  	
  Liens and
  Security Interests

  	
   

  
	
   

  	
  4.5.

  	
  No Conflicts
  with Agreements, Etc

  	
   

  
	
   

  	
  4.6.

  	
  Consents,
  Etc

  	
   

  
	
   

  	
  4.7.

  	
  Equity Interests

  	
   

  
	
   

  	
  4.8.

  	
  Financial
  Statements; Projections; No Material Change

  	
   

  
	
   

  	
  4.9.

  	
  Subsidiaries

  	
   

  
	
   

  	
  4.10.

  	
  Litigation

  	
   

  
	
   

  	
  4.11.

  	
  No Violation
  of Law; No Default

  	
   

  
	
   

  	
  4.12.

  	
  Title to
  Properties

  	
   

  
	
   

  	
  4.13.

  	
  Taxes

  	
   

  
	
   

  	
  4.14.

  	
  Labor
  Matters

  	
   

  
	
   

  	
  4.15.

  	
  Environmental
  Matters

  	
   

  
	
   

  	
  4.16.

  	
  Compliance
  with ERISA

  	
   

  
	
   

  	
  4.17.

  	
  Material
  Contracts

  	
   

  
	
   

  	
  4.18.

  	
  Insurance

  	
   

  
	
   

  	
  4.19.

  	
  Possession
  of Franchises, Licenses, Etc.

  	
   

  



 


 


i

















 


	
   

  	
  4.20.

  	
  Intellectual
  Property

  	
   

  
	
   

  	
  4.21.

  	
  Software

  	
   

  
	
   

  	
  4.22.

  	
  Deposit
  Accounts; Securities Accounts

  	
   

  
	
   

  	
  4.23.

  	
  Interest in
  Competitors

  	
   

  
	
   

  	
  4.24.

  	
  Related
  Party Transactions

  	
   

  
	
   

  	
  4.25.

  	
  Registration
  Rights

  	
   

  
	
   

  	
  4.26.

  	
  [Reserved]

  	
   

  
	
   

  	
  4.27.

  	
  Existing
  Indebtedness and
  Contingent Obligations

  	
   

  
	
   

  	
  4.28.

  	
  Customers

  	
   

  
	
   

  	
  4.29.

  	
  Eligible
  Portfolio Company

  	
   

  
	
   

  	
  4.30.

  	
  Margin
  Regulations; Public Utility Holding Company Act

  	
   

  
	
   

  	
  4.31.

  	
  Solvency

  	
   

  
	
   

  	
  4.32.

  	
  Foreign
  Assets Control Regulations and Anti-Money Laundering

  	
   

  
	
   

  	
  4.33.

  	
  Internal
  Accounting Controls

  	
   

  
	
   

  	
  4.34.

  	
  Offering of
  Securities

  	
   

  
	
   

  	
  4.35.

  	
  Broker’s or
  Finder’s Commissions

  	
   

  
	
   

  	
  4.36.

  	
  Acquisition
  Transactions

  	
   

  
	
   

  	
  4.37.

  	
  Disclosure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Representations
  of Purchasers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  [Reserved]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Financial
  Statements and Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Inspection
  Rights; Board Observation Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  Inspection
  of Books and Properties

  	
   

  
	
   

  	
  8.2.

  	
  Board of
  Directors; Observation Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Affirmative
  Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Payment of
  Principal, Prepayment Charge and Interest

  	
   

  
	
   

  	
  9.2.

  	
  Maintenance
  of Corporate Existence, Properties and Records

  	
   

  
	
   

  	
  9.3.

  	
  Payment of
  Taxes and Claims

  	
   

  
	
   

  	
  9.4.

  	
  Compliance
  With Law

  	
   

  
	
   

  	
  9.5.

  	
  Environmental
  Matters

  	
   

  
	
   

  	
  9.6.

  	
  Insurance

  	
   

  
	
   

  	
  9.7.

  	
  After
  Acquired Real Property

  	
   

  
	
   

  	
  9.8.

  	
  Future
  Subsidiaries

  	
   

  



 


 


ii

















 


	
   

  	
  9.9.

  	
  Use of Proceeds

  	
   

  
	
   

  	
  9.10.

  	
  Registration
  Statement

  	
   

  
	
   

  	
  9.11.

  	
  Further
  Assurances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Negative
  Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Restrictions
  on Indebtedness

  	
   

  
	
   

  	
  10.2.

  	
  Restrictions
  on Liens

  	
   

  
	
   

  	
  10.3.

  	
  Limitation
  on Sale and Leasebacks

  	
   

  
	
   

  	
  10.4.

  	
  Mergers,
  Consolidations, Sales of Assets and Acquisitions

  	
   

  
	
   

  	
  10.5.

  	
  Conduct of
  Business

  	
   

  
	
   

  	
  10.6.

  	
  Restricted
  Payments and Restricted Investments

  	
   

  
	
   

  	
  10.7.

  	
  Disqualified
  Redeemable Stock; Issuance of Stock by Subsidiaries

  	
   

  
	
   

  	
  10.8.

  	
  Transactions
  with Affiliates

  	
   

  
	
   

  	
  10.9.

  	
  Operating
  Leases

  	
   

  
	
   

  	
  10.10.

  	
  Contingent
  Obligations

  	
   

  
	
   

  	
  10.11.

  	
  Limitation
  on Dividend Restrictions Affecting Subsidiaries

  	
   

  
	
   

  	
  10.12.

  	
  Compliance
  with ERISA

  	
   

  
	
   

  	
  10.13.

  	
  Accounting
  Changes

  	
   

  
	
   

  	
  10.14.

  	
  No Amendment
  of Organizational Documents or Certain Other Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Financial
  Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Capital
  Expenditures

  	
   

  
	
   

  	
  11.2.

  	
  Maintenance
  of Minimum Interest Coverage

  	
   

  
	
   

  	
  11.3.

  	
  Maintenance
  of Maximum Leverage Ratio

  	
   

  
	
   

  	
  11.4.

  	
  Maintenance
  of Minimum Consolidated EBITDA

  	
   

  
	
   

  	
  11.5.

  	
  Maintenance
  of Minimum Consolidated Revenues

  	
   

  
	
   

  	
  11.6.

  	
  Maintenance
  of Minimum Cash Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Events of
  Default; Remedies

  	
   

  
	
   

  	
  12.2.

  	
  Suits for
  Enforcement; Remedies Against Collateral

  	
   

  
	
   

  	
  12.3.

  	
  Remedies
  Cumulative

  	
   

  
	
   

  	
  12.4.

  	
  Remedies Not
  Waived

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Registration,
  Exchange, and Transfer of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Lost,
  Stolen, Damaged and Destroyed Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


iii

















 


	
  15.

  	
  Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1.

  	
  Appointment
  and Authorization

  	
   

  
	
   

  	
  15.2.

  	
  The
  Collateral Agent and Affiliates

  	
   

  
	
   

  	
  15.3.

  	
  Action by
  the Collateral Agent

  	
   

  
	
   

  	
  15.4.

  	
  Consultation
  with Experts

  	
   

  
	
   

  	
  15.5.

  	
  Liability of
  the Collateral Agent

  	
   

  
	
   

  	
  15.6.

  	
  Indemnification

  	
   

  
	
   

  	
  15.7.

  	
  Right to
  Request and Act on Instructions

  	
   

  
	
   

  	
  15.8.

  	
  Credit
  Decision

  	
   

  
	
   

  	
  15.9.

  	
  Collateral
  Matters

  	
   

  
	
   

  	
  15.10.

  	
  Agency for
  Perfection

  	
   

  
	
   

  	
  15.11.

  	
  Notice of
  Default

  	
   

  
	
   

  	
  15.12.

  	
  Successor
  Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1.

  	
  Amendment and
  Waiver

  	
   

  
	
   

  	
  16.2.

  	
  Expenses

  	
   

  
	
   

  	
  16.3.

  	
  Survival of
  Representations and Warranties

  	
   

  
	
   

  	
  16.4.

  	
  Successors
  and Assigns; Assignment of Notes

  	
   

  
	
   

  	
  16.5.

  	
  Notices

  	
   

  
	
   

  	
  16.6.

  	
  Indemnification

  	
   

  
	
   

  	
  16.7.

  	
  Confidentiality

  	
   

  
	
   

  	
  16.8.

  	
  Setoff

  	
   

  
	
   

  	
  16.9.

  	
  Usury
  Limitations

  	
   

  
	
   

  	
  16.10.

  	
  Punitive
  Damages

  	
   

  
	
   

  	
  16.11.

  	
  Integration
  and Severability

  	
   

  
	
   

  	
  16.12.

  	
  Counterparts

  	
   

  
	
   

  	
  16.13.

  	
  Contingent
  Payment

  	
   

  
	
   

  	
  16.14.

  	
  Governing
  Law

  	
   

  
	
   

  	
  16.15.

  	
  Submission
  to Jurisdiction; Waiver of Service and Venue

  	
   

  
	
   

  	
  16.16.

  	
  Waiver of
  Right to Trial by Jury

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signatures

  	
   

  



 


 


iv

















 


SCHEDULES


 


	
  Schedule 4.6

  	
  —

  	
  Consents

  
	
  Schedule 4.7

  	
  —

  	
  Equity Interests

  
	
  Schedule 4.8(c)

  	
  —

  	
  Projections

  
	
  Schedule 4.8(d)

  	
  —

  	
  Pro Forma Balance Sheet

  
	
  Schedule 4.8(e)

  	
  —

  	
  Material Changes

  
	
  Schedule 4.9

  	
  —

  	
  Subsidiaries

  
	
  Schedule 4.10

  	
  —

  	
  Litigation

  
	
  Schedule 4.12

  	
  —

  	
  Real Property; Leases

  
	
  Schedule 4.14

  	
  —

  	
  Labor Matters

  
	
  Schedule 4.15

  	
  —

  	
  Environmental Matters

  
	
  Schedule 4.16

  	
  —

  	
  ERISA

  
	
  Schedule 4.17

  	
  —

  	
  Material Contracts

  
	
  Schedule 4.18

  	
  —

  	
  Insurance

  
	
  Schedule 4.20(b)

  	
  —

  	
  Patents, Trademarks and Copyrights

  
	
  Schedule 4.20(c)

  	
  —

  	
  Licenses

  
	
  Schedule 4.20(e)

  	
  —

  	
  Company Intellectual Property

  
	
  Schedule 4.21

  	
  —

  	
  Software

  
	
  Schedule 4.22

  	
  —

  	
  Deposit Accounts; Securities Accounts

  
	
  Schedule 4.24

  	
  —

  	
  Related Party Transactions

  
	
  Schedule 4.25

  	
  —

  	
  Registration Rights

  
	
  Schedule 4.27

  	
  —

  	
  Existing Indebtedness and Contingent
  Obligations

  
	
  Schedule 4.28

  	
  —

  	
  Customers

  
	
  Schedule 4.35

  	
  —

  	
  Broker’s and Finder’s Commissions

  



 


 


iv

















 


EXHIBITS


 


	
  Exhibit
  A

  	
   

  	
  —

  	
   

  	
  Form of Note

  
	
  Exhibit B

  	
   

  	
   

  	
   

  	
  Form of Pledge and Security Agreement

  
	
  Exhibit C

  	
   

  	
  —

  	
   

  	
  Form of Subsidiary Guarantee

  
	
  Exhibit D

  	
   

  	
  —

  	
   

  	
  Form of Assignment Agreement

  
	
  Exhibit E

  	
   

  	
  —

  	
   

  	
  Form of Compliance Certificate

  



 


 


v

















 


 


NOTE
PURCHASE AGREEMENT


 


 


                NOTE PURCHASE AGREEMENT (this “Agreement”) dated as of September
16, 2005, by and among GENUTEC BUSINESS SOLUTIONS, INC., a Montana corporation
(the “Company”), TECHNOLOGY
INVESTMENT CAPITAL CORP., a Maryland corporation, as Collateral Agent (together
with its successors and assigns in such capacity, the “Collateral
Agent”), and each of those persons and entities, severally and
not jointly, whose names are set forth on the Schedule of Purchasers attached
hereto as Schedule I
(collectively, together with their respective successors and assigns, the “Purchasers” and each
individually as a “Purchaser”).


 


RECITALS


 


WHEREAS, pursuant to a Preferred Stock and Warrant Purchase Agreement
of even date herewith among the Company and the Purchasers (the “Stock Purchase Agreement”), the
Company has agreed to issue and sell to the Purchasers, in the respective
amounts set forth in the Stock Purchase Agreement, (i) an aggregate of 20,000
shares of its Series A Exchangeable Preferred Stock, par value $.0001 per share
(the “Preferred Shares”), and (ii)
Warrants (as hereinafter defined) initially
exercisable to purchase an aggregate of 1,167,000 shares of the Company’s Class
A voting common stock, par value $.01 per share (in each case, net of amounts
to be repurchased by the Company from one of the Purchasers upon such sale to
the other Purchaser), all for the consideration and upon the terms and
conditions provided in the Stock Purchase Agreement; and


 


                WHEREAS, Section 2.2 of this
Agreement provides that, upon exercise by the Majority Purchasers (as defined
in the Stock Purchase Agreement) of the Exchange Option (as hereinafter
defined), the Company has agreed to issue and sell to the Purchasers, in
exchange for any or all of the Preferred Shares held by them, pursuant to the
terms of this Agreement, Notes (as hereinafter defined) at the rate of $1,000
principal amount of such Notes in exchange for each Preferred Share;


 


                NOW, THEREFORE, in consideration
of the foregoing recitals and the mutual covenants and agreements contained
herein, the parties hereto agree as follows:


 


Section 1.               Definitions.


Section 1.1.            Defined
Terms.   For the purposes of this Agreement, the
following terms shall have the
following respective meanings:


“Acceptable Bank” means any
commercial bank organized under the laws of the United States of America or any
state thereof that (a) has capital, surplus and undivided profits aggregating
at least $500,000,000 and (b) issues (or the parent of which issues)
certificates of deposit or commercial paper rated A-1 by S&P and P-1 by
Moody’s.


vi

















 


“Accountants” means Stonefield
Josephson & Company or any other nationally or regionally recognized firm
of independent certified public accountants hereafter selected from time to
time by the Company and reasonably acceptable to the Majority Purchasers.


“Acquisition Agreement” means the
Amended and Restated Agreement and Plan of Merger dated as of September 14,
2005 among SDI, the SDI Stockholder, SDIAC, SALLC, the Company and Ion
Automation Services BV, as such agreement may from time to time be amended,
modified or supplemented in accordance with its terms.


“Acquisition Consideration” means the
aggregate consideration payable by the Company and its Subsidiaries in connection
with any Permitted Acquisition, to include (a) all cash, notes or other
evidence of Indebtedness, fair market value of assets and fair market value of
Equity Interests, whether payable at the closing of such acquisition or
thereafter through “earnouts” or otherwise, but excluding (b) any liabilities
assumed by the Company or its Subsidiaries in connection with such Permitted
Acquisition or to which any Person thereby acquired is subject immediately
following such acquisition.


“Acquisition Documents” has the
meaning specified in Section 4.36.


“Acquisition Transactions” means
collectively the transactions contemplated by the Acquisition Agreement,
including the acquisition by the Company of all of the outstanding capital
stock of SDI pursuant to a merger of SDIAC with and into SDI as provided
therein, the transfer to SDI of the assets of SBN relating to the Business, and
the subsequent merger of SDI with and into SALLC as provided therein.


“Additional Rate” means a rate per
annum equal to: (i) 0.0%, if a Qualified Equity Financing shall occur on or
prior to March 16, 2006, (ii) 1.0%, if a Qualified Equity Financing shall not
occur on or prior to March 16, 2006 but shall occur on or prior to June 16,
2006, or (iii) 1.5%, if a Qualified Equity Financing shall not occur on or
prior to June 16, 2006.


“Affiliate” means, as to any Person,
any Person which directly or indirectly Controls, is controlled by, or is under
common control with such Person.  For
purposes of this definition, “Control” of
a Person means the power, direct or indirect, (i) to vote or direct the
voting of 5% or more of the outstanding shares of Voting Equity Interests of
such Person, or (ii) to direct or cause the direction of the management
and policies of such Person whether by ownership of Voting Equity Interests, by
contract or otherwise.  “Controlling” and “Controlled” have meanings
correlative thereto.  Notwithstanding the
foregoing, for purposes of this Agreement and the other Note Documents, none of
the Collateral Agent, the Purchasers or their respective Affiliates shall be
deemed to be Affiliates of the Company or its Subsidiaries.


“After Acquired Real Property” has
the meaning specified in Section 9.7.


“Applicable Interest Rate” means (a)
with respect to the Initial Interest Rate Period, a rate per annum equal to
9.0%; provided that (i) if a Qualified Equity Financing shall not occur
on or prior to March 16, 2006, then effective as of that day the Applicable
Interest Rate shall increase to 10.0% per annum and (subject to the provisions of
the immediately following clause 


 


2

















 


(ii)) shall remain at such rate for the remainder of the Initial
Interest Rate Period, and (ii) if a Qualified Equity Financing shall not occur
on or prior to June 16, 2006, then effective as of that day the Applicable
Interest Rate shall increase to 10.5% per annum and shall remain at such rate
for the remainder of the Initial Interest Rate Period; and (b) with respect to
any Interest Rate Period thereafter, a rate per annum equal to the sum of (i)
LIBOR for such Interest Rate Period plus (ii) 5.25% plus (iii)
the applicable Additional Rate; provided that in no event shall the
Applicable Interest Rate for any Interest Rate Period subsequent to the Initial
Interest Rate Period be less than the sum of 8.0% per annum plus the
applicable Additional Rate or greater than the sum of 11.0% per annum plus
the applicable Additional Rate.


“Assignment Agreement” means an
agreement substantially in the form of Exhibit D.


“Attributable Indebtedness” means, on
any date, (a) in respect of any Capitalized Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in the case of any Sale and Leaseback Transaction, the present value
(discounted in accordance with GAAP at the debt rate implied in the applicable
lease) of the obligations of the lessee for rental payments during the term of
such lease, and (c) in respect of any
Synthetic Lease, the capitalized amount of the remaining lease payments under
the relevant lease that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP if such lease were accounted for as a
Capitalized Lease.


“Audited Financial Statements” has
the meaning specified in Section 4.8(a).


“Bankruptcy Code” means 11 U.S.C.
Sec. 101 et seq., as from time to time hereafter amended, and any successor or
similar statute.


“Business” means the business of
providing call messaging products and services to businesses, organizations,
governments and governmental instrumentalities, and activities incident or
related thereto.


“Business Day” means any day except a
Saturday, a Sunday or a legal holiday in New York City.


“Call Securities” has
the meaning specified in Section 4.7(a).


“Capital Expenditures” means, for any
Person, with respect to any period, the aggregate of all expenditures of such
Person during such period for the construction, acquisition or leasing
(pursuant to a Capitalized Lease) of property, plant, equipment or other fixed
assets or intangibles (including capitalized software expenditures), including
additions thereto and capitalized repairs and improvements, and which are or
are required to be capitalized on the consolidated balance sheet of such Person
in accordance with GAAP.


“Capitalized Lease” means, as to any
Person, any lease of any property (whether real, personal or mixed) by such
Person as lessee that, in accordance with GAAP, is or is required to be
accounted for as a capital lease on the balance sheet of such Person.


 


3

















 


“Capitalized Lease Obligation” means,
as to any Person, all obligations of such Person under any leasing or similar
arrangement constituting a Capitalized Lease and, for purposes of the Note
Documents, the principal amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.


“Cash”
means money (in Dollars), currency (in Dollars) or a credit balance in any
Deposit Account maintained with an Acceptable Bank.


“Cash Equivalents” means


(a)           marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States
of America, in each case maturing within one year from the date of acquisition
thereof;


(b)
          commercial paper of an issuer
rated at least A-1 by S&P or P-1 by Moody’s, or (if both of the two named
rating agencies cease publishing ratings of commercial paper issuers generally)
carrying an equivalent rating by a nationally recognized statistical rating
organization, which is issued by a Person (other than the Company or an
Affiliate of the Company) organized under the laws of any state of the United
States or of the District of Columbia, and matures within nine months after the
date of acquisition thereof;


(c)
          certificates of deposit or
bankers’ acceptances maturing not more than one year after the date of
acquisition thereof issued by any Acceptable Bank; and


(d)           repurchase obligations of any
Acceptable Bank, having a term of not more than 30 days, for, and secured by,
underlying securities of the types (without regard to maturity) described in
clauses (a) and (c) above.


“Certified” when used with respect to
any financial information of any Person to be certified by any of its officers,
indicates that such information is to be accompanied by a certificate to the
effect that such financial information has been prepared in accordance with
GAAP consistently applied, subject in the case of interim financial information
to normal year-end audit adjustments and absence of the footnotes
required by GAAP, and presents fairly, in all material respects, the
information contained therein as at the dates and for the periods covered
thereby.


“Change of Control” means, and shall
be deemed to have occurred, if at any time (a) any Person or a group (within
the meaning of Sections 13(d) or 14(d)(2) of the Exchange Act), other than Lee
J. Danna or the SDI Stockholder, becomes the “beneficial owner” (as defined in
Rule 13d-3 promulgated under the Exchange Act) of more than 20% of the total
outstanding shares of Voting Stock of the Company (other than an underwriter or
underwriters in connection with a public offering of such stock), (b)
Continuing Directors shall not constitute a majority of the elected and acting
members of the board of directors of the Company, or (c) the Company shall fail
to own, directly or indirectly through its Wholly-owned Subsidiaries, 100% of
the 


 


4

















 


outstanding Equity Interests of any Person that is a Subsidiary of the
Company on the Closing Date.


“Closing Date” means September 16,
2005.


“Code” means the Internal Revenue
Code of 1986, as amended.


“Collateral” means, collectively, all
assets and property of the Company and the Company’s Subsidiaries in which any
of such Persons is granting or may hereafter grant a Lien or security interest
to the Collateral Agent pursuant to the Security Documents.


“Combined Investment” has the meaning
specified in Section 16.13(b).


“Common Equity Interests” means, with
respect to any Person, any class of capital stock or other Equity Interests of
such Person which is not entitled to any preference or priority over any other
class of Equity Interests of such Person with respect to the distribution of
such Person’s assets, whether upon the declaration or payment of dividends, or
upon liquidation or dissolution, or otherwise.


“Company” means GenuTec Business
Solutions, Inc., a Montana corporation, and any successor thereto resulting
from a Permitted Change of Jurisdiction.


“Company Common Stock” means the
Class A voting common stock, par value $.01 per share, of the Company.


“Company Intellectual Property” has
the meaning specified in Section 4.20(a)


“Company  Preferred
Stock” means the preferred stock, par value $.0001 per share, of
the Company, including the Preferred Shares and any other series thereof.


“Compliance Certificate” means, for
any fiscal quarter of the Company, an Officer’s Certificate of the Company
properly completed as of the last day of such fiscal quarter and signed by the
Chief Financial Officer of the Company, substantially in the form set forth in Exhibit E.


“Confidential Information” has the
meaning specified in Section 16.7.


“Consolidated EBITDA” means, for any
period, the sum of (a) Consolidated Net Income (Loss) plus (b) in
each case to the extent deducted in determining such Consolidated Net Income
(Loss), the sum of (i) Consolidated Interest Expense, plus
(ii) Consolidated Income Tax Expense, plus (iii) depreciation
expense, plus (iv) amortization expense, plus (v) all other
non-cash expenses and charges, minus (c) capitalized software
development costs to the extent not deducted in determining Consolidated Net
Income (Loss) and minus (d) to the extent included in determining
Consolidated Net Income (Loss), all other non-cash items of income or gain, all
as determined with respect to the Company and its Subsidiaries for such period
on a consolidated basis in accordance with GAAP.


 


5

















 


“Consolidated Income Tax Expense”
means, for any period, the amount which, in accordance with GAAP, should be
shown as provision for current and deferred federal and state income taxes on a
consolidated statement of operations of the Company and its Subsidiaries for
such period.


“Consolidated Interest Expense”
means, for any period, all amounts which, in accordance with GAAP, should be
included as interest expense on a consolidated statement of operations of the
Company and its Subsidiaries for such period, and including in any event
interest accrued on the Notes, that portion of any Capitalized Lease
Obligations attributable to interest expense in accordance with GAAP, debt
issuance costs, capitalized interest paid during such period, all commissions,
discounts and other fees and charges accrued with respect to letters of credit
and bankers’ acceptance financing and net costs under Swap Contracts (including
amortization of such costs), all as determined for the Company and its
Subsidiaries on a consolidated basis for such period in accordance with GAAP.


“Consolidated Net Income (Loss)”
means, for any period, the net income (or loss) of the Company and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period, determined in accordance with GAAP; provided that in
determining Consolidated Net Income (Loss) there shall be excluded (i) the
income (or loss) of any Person which is not a Subsidiary of the Company, except
to the extent of the amount of dividends or other distributions actually paid
to the Company or its Subsidiaries by such Person during such period,
(ii) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Company or is merged into or consolidated with the
Company or any of its Subsidiaries or that Person’s assets are acquired by the
Company or any of its Subsidiaries, (iii) the proceeds of any life
insurance policy, (iv) gains (but not losses) from the sale or other
Disposition of property or assets not in the ordinary course of business of the
Company and its Subsidiaries, (v) any other extraordinary or non-recurring
gains (but not losses) of the Company or its Subsidiaries, and (vi) the income
of any Subsidiary of the Company to the extent that the declaration or payment
of dividends or similar distributions by that Subsidiary of that income is not
at the time permitted by operation of the terms of its charter or of any
agreement, instrument or Requirement of Law applicable to that Subsidiary.


“Consolidated Revenues” means, for
any period, the consolidated net revenues of the Company and its Subsidiaries
(after giving effect to all proper refunds, chargebacks, credits and reserves
for such period), determined for such period on a consolidated basis in
accordance with GAAP.


“Consolidated Total Indebtedness”
means, as of any date of determination, the aggregate amount of outstanding
Funded Indebtedness of the Company and its Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.


“Contingent Obligation” means, as to
any Person, any direct or indirect liability of that Person, with or without
recourse, guaranteeing or intended to guarantee any Indebtedness, lease, dividend
or other monetary obligation (the “primary obligation”) of another Person (the “primary
obligor”) in any manner, including any obligation of that Person (a) to
purchase, repurchase or otherwise acquire such primary obligation or any
security therefor, (b) to advance or provide 


 


6

















 


funds for the payment or discharge of any such primary obligation or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (d) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof. The
amount of any Contingent Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder), as determined by such Person in good
faith.  Notwithstanding the foregoing,
the term “Contingent Obligation” shall not include endorsements of instruments
for deposit or collection in the ordinary course of business.


“Continuing Director” means an individual
(a) who was a member of the board of directors of the Company on the Closing
Date, or (b) who at any time after the Closing Date is nominated or elected to
be a member of the board of directors of the Company by a majority of the
Continuing Directors at the time in office.


“Control,” “Controlling”
and “Controlled” have the meanings
specified in the definition of “Affiliate.”


“Control Agreement” means (a) an
agreement among the Collateral Agent, the Company or any of its Subsidiaries,
and (i) the issuer of uncertificated securities with respect to
uncertificated securities in the name of the Company or any of its
Subsidiaries, or (ii) a securities intermediary with respect to
securities, whether certificated or uncertificated, securities entitlements and
other financial assets held in a Securities Account in the name of the Company
or any of its Subsidiaries, or (b) an agreement with respect to one or more
Deposit Accounts now or hereafter maintained by the Company or any of its
Subsidiaries, among the Company or the Subsidiary maintaining such Deposit
Account (as the case may be), the bank or other depositary institution at which
such Deposit Account is maintained, and the Collateral Agent, whereby, among
other things, such bank or other depositary institution disclaims or
subordinates any security interest in the applicable Deposit Account and the
funds held therein, acknowledges the security interest of the Collateral Agent
in such Deposit Account and the funds held therein, and agrees to follow the
instructions of the Collateral Agent with respect to such Deposit Account and
the funds held therein without further consent by the Company or its Subsidiary
(as the case may be).


“Convertible Securities”
has the meaning specified in Section 4.7(a).


“Copyright” means, with respect to
any Person, all of the following in which such Person now holds or hereafter
creates or acquires any interest: 
(a) all copyrights and intangible property of like nature (whether
registered or unregistered), including manuscripts, documents, writings,
derivative works, tapes, disks, storage media, computer programs, computer
databases, computer program flow diagrams, source codes, object codes,
semiconductor chip product mask works, and all tangible property embodying or
incorporating the Copyrights, all registrations and 


 


7

















 


recordings thereof, and all applications in connection therewith,
including all registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United States, any
state or territory thereof, or any other country or any political subdivision
thereof; (b) all reissues, extensions and renewals thereof; and (c) all
income, royalties, damages and payments now and hereafter due or payable under
or with respect to any of the foregoing, including damages and payments for
past, present and future infringements of any Copyright and the right to sue
for past, present and future infringements of any Copyright.


“Copyright License” means, with
respect to any Person, any and all rights now owned or hereafter acquired by
such Person under any written agreement granting any right to use any Copyright
or registration thereof, including any sublicense thereof.


“Copyright Security Agreement” means
a Copyright Security Agreement in favor of the Collateral Agent, substantially
in the form of Exhibit I to the Security
Agreement.


“Default” means any event or
condition which, with due notice or lapse of time or both, would become an
Event of Default.


“Deposit Account” means a deposit
account, as such term is defined in Section 9-102 of the Uniform Commercial
Code.


“Dispose” means, with respect to any
assets or property of any Person, to sell, convey, transfer, exchange, lease,
encumber or otherwise dispose of, such assets or property (including any
involuntary disposition by eminent domain or otherwise), and “Disposition” has a corresponding
meaning.


“Disqualified Redeemable Stock” means
any Company Common Stock or Company Preferred Stock which is Redeemable Stock
and which, under the terms of the Organizational Documents of the Company or
any agreement, instrument or other document to which the Company is a party or
by which it is bound, is mandatorily required to be purchased or acquired, or
may at the option of the holder thereof be required to be purchased or
acquired, by the Company or any of its Subsidiaries at any time prior to the 91st
consecutive day following the Maturity Date.


“Dollars” and “$”
means lawful money of the United States of America.


“Eligible Assignee” means (i) a
Purchaser, (ii) an Affiliate of a Purchaser, and (iii) any other Person (other
than a natural person) approved by the Majority Purchasers.


“Employment Agreements” means the
collective reference to the employment agreement between SDI and the SDI
Stockholder entered into on or about the Closing Date pursuant to the
provisions of the Acquisition Agreement, the currently existing employment
agreements between the Company and each of Lee J. Danna, Farzad Hoorizadeh and
Matthew Pekarek, and the currently existing consulting agreement between the
Company and Tony Tseng.


“Environmental Laws” means any and
all federal, state, local, and foreign statutes, ordinances, codes, treaties,
licenses, laws, rules, regulations, per­mits, concessions, grants, 


 


8

















 


franchises, agreements and governmental restrictions relating to
pollution, the protection of the environment or the generation, treatment,
storage, use, maintenance, recycling, transportation, release or disposal of
Hazardous Materials, including the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Emergency Planning and Community Right to Know Act, the Safe Drinking Water
Act, the Solid Waste Disposal Act, the Hazardous Materials Transportation Act,
the Clean Air Act, the Clean Water Act, the Federal Insecticide, Fungicide and
Rodenticide Act, the Noise Control Act, the Occupational Safety and Health Act,
the Toxic Substances Control Act, any so-called “Superfund” or “Superlien” law,
and any rule or regulation promulgated under any of the foregoing, all as now
or at any time hereafter may be in effect.


“Environmental Matter” means any
claim, investigation, litigation or administrative proceeding, whether pending
or threatened, or Order, asserted, arising or entered under or pursuant to any
Environmental Law, or relating to any Hazardous Materials, in each case against
or affecting the Company or any of its Subsidiaries, their respective
operations, or any properties owned, leased or used by any of them.


“Environmental Permit” has the
meaning specified in Section 4.15(b).


“Equity
Interests” means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether voting or nonvoting) of capital stock,
including each class of common stock and preferred stock of such Person, and
(ii) with respect to any Person that is not a corporation, any and all general
partnership interests, limited partnership interests, membership or limited
liability company interests, beneficial interests or other equity interests of
or in such Person (including any common, preferred or other interest in the
capital or profits of such Person, and whether or not having voting or similar
rights).


“ERISA” means the Employee Retirement
Income Security Act of 1974, as from time to time amended.


“ERISA Affiliate” means any trade or
business (whether or not incorporated) under common control with the Company
within the meaning of Section 414(b), 414(c), 414(m) or 414(o) of the Code
or Section 4001 of ERISA.


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company
or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA); (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a plan amendment as a termination under Section
4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) a failure by the
Company or any ERISA Affiliate to make required contributions to a Pension Plan
or Multiemployer Plan; (f) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer 


 


9

















 


Plan; (g) the imposition of any liability under Title IV of ERISA,
other than PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Company or any ERISA Affiliate; (h) an application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Code with respect to any Plan; (i) a non-exempt prohibited transaction
occurs with respect to any Plan for which the Company or any Subsidiary of the
Company may be directly or indirectly liable; or (j) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Code by any fiduciary or disqualified person
with respect to any Plan for which the Company or any ERISA Affiliate may be
directly or indirectly liable.


“ESOP” means a Plan that is intended
to satisfy the requirements of Section 4975(e)(7) of the Code.


“Event of Default” has the meaning
specified in Section 12.1.


“Exchange Act” means as of any date
the Securities Exchange Act of 1934, as amended, or any similar federal statute
then in effect, and a reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar federal
statute.


“Exchange Date” has the meaning
specified in Section 2.2(a).


“Exchange Option” has the meaning
specified in Section 2.2(a).


“Existing Financial Statements” has
the meaning specified in Section 4.8(a).


“Funded Indebtedness” with respect to any
Person means, without duplication:


(a)           all indebtedness of such Person for
borrowed money, including the Obligations;


(b)           all indebtedness or obligations of
such Person evidenced by bonds, debentures, notes or similar written
instruments;


(c)           any obligation incurred for all or
any part of the purchase price of property or services (other than trade
accounts payable incurred in the ordinary course of business);


(d)           the principal portion of all
obligations under conditional sale or other title retention agreements relating
to property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business);


(d)           all reimbursement obligations of such
Person (whether contingent or otherwise) in respect of letters of credit, bank
guarantees, bankers’ acceptances, surety or other bonds and similar
instruments;


 


10

















 


(e)           all Funded Indebtedness of others
secured by (or for which the holder of such Funded Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed;


(g)           the Attributable Indebtedness of
Capitalized Leases, Sale and Leaseback Transactions and Synthetic Leases of
such Person;


(h)           all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Redeemable Stock in such Person or any other Person, valued, in the case of
any Redeemable Stock that is a Preferred Equity Interest, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends;


(i)            all Contingent Obligations of such
Person in respect of Indebtedness of any other Person of the types referred to
in any of the foregoing clauses (a) through (h); and


(j)
           all Indebtedness, of the types
referred to in any of the foregoing clauses (a) through (i), of any partnership
or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to such
Person.


 “GAAP” means
generally accepted accounting principles as in effect from time to time in the
United States of America, applied on a consistent basis both as to
classification of items and amounts.


“Governmental Authority” means any
nation or government, any state, province, county, city, municipality, town,
village, department or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, administrative tribunal or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (including any central
bank or similar monetary or regulatory authority), and any corporation or other
entity owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.


“Hazardous Material” means:


(a)           any “hazardous substance” as defined
in, or for purposes of, the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C.A. §§ 9601 & 9602, as may be amended from time
to time, or any other so-called “superfund” or “superlien” law and any
judicial interpretation of any of the foregoing;


(b)           any “regulated substance” as defined
pursuant to 40 C.F.R. Part 280;


(c)           any “pollutant or contaminant” as
defined in 42 U.S.C.A. § 9601(33);


 


11

















 


(d)           any “hazardous waste” as defined in,
or for purposes of, the Resource Conservation and Recovery Act;


(e)           any “hazardous chemical” as defined
in 29 C.F.R. Part 1910;


(f)            any “hazardous material” as defined
in, or for purposes of, the Hazardous Materials Transportation Act; and


(g)           any other hazardous or toxic
substance, waste or other pollutant that is regulated pursuant to, or may be
basis for liability under, any Environmental Law, whether in the form of a
solid, liquid, gas, odor, pathogen or form of energy, from whatever source,
including, but not limited to, explosive or radioactive substances or wastes,
petroleum or any distillate thereof, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, and infectious or medical wastes.


“Indebtedness” with respect to any
Person means, without duplication:


(a)           all Funded Indebtedness of such
Person;


(b)           the Swap Termination Value with
respect to such Person of any Swap Contract to which such Person is a party;


(c)           all Contingent Obligations of such
Person in respect of Indebtedness of any other Person of the types referred to
in any of the foregoing clauses (a) and (b); and


(d)
          all Indebtedness, of the types
referred to in any of the foregoing clauses (a) through (c), of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.


“Initial Interest Rate Period” means
the period from and including the Exchange Date to but not including the first
Interest Rate Adjustment Date occurring thereafter.


“Initial Public Offering”
means the initial underwritten public offering by the Company of its common
stock for cash pursuant to an effective registration statement under the
Securities Act, other than a registration relating solely to employee benefit
plans or solely to a transaction described in Rule 145(a) of the SEC.


“Intellectual Property” means, with
respect to any Person, any and all of the following now owned or hereafter
created or acquired by such Person: (a) Patents, Trademarks, Copyrights and
Licenses; (b) systems software and application software (including the
Proprietary Software), source code, object code, screen displays and formats,
program structures, sequence and organization, and all documentation for such
software, including user manuals, flow charts, logic diagrams, programmers’
notes, functional specifications, operations manuals, guides, formulas,
processes, ideas and know-how embodied in or created in connection with any of
the foregoing, whether or not patentable or copyrightable; (c) concepts,
discoveries, improvements and ideas, whether or not patentable or
copyrightable; (d) all other know-how, technology, engineering 


 


12

















 


drawings, diagrams, designs, design information, trade secrets,
formulas, processes, procedures, customer lists, databases, practices,
laboratory notebooks, specifications, test procedures, maintenance manuals,
research, reports, URLs, domain names, and other manufacturing, marketing,
merchandising, selling, purchasing or accounting materials, data or
information; and (e) all goodwill associated with the items described in the
foregoing clauses (a), (b), (c) and (d).


“Interest Rate Period” means (a)
the Initial Interest Rate Period and (b) each successive period from and
including an Interest Rate Adjustment Date to but not including the next
succeeding Interest Rate Adjustment Date.


“Interest Rate
Adjustment Date” means (a) August 31, 2006, and (b) the last
Business Day of August in each year thereafter during the term of this
Agreement.


“Interim Financial Statements” has
the meaning specified in Section 4.8(a).


“Internal Revenue Service” means the
United States Internal Revenue Service and any successor or similar agency
performing similar functions.


“Inventory” means all goods,
merchandise and other personal property which are held for sale or lease or
consignment or to be furnished under a contract of service, or are raw
materials, work in process or material used or consumed, or to be used or
consumed, in the business of the Company and its Subsidiaries.


“Investment” when used with reference
to any investment of the Company or any of its Subsidiaries means any
investment so classified under GAAP, and, whether or not so classified,
includes (a) any Indebtedness owed by any Person to the Company or to any
such Subsidiary, (b) any Contingent Obligation of the Company or any such
Subsidiary with respect to Indebtedness or other obligations of any Person, and
(c) any Equity Interests in any Person held by the Company or any such
Subsidiary; and the amount of any Investment shall be the original principal or
capital amount thereof less all cash returns of principal or equity thereof
(and without adjustment by reason of the financial condition of such other
Person).


“Investment Company Act” means the
Investment Company Act of 1940, as amended, or any similar federal statute at
the time in effect, and a reference to a particular section thereof shall include
a reference to the comparable section, if any, of any such similar federal
statute.


“Landlord Agreement”
means an agreement reasonably satisfactory to the Collateral Agent between the
Collateral Agent and the owner and landlord (“owner”) of any real estate leased
by the Company or any Subsidiary of the Company pursuant to which (i) such
owner agrees to give the Collateral Agent reasonable access to the leased
properties in order to permit the exercise of remedies by the Collateral Agent
with respect to Collateral located therein (including rights of removal upon an
Event of Default) and (ii) if the leasehold interest of the Company or such
Subsidiary is subject to a Mortgage, such owner recognizes and consents to the
Lien of the Collateral Agent pursuant to such Mortgage and agrees to the
exercise of rights and remedies by the Collateral Agent with respect to the
leasehold interest upon and during the continuance of an Event of Default.


 


13

















“LIBOR” means, with respect to any
Interest Rate Adjustment Date, the one year “London Interbank Offered Rates
(LIBOR)” published in The Wall Street Journal (Eastern Edition) in the “Money
Rates” table on the Business Day immediately preceding such Interest Rate Adjustment Date, or, if such
information is no longer published by The Wall Street Journal or is not
available for such date, by reference to comparable information contained in
any other publicly available source of similar market data selected by the
Majority Purchasers in their sole discretion.


 “License”
means, with respect to any Person, any Patent License, Trademark License,
Copyright License, or other license or sublicense of rights or interests
(including any license of rights to manufacture, use, reproduce, market or sell
any computer hardware or other equipment, software, technology, trade secrets,
know-how, customer lists, databases or other materials, data or information)
now held or hereafter created or acquired by such Person, whether as licensor
or licensee, as the same may from time to time be amended, modified, renewed or
extended.


“Lien” means any security interest,
mortgage, pledge, lien, claim, charge, encumbrance, conditional sale or title
retention agreement, or lessor’s interest under a Capitalized Lease or
analogous instrument, in, of or on any of a Person’s property (whether held on
the date hereof or hereafter acquired).


“Liquidity Event”
means any of the following: (i) a Sale of the Company, (ii) an Initial Public
Offering, or (iii) a Change of Control.


“Listed Intellectual Property” has
the meaning specified in Section 4.20(b).


“Majority Holders” has the meaning
specified in Section 2.2(a).


“Majority Purchasers” means at any
time Purchasers holding a majority in principal amount of the Notes then
outstanding.


“Make-Whole Amount” has the meaning
specified in Section 16.13(a).


“Margin Stock” means “margin stock”
as such term is defined in Regulation T, U 
or X of the Board of Governors of the Federal Reserve System.


“Market Price” has the meaning
specified in Section 16.13(c).


“Material Adverse Effect” means any
change or changes or effect or effects that individually or in the aggregate
are or are likely to be materially adverse to (i) the assets, business,
operations, income, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, (ii) the legality, validity
or enforceability of this Agreement or any of the other Note Documents or (iii)
the ability of the Company and its Subsidiaries to fulfill their Obligations
under this Agreement and the other Note Documents.


“Material Contract” means any
agreement or contract (including Licenses, supply agreements, requirements
contracts, customer agreements, franchise agreements, distribution agreements,
joint venture agreements, asset purchase agreements, stock purchase agreements,



 


14

















 


merger agreements, agency or advertising agreements, leases of real or
personal property, credit agreements, loan agreements, security agreements,
mortgages, trust deeds, trust indentures, shareholder agreements, registration
rights agreements, consulting agreements, management agreements, employment
agreements, severance agreements, collective bargaining agreements, tax sharing
agreements, and other contracts, agreements and commitments) to which the
Company or any of its Subsidiaries is a party and which
involves obligations (contingent or otherwise) of, or payments to, the Company
and its Subsidiaries of more than $500,000 in any fiscal year or is otherwise
material to the ongoing business, operations, financial condition or prospects
of the Company and its Subsidiaries taken as a whole.


“Maturity Date” means September 16,
2010.


“Moody’s”
means Moody’s Investors Services, Inc. and any successor that is a nationally
recognized statistical rating organization.


“Mortgage” means a mortgage, deed of
trust, assignment of leases and rents, leasehold mortgage or other security
document on owned real property or a lease of real property of the Company or
any of its Subsidiaries, complying with all necessary local legal requirements
and satisfactory in form and substance to the Collateral Agent, granted
pursuant to Section 9.7.


“Mortgage Documents” means, with
respect to each owned or leased real property with respect to which the Company
or any of its Subsidiaries shall be required to grant a Lien to the Collateral
Agent hereunder, a Mortgage covering such real property or lease of real
property (as the case may be), duly executed by the Company or such Subsidiary
(as the case may be), together with:


(a)           such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording
or filing of such Mortgage and evidence that all mortgage recording taxes,
filing fees and recording charges incurred in connection with the filing or
recording of such Mortgage and the financing statements described in paragraph
(b) below have been paid;


(b)           financing statements covering all
fixtures located on premises subject to the Mortgages, in proper form for recording
in all filing or recording offices that the Collateral Agent may deem
reasonably necessary or desirable in order to create valid and perfected first
priority Liens on the property described therein in favor of the Collateral
Agent;


(c)           an extended coverage title insurance
policy (“Mortgage Policy”) issued to
the Collateral Agent by such title insurer as shall be acceptable to the
Collateral Agent, in such forms, with such endorsements and in such amounts as
shall be reasonably acceptable to the Collateral Agent, insuring such Mortgage
as a valid and perfected Lien on the property described therein, free and clear
of all defects (including, but not limited to, mechanics’ and materialmen’s
liens) and encumbrances, paid for by the Company and providing for such other
affirmative insurance and with such reinsurance with such other title insurers
as the Collateral Agent may deem necessary or desirable and with such 


 


15

















 


affidavits, certificates and instruments of indemnification as shall be
reasonably required to induce the title insurers to issue such Mortgage Policy;


(d)           an ALTA survey, dated not more than
30 days before date of the related Mortgage, certified to the Collateral Agent
and the issuer of the related Mortgage Policy in a manner satisfactory to the
Collateral Agent by a land surveyor duly registered and licensed in the states
in which the property described in such surveys is located and acceptable to
the Collateral Agent, showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces, rights of way,
building set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects
acceptable to the Collateral Agent;


(e)           an appraisal of such real property by
an appraiser satisfactory to the Collateral Agent;


(f)            evidence reasonably satisfactory to
the Collateral Agent that there does not exist any violation of any Requirement
of Law affecting the real property subject to such Mortgage, including those
Requirements of Law relating to zoning, subdivision and building restrictions;


(g)           a Landlord Agreement signed by the
landlord of any real property leased to the Company or any such Subsidiary (as
the case may be);


(h)           copies of all material consents and
approvals required to be obtained by the Company or such Subsidiary (as the
case may be) in connection with the execution and delivery by it of all of the
foregoing Mortgage Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of Liens thereunder; and


(i)            evidence that all other action that
the Collateral Agent may deem reasonably necessary or desirable in order to
create valid and perfected Liens on the property described in such Mortgage has
been taken.


“Mortgage Policy” has the meaning
specified in paragraph (c) of the definition of “Mortgage Documents” herein.


“Multiemployer Plan” means a
multiemployer plan as defined in Section 3(37) or Section 4001(a)(3) of ERISA
or Section 414(f) of the Code contributed to by the Company or any of its ERISA
Affiliates.


“NASD” means the National Association
of Securities Dealers, Inc. or any successor thereto.


“Nasdaq” means The Nasdaq Stock
Market, Inc. and any successor thereto.


“Net Cash Proceeds” means, with
respect to (i) an incurrence by the Company or its Subsidiaries of any
Indebtedness, (ii) the issuance and sale by the Company of any of its Equity 


 


16

















 


Interests, (iii) any sale or other Disposition of any assets or
property of the Company or its Subsidiaries, or (iv) the receipt by the Company
or its Subsidiaries of proceeds of any insurance policy, the aggregate amount
of Cash received by the Company or its Subsidiaries in connection with such
transaction after deduction of all reasonable and customary fees, costs and
expenses directly incurred by the Company or its Subsidiaries in connection
therewith, including reasonable and customary underwriting discount, brokerage
or selling commissions, if any, taxes paid or reasonably anticipated to be
payable as a result of such transaction, and the reasonable fees and
disbursements of counsel paid by the Company or its Subsidiaries in connection
therewith.


“New Subsidiary” has the meaning
specified in Section 9.8.


“Note” has the meaning specified in
Section 2.1(a).


“Note Documents” means collectively
this Agreement, the Notes, the Subsidiary Guarantee, the Security Documents,
and any other instruments or documents now or hereafter executed and delivered
pursuant to or in connection with any of the foregoing.


“Obligations” means all of the
Indebtedness, obligations and liabilities of the Company and its Subsidiaries
under the Note Documents, whether now existing or hereafter created or arising,
direct or indirect, matured or unmatured, and whether absolute or contingent,
joint, several or joint and several, and no matter how the same may be
evidenced or shall arise, including (a) the obligation to pay principal,
interest (including interest accruing after the commencement of any proceeding
referred to in Section 12.1(f) or (g), whether or not allowed as a claim in
such proceeding), charges (including prepayment charges, if any), expenses,
fees, attorneys’ fees and disbursements, indemnities and other amounts payable
by or chargeable to the Company or its Subsidiaries under any Note Document and
(b) the obligations of the Company and its Subsidiaries to reimburse any amount
in respect of any of the foregoing that the Collateral Agent, in its sole
discretion, may elect to pay or advance on behalf of the Company or any
Subsidiary.


“Observer” has the meaning set forth
in Section 8.2.


“Officer’s Certificate” means with
respect to any corporation or other entity, a certificate signed by a Responsible
Officer of the specified corporation or entity.


“Options” has
the meaning specified in Section 4.7(a).


“Order” means any order, writ,
injunction, decree, judgment, award, determination or written direction or
demand of any court, arbitrator or Governmental Authority.


“Organizational Documents” means (a)
with respect to any corporation, the certificate of incorporation, articles of
incorporation or comparable constitutional or charter document, and by-laws, of
such corporation, (b) with respect to any limited liability company, the
certificate of formation or comparable document filed with the Secretary of
State or comparable official of the state of organization of such limited
liability company, and the operating agreement, limited liability company agreement
or comparable constitutive document thereof, (c) with respect to any 


 


17

















 


limited partnership, the certificate of limited partnership or
comparable document filed with the Secretary of State or comparable official of
the state of organization of such limited partnership and the limited
partnership agreement thereof, (d) with respect to any general partnership or
joint venture, the partnership agreement or joint venture agreement relating
thereto, (e) with respect to any trust, the trust agreement or comparable
agreement establishing such trust, or (f) with respect to any other business
entity, the comparable constitutive documents, in each case with all
amendments, modifications and supplements thereto from time to time executed or
filed.


“OTC Bulletin Board” means the
Over-the-Counter Bulletin Board maintained by Nasdaq or the NASD, and any
successor thereto.


“Other Taxes” has the meaning
specified in Section 3.5(b).


“Outstanding on a Fully Diluted Basis”
means, as of any date of determination, with respect to the shares of Company
Common Stock, (a) all shares of Company Common Stock that are issued and
outstanding on such date of determination, and (b) all shares of Company Common
Stock that would be outstanding as of such date of determination assuming (i)
the exercise of all then outstanding Options to subscribe for or purchase
shares of Company Common Stock, (ii) the exercise of all then outstanding
Options to subscribe for or purchase shares of Company Preferred Stock and the
conversion or exchange of all other securities that by their terms are
convertible into or exchangeable for shares of Company Preferred Stock, and
(iii) the conversion or exchange of all then outstanding shares of Company
Preferred Stock or other securities that by their terms are convertible into or
exchangeable for shares of Company Common Stock and all such shares or other
securities that would be outstanding upon the exercise of the options, warrants
and other rights and the conversion or exchange of the other securities
referred to in the foregoing clause (ii) (in each case whether or not such
Options are at the time so exercisable and whether or not such shares of
Company Preferred Stock or other securities are at the time so convertible or
exchangeable).


“Patent” means, with respect to any
Person, all of the following in which such Person now holds or hereafter
creates or acquires any interest: 
(a) all letters patent of the United States or of any other
country, all registrations and recordings thereof, and all applications for
letters patent of the United States or of any other country (including
provisional patent applications), including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State, or any other country;
(b) all reissues, continuations, continuations-in-part and
extensions thereof; and (c) all income, royalties, damages and payments now or
hereafter due and/or payable under or with respect to any Patent, including
damages and payments for past, present and future infringements of any of the
foregoing and the right to sue for past, present and future infringements of
any Patent.


“Patent License” means, with respect
to any Person, rights under any written agreement now owned or hereafter
acquired by such Person granting any right with respect to any invention on
which a Patent is in existence, including any sublicense thereof.


“Patent Security Agreement” means a
Patent Security Agreement in favor of the Collateral Agent, substantially in
the form of Exhibit II to the Security
Agreement.


 


18

















 


“Patriot Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.


“PBGC” means the Pension Benefit
Guaranty Corporation, and any successor agency or Governmental Authority
performing similar functions.


“Pension Plan” means any “employee
pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other
than a Multiemployer Plan, that is subject to Title IV of ERISA or Section 302
of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate
or to which the Company or any ERISA Affiliate contributes or has an obligation
to contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.


“Permitted Acquisition”
means any acquisition (by merger, purchase of assets, purchase of stock or
otherwise) by the Company or any Subsidiary of the Company of all or
substantially all the assets and business of a Person or of a division or line
of business of a Person, or of all of the Equity Interests in a Person, if (a)
both immediately before and immediately after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing or would result
therefrom; (b) such acquired Person or division or line of business is engaged
solely in the Business; (c) if the Equity Interests of a Person are acquired,
(i) such Person shall be organized under the laws of a state of the United
States, (ii) immediately after giving effect to such acquisition, such Person
shall be a Wholly-owned Subsidiary of the Company, and (iii) at the time such
acquisition is completed, all of the requirements of Section 9.8 hereof shall
have been complied with in respect of such Person; (d) the Company shall be in
compliance with the financial covenants set forth in each of Sections 11.2,
11.3, 11.4, 11.5 and 11.6 as of the most recently ended fiscal quarter of the
Company on a pro forma basis, giving effect to such acquisition (without giving
effect to operating expense reductions) as if such acquisition had occurred
immediately prior to the first day of the relevant period for testing
compliance as of such date; (e) the Company shall have delivered to the
Purchasers at least ten (10) Business Days prior to consummation of such
acquisition a written notice of such proposed acquisition containing a general
description thereof and the date of proposed consummation of such acquisition,
accompanied by copies of the definitive agreements and documents governing such
acquisition or final forms thereof and an Officer’s Certificate to the effect
of the matters set forth in clauses (a), (b), (c) and (d) above, together with
all relevant historical financial information for the Person or division or
line of business acquired, and pro forma financial statements and reasonably
detailed calculations demonstrating satisfaction of the requirement set forth
in clause (d) above; (f) if any part of the consideration payable by the
Company or its Subsidiaries in connection with such acquisition shall consist
of promissory notes or other obligations for deferred payment (including by way
of any earnout or other contingent obligation, but excluding obligations
payable solely in shares of Company Common Stock), then each Person who is or
may be entitled to receive such promissory notes or payment rights shall have
executed and delivered to the Purchasers a subordination agreement
subordinating in right of payment the Company’s and its Subsidiaries’
obligations with respect thereto to the Obligations, in a manner and to an
extent satisfactory in all respects to the Majority Purchasers in their sole
discretion; (g) the aggregate fair market value of the assets acquired by the
Company and its Subsidiaries pursuant to such acquisition (directly or
indirectly by acquisition of one or more Persons) shall 


 


19

















 


not be less than the aggregate amount of all liabilities assumed by the
Company or its Subsidiaries in connection with such acquisition or to which any
Person thereby acquired is subject immediately following such acquisition; and
(h) (i) the maximum aggregate amount of Acquisition Consideration payable by
the Company and its Subsidiaries in connection with such acquisition shall not
exceed $1,000,000, and (ii) the maximum aggregate amount of Acquisition
Consideration payable by the Company and its Subsidiaries in connection with
such acquisition, together with the maximum aggregate amount of Acquisition
Consideration payable or paid by the Company and its Subsidiaries in connection
with all Permitted Acquisitions effected prior to the date of such acquisition,
shall not exceed $5,000,000.


 “Permitted Change of
Jurisdiction” means a reincorporation of the Company in Delaware
or Nevada pursuant to a merger of the Company with and into a corporation newly
organized in such other jurisdiction, provided that (a) no Default or
Event of Default shall then have occurred and be continuing, (b) there shall be
no material change as a result of such transaction in (i) the assets,
liabilities, business, operations or financial condition of the Company and its
Subsidiaries, or (ii) the corporate structure of the Company and its
Subsidiaries or the voting powers, designations, preferences, limitations,
restrictions or relative rights of any class or series of the authorized or
outstanding Equity Interests of the Company or any of its Subsidiaries, and (c)
the surviving corporation of such merger shall execute an agreement
satisfactory in form and substance to the Collateral Agent to be bound by all
of the terms and provisions of this Agreement, the Notes, the Security
Agreement and all of the other Note Documents as though an original party
thereto.


“Permitted Lien” has the meaning
specified in Section 10.2.


“Person” means and includes an
individual, a corporation, a partnership, an association, a joint venture, a
limited liability company, a trust, a syndicate, an unincorporated organization
and a Governmental Authority.


“Plan” means an employee benefit plan
(as defined in Section 3(3) of ERISA) which the Company sponsors or maintains
or to which the Company or any ERISA Affiliate may have liability.


“Post-Default Rate” means, for any
period, a rate of interest per annum equal to the sum of (a) the Applicable
Interest Rate in effect during such period plus (b) 5.0%.


“Preferred Equity Interests” means,
with respect to any Person, any class of capital stock or other Equity
Interests of such Person which is entitled to a preference or priority over any
other class of Equity Interests of such Person with respect to any distribution
of such Person’s assets, whether upon the declaration or payment of dividends,
or upon liquidation or dissolution, or otherwise.


“Preferred Shares” has the meaning
specified in the Recitals to this Agreement.


“Projections” means the consolidated
financial projections of the Company and its Subsidiaries for the four years in
the period ending September 30, 2009.


 


20

















 


“Proprietary Software” has the
meaning specified in Section 4.21(a).


“Purchase Money Indebtedness” means
Indebtedness (including Capitalized Lease Obligations) of the Company or any of
its Subsidiaries incurred for the purpose of financing all or any part of the
purchase price or cost of construction or acquisition of property, plant,
equipment or other fixed assets or intangibles (including capitalized software
expenditures), including additions thereto and capitalized repairs and
improvements, used in the business of the Company or such Subsidiary, provided
that such Indebtedness is incurred within one year after such property is
acquired or, in the case of improvements, constructed, and is not secured by
any collateral other than the property so acquired or constructed and any
accessions thereto.


“Purchaser” and “Purchasers”
have the respective meanings specified in the Preamble to this Agreement, and
include any Person which hereafter becomes a Purchaser pursuant to the
provisions of Section 16.4.


“Qualified Equity Financing” means
(a) an Initial Public Offering in which shares of Company Common Stock are
offered and sold for the account of the Company for an aggregate initial
offering price to the public of $10,000,000 or more (a “Qualified
IPO”), or (b) a private offering and sale for cash by the
Company for its own account of shares of Company Common Stock, Company
Preferred Stock that is convertible into Company Common Stock, warrants,
options or rights to subscribe for or purchase such Company Common Stock or
convertible Company Preferred Stock, or any combination of the foregoing, if
(i) the aggregate gross purchase price (before deducting reasonable transaction
expenses) of the securities so offered and sold shall be not less than
$10,000,000, and (ii) at the time such offering is completed, the Company
Common Stock is (A) registered pursuant to Section 12(b) or Section 12(g) of
the Exchange Act and (B) is listed and traded on the New York Stock Exchange,
the American Stock Exchange or Nasdaq or is quoted on the OTC Bulletin Board.


“Qualified IPO” has the meaning
specified in the definition herein of “Qualified Equity Financing.”


“Records” means all of the Company’s
and its Subsidiaries’ right, title and interest in all of their respective
books, records, ledger sheets, invoices, files, tapes, cards, computer runs,
computer programs, computer files and other data and documents, including
records in any form (digital or other), and recorded in or through any tangible
medium (magnetic, lasergraphic or other) and retrievable in perceivable form,
together with all machinery and processes (including computer programming
instructions) required to read and print such records, relating to any property
or assets of the Company or its Subsidiaries.


“Redeemable  Stock”
means, with respect to any Person, any capital stock or other Equity Interest
of any class or series issued or issuable by such Person with respect to which,
pursuant to the Organizational Documents of such Person or by agreement or
otherwise, (a) such Person is or will be required to redeem or repurchase such
capital stock or Equity Interest at a fixed or determinable date or dates,
whether by operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of such Person, (b) such capital stock
or Equity Interest is redeemable at any time at the option of the holder, or
(c) the holder thereof at 


 


21

















 


any time has or will have an option or right to sell or put such
capital stock or Equity Interest to such Person or any of its Subsidiaries.


“Registration Rights Agreement” means
the Registration Rights Agreement dated as of the Closing Date among the
Company and the Purchasers.


“Registration Statement” has the
meaning specified in Section 9.10.


“Release” means any release,
threatened release, spill, emission, leaking, pumping, pouring, emitting,
emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material in the indoor or outdoor
environment, including the movement of Hazardous Material through or in the
air, soil, surface water, ground water or property.


“Reportable Event” means any of the
events set forth in Section 4043(c) of ERISA, other than events for which the
30 day notice has been waived.


“Requirement of Law” means any
statute, ordinance, code, treaty, directive, law, rule or regulation of any
Governmental Authority, and any Order of any court, arbitrator or Governmental
Authority.


“Responsible Officer” means, with
respect to any corporation, any of the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the President, one of the Vice
Presidents, the General Counsel or the Treasurer of such corporation, and, with
respect to any partnership, limited liability company or other type of business
entity, any individual performing comparable management functions with respect
to such entity.


“Restricted Investment” means any
Investment other than:


(a)           any Investment in Cash or Cash
Equivalents;


(b)           any Investment existing on the
Closing Date;


(c)           any Investment made as part of a
Permitted Acquisition; and


(d)           any Investment by the Company in the
Equity Interests of, or loan or advance to or Contingent Obligation with
respect to the obligations of, any Wholly-owned Subsidiary of the Company, and
any Investment by any Wholly-owned Subsidiary of the Company in the Equity
Interests of, or loan or advance to or Contingent Obligation with respect to
the obligations of, any other Wholly-owned Subsidiary of the Company.


“Restricted Payment” means, with
respect to any Person,


(a)           the declaration or payment of any
dividend or other distribution on, or the incurrence of any liability to make
any other payment in respect of, Equity Interests of such Person (other than a
dividend or distribution in respect of Equity Interests that is payable solely
in Equity Interests of the same class or series of such Person);


 


22

















 


(b)           any payment or distribution on
account of the purchase, redemption, defeasance (including in-substance or
legal defeasance) or other retirement of any Equity Interests of such Person,
or of any warrant, option or other right to subscribe for or purchase such
Equity Interests (whether directly or indirectly, and including any purchase or
other acquisition of such Equity Interests, or of any warrant, option or other
right to acquire such Equity Interests, by any Subsidiary of such Person);


(c)           any other payment or distribution by
such Person in respect of its Equity Interests, whether directly or indirectly
or through any Subsidiary of such Person;


(d)           any payment by the Company or any of
its Subsidiaries of management, consulting or similar fees to any Affiliate of
the Company, or of fees or other compensation or benefits to any officer,
director, employee, consultant or agent of the Company or any of its
Subsidiaries, except (i) payments of reasonable fees, compensation and benefits
consistent with past practice, and provision of reasonable indemnification, to
such officers, employees, consultants and agents for actual services rendered
to the Company and its Subsidiaries in the ordinary course of business, all as
determined by the board of directors or senior management of the Company in
good faith, (ii) payments made pursuant to and in accordance with the
provisions of the Employment Agreements, and (iii) payments to directors of the
Company and its Subsidiaries of reasonable fees for service in such capacity
consistent with past practice and reimbursement of actual out-of-pocket expenses
incurred in connection with attending meetings of the boards of directors of
the Company and its Subsidiaries and committees thereof, and provision of
reasonable indemnification to such directors, all as determined by the board of
directors of the Company in good faith;


(e)           any payment of cash by the Company
pursuant to Section 2.2 of the Acquisition Agreement; and


(g)           any payment or distribution by such
Person on account of the principal of or prepayment charge, if any, or interest
or other amounts, with respect to any other Indebtedness of the Company or any
of its Subsidiaries which is subordinated in right of payment to the prior
payment of the Notes unless such payment is at the time expressly permitted
under the applicable provisions of the agreement providing for such
subordination.


The
amount of any Restricted Payment made in the form of property shall be deemed
to be the greater of the fair market value or the net book value of such
property.


“Retiree Welfare Plan” means, at any
time, a Welfare Plan that provides for continuing coverage or benefits for any
participant or any beneficiary of a participant after such participant’s
termination of employment, other than continuation coverage provided pursuant
to Section 4980B of the Code and at the sole expense of the participant or
the beneficiary of the participant.


 


23

















 


“S&P” means Standard & Poor’s, a division
of The McGraw-Hill Companies, Inc., or any successor that is a nationally
recognized statistical rating organization.


“Sale
and Leaseback Transaction” means, with respect to the Company or
any of its Subsidiaries, any arrangement, directly or indirectly, with any
Person whereby the Company or such Subsidiary shall sell or transfer any
property used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.


“Sale
of the Company” means (i) a sale or other Disposition (including
a Disposition by means of a merger or consolidation of the Company with or into
another Person or Persons) of outstanding shares of Company Common Stock or
Call Securities constituting or representing rights to acquire 50% or more of
the shares of Company Common Stock then Outstanding on a Fully Diluted Basis,
(ii) any transaction or series of transactions described in Rule 145(a) of the
SEC pursuant to or in connection with which the Company shall issue a number of
shares of Company Common Stock or Call Securities which constitute or represent
rights to acquire in the aggregate a number of shares of Company Common stock
equal to or greater than the number of such shares that were Outstanding on a
Fully Diluted Basis immediately prior to such transaction or series of
transactions, (iii) any other transaction or series of transactions as a result
of which Persons who were not holders of Company Common Stock or Call
Securities immediately prior to such transaction or series of transactions shall
acquire shares of Company Common Stock or Call Securities constituting or
representing rights to acquire, immediately following such transaction or
series of transactions, 50% of more of the shares Company Common Stock
Outstanding on a Fully Diluted Basis, (iv) a sale or other Disposition of all
or substantially all of the assets of the Company or of the capital stock or
assets of any of its Subsidiaries (other than the capital stock or assets of
Subsidiaries representing in the aggregate less than 50% of the total
consolidated assets and less than 50% of the Consolidated Revenues of the
Company and its Subsidiaries), and (v) a voluntary or involuntary liquidation,
dissolution or winding up of the Company (including any transaction or event
that is deemed to be a liquidation, dissolution or winding up of the Company
pursuant to any provision of the Certificate of Incorporation of the Company).


“SALLC”
means Smart Acquisition, LLC, a Nevada limited liability company.


“SBA”
has the meaning specified in Section 2.2(d).


“SBN”
has the meaning specified in Section 4.8(a).


“SBIC
Investors” means Seaview and each other Purchaser which is a
licensed Small Business Investment Company.


“SDI”
means Smart Development Corp., a Nevada corporation, and, following the merger
of such corporation with and into SALLC pursuant to the terms of the
Acquisition Agreement, the surviving entity of such merger.


 


24

















 


“SDIAC”
means SDI Acquisition Corp., a Nevada corporation.


“SDI
Group Financials” has the meaning specified in Section 4.8(a).


“SDI Stockholder” means Johan Hendrik
Smit Duyzentkunst, an individual.


“Seaview” means Seaview Mezzanine
Fund LP, a Delaware limited partnership.


“Seaview Initial Warrants” has the
meaning specified in Section 2.2(d).


“SEC” means the United States
Securities and Exchange Commission and any successor agency, authority,
commission or Governmental Authority.


“Securities Account” means, with
respect to any Person, any securities account maintained by such Person with
any bank, securities broker or dealer, or other financial intermediary, in
which such bank, broker, dealer or financial intermediary either directly or
through a nominee or depository holds investment securities for the account of
such Person.


“Securities Act” means as of any date
the Securities Act of 1933, as amended, or any similar federal statute then in
effect, and a reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar federal
statute.


“Security Agreement” means the Pledge
and Security Agreement in the form of Exhibit
B executed and delivered by the Company, its Subsidiaries and the
Collateral Agent on the Closing Date, as from time to time amended, modified or
supplemented in accordance with its terms.


“Security Documents” means the
Security Agreement and all Patent Security Agreements, Trademark Security
Agreements, Copyright Security Agreements, Control Agreements, Mortgages,
financing statements, fixture filings, short form mortgages, assignments of
leases and contracts, and other agreements, instruments and documents that may
now or hereafter be executed, delivered, filed or recorded pursuant hereto or
thereto or in connection herewith or therewith, as any of the foregoing may
from time to time be amended, modified or supplemented in accordance with the
terms thereof.


“Series A Preferred Stock” means the
Series A Exchangeable Preferred Stock, par value $.0001 per share, of the
Company.


“Software” has the meaning specified
in Section 4.21(a).


“Solvent” means, as to any Person at
any time, that (a) the fair value of the property of such Person is greater
than the amount of such Person’s liabilities (including disputed, contingent
and unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(32)(A) of the Bankruptcy Code and, in the
alternative, for purposes of the Uniform Fraudulent Transfer Act; (b) the
present fair saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person is able to
realize upon its property and pay 


 


25

















 


its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business; (d)
such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute unreasonably small capital.


“Special Documents” means the
Acquisition Agreement, the Employment Agreements and the Registration Rights
Agreement.


“Stock Purchase Agreement” has the
meaning specified in the Recitals to this Agreement.


“Subsidiary” of any Person means (a)
any corporation with respect to which more than 50% of the issued and
outstanding Voting Equity Interests of such corporation (irrespective of
whether at the time Equity Interests of any other class or classes of such
Person shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries, or (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of such Person
shall have an interest (whether in the form of voting or participation in
profits or capital contribution) of more than 50% or of which any such Person
is a general partner or may exercise the powers of a general partner.


“Subsidiary Guarantee” means a
guarantee in the form of Exhibit C
executed by each Subsidiary of the Company on the Closing Date, as from time to
time amended, modified or supplemented in accordance with its terms.


“Swap Contracts” means (a) any and
all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of the foregoing (including any options to
enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any similar master
agreement, including any such obligations or liabilities under any such master
agreement or any schedule thereto.


 “Swap Termination Value” means, in respect of
any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out and 


 


26

















 


termination value(s) determined in accordance therewith, such
termination value(s) and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap Contracts.


“Synthetic Lease”
means any synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as
an operating lease or does not otherwise appear on a balance sheet under GAAP.


“Taxes” has the meaning specified in
Section 3.5(a).


“TICC” means Technology Investment
Capital Corp., a Maryland corporation.


“TICC Initial Warrants” has the
meaning specified in the Stock Purchase Agreement.


“Total Rate of Return” has the
meaning specified in Section 16.13(b).


“Trademark” means, with respect to
any Person, all of the following in which such Person now holds or hereafter
creates or acquires any interest:  (a) all trademarks, trade names,
corporate names, business names, trade styles, service marks, logos, domain
names, URL’s, other source or business identifiers, prints and labels on which
any of the foregoing have appeared or appear, designs and general intangibles
of like nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
state or territory thereof, or any other country or any political subdivision
thereof; (b) all reissues, extensions and renewals thereof; (c) all
goodwill associated with or symbolized by any of the foregoing; and (d) all
income, royalties, damages and payments now or hereafter due and/or payable
under or with respect to any Trademark, including damages and payments for
past, present and future infringements of any of the foregoing and the right to
sue for past, present and future infringements of any Trademark.


“Trademark License” means, with
respect to any Person, rights under any written agreement now owned or
hereafter acquired by such Person granting any right to use any Trademark,
including any sublicense thereof.


 “Trademark Security
Agreement” means a Trademark Security Agreement in favor of the
Collateral Agent, substantially in the form of Exhibit III
to the Security Agreement.


“Unfunded Pension Liabilities” means,
with respect to any Pension Plan on any date of determination, the
excess (if any) of that Pension Plan’s benefit liabilities over the
current value of that Pension Plan’s assets calculated in accordance
with the definition of “amount of unfunded benefit liabilities” as such
term is described in Section 4001(a)(18) of ERISA and using, for purposes of
such calculation, the valuation rules that apply to Pension
Plans placed into trusteeship by the PBGC.


 


27

















 


“Uniform Commercial Code” means the
Uniform Commercial Code as in effect from time to time in the State of New
York; provided, that to the extent that the Uniform Commercial Code is
used to define any term herein or in any Note Document and such term is defined
differently in different Articles or Divisions of the Uniform Commercial Code,
the definition of such term contained in Article or Division 9 shall govern; provided,
further, that if by reason of mandatory provisions of law, the
perfection or the effect of perfection or non-perfection or priority of the
security interests granted hereunder in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, “Uniform Commercial Code”
shall mean the Uniform Commercial Code as in effect, from time to time, in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection or priority.


“Voting Equity Interest” means, with
respect to any Person, (a) in the case of any Person which is a corporation,
any share of capital stock of such Person having the right to vote (other than
solely upon the occurrence of a contingency) with respect to the election of
members of the board of directors of such corporation, or (b) in the case of a
Person which is a partnership, limited liability company, or other entity
(other than a corporation), any Equity Interest of such Person having the right
to vote for or consent to (other than solely upon the occurrence of a
contingency) the election or appointment of directors or managers (or persons
performing similar functions) of such Person, or with respect to which the
holder of such Equity Interest is entitled to manage (alone or together with
holders of other such Equity Interests) the operations of such Person.


“VWAP” means, with respect to any
trading day, a quotient equal to (a) the sum of the products obtained by
multiplying, for each transaction in which shares of Company Common Stock are
traded on such trading day in the securities markets in which the Company
Common Stock is listed or admitted to trading (i) the number of shares of
Company Common Stock traded in such transaction by (ii) the price per share
paid in such transaction, divided by (b) the total number of shares of
Company Common Stock traded in such securities markets on such trading day, all
as reported by the Bloomberg Professional service or comparable source of
market data selected by the Purchaser in its reasonable discretion.


“Warrants” has the meaning specified
in the Stock Purchase Agreement.


“Welfare Plan” means a Plan described
in Section 3(1) of ERISA.


“Wholly-owned Subsidiary” means, with
respect to any Person, any Subsidiary of such Person all of the Equity
Interests (and all rights and options to purchase such Equity Interests) of
which, other than directors’ qualifying shares, are owned, beneficially and of
record, by such Person, or by such Person and one or more other Wholly-owned
Subsidiaries of such Person, or by one or more other Wholly-owned Subsidiaries
of such Person.


“Withdrawal Liabilities” means, as of
any date of determination, the aggregate amount of the liabilities, if any,
pursuant to Section 4201 of ERISA if the Company and its ERISA Affiliates made
a complete withdrawal from all Multiemployer Plans and any increase in
contributions pursuant to Section 4243 of ERISA.


 


28

















 


“Works” has the meaning specified in
Section 4.21(c).


Section 1.2.            Accounting
Principles.


(a)           Unless the context
otherwise clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under this
Agreement shall be made, in accordance with GAAP, consistently applied.


(b)           References herein to
“fiscal year”, “fiscal quarter” and “fiscal month” refer to such fiscal periods
of the Company, which shall not be changed without the prior written approval
of the Majority Purchasers.


(c)           If at any time after
the Exchange Date any change in GAAP is occasioned by promulgation of rules,
regulations, pronouncements or opinions by or is otherwise required by the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions),
and such change would affect the calculation of any financial ratio or other
financial requirement set forth in this Agreement or any other Note Document,
then upon the request of either the Company or the Majority Purchasers, the
Company and the Majority Purchasers shall negotiate in good faith to amend such
ratio or requirement so as to preserve the original intent thereof in light of
such change in GAAP; provided that, until so amended, (i) such financial
ratio or requirement shall continue to be computed in accordance with GAAP as
in effect immediately prior to such change therein, and (ii) the Company shall
provide to each of the Purchasers financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


Section 1.3.            Rules
of Construction.  References in this Agreement to “Articles”, “Sections”,
“Annexes”, “Exhibits” or
“Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules of
or to this Agreement unless otherwise specifically provided.  Singular words shall connote the plural as
well as the singular, and vice versa (except as otherwise indicated), as may be
appropriate.  “Include”, “includes” and “including”
shall be deemed to be followed by “without limitation”.  Except as otherwise specified herein,
references to any Person include the successors and assigns of such
Person.  Unless otherwise specified,
references “from” any date mean “from and including,” and references “to” any
date mean “to but not including.” 
References to any statute or act shall include all related current
regulations and all amendments and any successor statutes, acts and
regulations.  The words “herein”, “hereof”
and “hereunder” and other words of similar import refer to this Agreement as a
whole and not to any particular section or subsection.  Reference herein to any section or subsection
refers to such section or subsection (as the case may be) of this Agreement.  Each covenant or agreement contained in this
Agreement shall be construed (absent express provision to the contrary) as
being independent of each other covenant or agreement contained herein, so that
compliance with any one covenant or agreement shall not (absent such an express
contrary provision) be deemed to excuse compliance with any other covenant or
agreement.  Where any provision of this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person. 
References herein 


 


29





















 


to
the “knowledge” of any Person that is not an individual shall be deemed to
refer to knowledge by a Responsible Officer of such Person.


Section 2.               Issuance
and Sale of Notes.


Section 2.1.            Authorization
of Notes. 


(a)           The Notes.  The Company has duly authorized the issuance
and sale of its Senior Secured Notes Due 2010 (collectively called the “Notes” and each individually a “Note”) in the maximum aggregate
principal amount of $20,000,000 (net of repurchases).  Each Note shall be substantially in the form
of Exhibit A, shall be duly executed by
the Company and shall be dated the date of issue thereof.


(b)           Interest.  Each Note shall bear interest from its date
of issue on the unpaid principal amount thereof at a rate per annum equal,
during any Interest Rate Period, to the Applicable Interest Rate for such Interest
Rate Period, payable in cash (i) quarterly in arrears on the last Business Day
of February, May, August and November in each year (commencing with the first
such date occurring after the date of issue thereof), (ii) upon each optional
or mandatory prepayment of any or all of the principal amount thereof (with
respect to the principal amount so prepaid), and (iii) at maturity (whether at
stated maturity, or by acceleration or otherwise).


(c)           Post-Default
Interest.  Notwithstanding the
provisions of subsection (b) of this Section 2.1, upon the occurrence and
during the continuance of an Event of Default, the Notes shall bear interest at
a rate per annum equal to the Post-Default Rate on the unpaid principal amount
thereof and, to the extent permitted by applicable law, on any overdue
interest, until the same shall be paid, such interest to be payable in cash on
demand.


(d)           Computation of
Interest.  Interest on the Notes
shall be calculated on the basis of a year of 360 days, in each case for the
actual number of days occurring in the period for which such interest is
payable.


Section 2.2.            Sale
and Purchase of Notes.


(a)           Right to Exchange
Preferred Shares for Notes.  The
holders of the outstanding Preferred Shares shall have an option (the “Exchange Option”) exercisable at any
time on one occasion, to exchange any or all of the outstanding Preferred
Shares owned by them for Notes, at the rate of $1,000 principal amount of Notes
for each Preferred Share.  The Exchange
Option may be exercised upon written notice thereof given to the Company by the
holders of a majority of the Preferred Shares at the time outstanding (the “Majority Holders”), stating the date
on which such exchange of Preferred Shares for Notes shall occur (the “Exchange Date”), which date shall be
not less than two (2) Business Days nor more than ten (10) Business Days after
the date of such notice. The Majority Holders shall simultaneously give written
notice of the exercise of the Exchange Option to all other holders of Preferred
Shares.  Notwithstanding the foregoing,
the Exchange Option may be exercised in any event by any holder of outstanding
Preferred Shares upon written notice to the Company and the other holders of
Preferred Shares at any time after the earlier of (i) ten (10) Business Days
after the date on which TICC shall receive a license 


 


30





















 


from
the California Department of Corporations pursuant to the California Finance
Lenders Law and (ii) May 3, 2006.


(b)           Exchange of Notes
for Shares.  The sale and delivery of
the Notes to be issued hereunder in exchange for Preferred Shares shall take
place at the offices of Nixon Peabody LLP, 437 Madison Avenue, New York, New
York 10022 at 10:00 a.m., New York time on the Exchange Date.  On the Exchange Date, each Purchaser desiring
to exchange Preferred Shares for Notes shall deliver to the Company at its
address for notice set forth in Section 16.5 hereof stock certificates
representing the Preferred Shares then being exchanged by it hereunder, accompanied
by appropriate stock powers executed by such Purchaser in blank, and the
Company shall execute and deliver to such Purchaser Notes in the name of such
Purchaser or its nominee and dated the Exchange Date in an aggregate principal
amount equal to the product of $1,000 multiplied by the number of Preferred
Shares being exchanged by such Purchaser. 
Such Notes shall be deemed to be issued and outstanding as of the
Exchange Date.  The Preferred Shares
exchanged hereunder shall be deemed cancelled and retired as of such Exchange
Date and shall not be thereafter reissued. 
Prior to the Exchange Date, such Notes shall not be deemed to be issued
or outstanding or to represent Indebtedness or obligations of the Company or
its Subsidiaries.


(c)           Payment of Remaining
Accumulated Dividends.  Not later
than 2:00 p.m. (New York City time) on the Exchange Date, the Company shall pay
to each Purchaser exchanging Preferred Shares for Notes on such date in
immediately available funds the amount of all unpaid dividends accrued on such
Preferred Shares to but not including the Exchange Date (whether or not earned
or declared).


(d)           Issuance of Notes
and Initial Warrants to Seaview in Certain Cases.  In the event that the Exchange Date shall be
earlier than 60 days after the Closing Date and, as of the Exchange Date,
Seaview shall not have purchased any Preferred Shares pursuant to the
provisions of the Stock Purchase Agreement, then, on the Exchange Date or such
later date as Seaview shall determine (provided that such date shall in
no event be more than 60 days after the Closing Date), and subject to (x) the
receipt by Seaview on or prior to such date of all necessary approvals of the
United States Small Business Administration (the “SBA”)
required in connection with Seaview’s investment in the Notes and Warrants
contemplated hereby, (y) the satisfaction or written waiver by Seaview of all
of the conditions set forth in Section 6.2 of the Stock Purchase Agreement
(other than 6.2(c)(i) and (ii), 6.2(f) and 6.2(k)), and (z) the absence of any
Event of Default (unless such condition is waived in writing by Seaview), the
Company agrees to issue and sell to Seaview, and Seaview agrees to purchase,
(i) Notes, dated such date of issuance to Seaview, in an aggregate principal
amount equal to $5,000,000, and (ii) Warrants (the “Seaview
Initial Warrants”) initially exercisable to purchase an
aggregate number of shares of Company Common Stock equal to 25% of the
aggregate number of such shares for which the TICC Initial Warrants are then
exercisable (after giving effect to any adjustments thereto that may have been
required during the period since the Initial Closing Date), at the same
exercise price per share that is then applicable to the TICC Initial Warrants
(after giving effect to any such adjustments), all for an aggregate purchase
price of $5,000,000.  Upon such issuance
and sale, (A) the Company shall pay to Seaview a closing fee of $100,000, and
(B) the Company shall repurchase from TICC, and TICC shall sell to the Company,
Notes held by it in an aggregate 


 


31





















 


principal
amount of $5,000,000 and TICC Initial Warrants exercisable to purchase an
aggregate number of shares of Company Common Stock equal to the aggregate
number thereof for which the Seaview Initial Warrants are initially
exercisable, for a purchase price payable by the Company to TICC in immediately
available funds equal to the sum of $5,000,000 plus all unpaid interest
accrued on such repurchased Notes from the Exchange Date to the date of such
repurchase.  In the event that (AA) the
Exchange Date shall be earlier than 60 days after the Closing Date and as of
the Exchange Date Seaview shall not have purchased Preferred Shares pursuant to
the Stock Purchase Agreement, and (BB) Seaview shall not have purchased Notes pursuant
to this Section 2.2(d) within 60 days after the Closing Date, then Seaview
shall have no further right to purchase Notes hereunder.  In such event the Company on the 61st
day following the Closing Date (or, if such day is not a Business Day, on the
next succeeding Business Day) shall pay to TICC an additional closing fee of
$100,000.


Section 3.               Payment
and Prepayment of Notes.  The
provisions of this Section 3 shall be applicable upon and after
the Exchange Date.


Section 3.1.            Mandatory
Payment of Principal.


(a)           The principal amount
of the Notes shall be paid in full on the Maturity Date, together with all
unpaid accrued interest thereon.


(b)           Upon receipt by the
Company or its Subsidiaries of any Net Cash Proceeds resulting from:


(i)            any
Initial Public Offering or other public or private offering, issuance and sale
of Equity Interests of the Company, other than Net Cash Proceeds received in
connection with (A) a Qualified Equity Financing completed on or prior to June
16, 2006, (B) issuances of Equity Interests of the Company as full or partial
consideration for or to finance a Permitted Acquisition, and (C) any issuance
relating solely to employee benefit plans or solely to a transaction described
in Rule 145(a) of the SEC),


(ii)           the
issuance and sale of debt securities of the Company or any of its Subsidiaries
or of any other incurrence of Indebtedness by the Company and its Subsidiaries
(other than the issuance and sale of the Notes and the incurrence of
Indebtedness pursuant to this Agreement),


(iii)          a
Sale of the Company, or any other sale or other Disposition of assets or
property of the Company or its Subsidiaries, other than in the ordinary course
of business, or


(iv)          subject
to the provisions of the last sentence of this subsection (b), the receipt of
payment due from any policy of property or casualty insurance in respect of any
loss or damage to Collateral or other assets or property of the Company or its
Subsidiaries covered by such policy,


the Company shall (A) deliver to each of the Purchasers an Officer’s
Certificate setting forth the amount of such Net Cash Proceeds and containing a
calculation in reasonable detail of such 


 


32

















 


amount and a description of the transaction giving rise thereto, and
(B) pay the amount of such Net Cash Proceeds to the Purchasers (or, in the case
of insurance proceeds referred to in clause (iv), to the Collateral Agent on
behalf of the Purchasers) in immediately available funds, to be allocated and
applied as provided in Section 3.4.  The
insurance proceeds referred to in clause (iv) above need not be paid to the
Collateral Agent, and may be retained by the Company or its Subsidiaries, in
any case where (x) the amount of such insurance proceeds does not exceed
$100,000 and (y) no Default or Event of Default shall have occurred and be
continuing, provided that such proceeds shall be used to repair or
replace the property so damaged or destroyed.


Section 3.2.            Optional
Prepayment of the Notes.  Upon notice given as provided in Section 3.3,
the Company, at its
option, may prepay at any time all or from time to time any part (in an
aggregate amount of $100,000 or any greater amount which is an even multiple of
$100,000, or any lesser amount that shall constitute the remaining principal
balance of the Notes) of the principal amount of the Notes, together with
accrued but unpaid interest on the principal amount being prepaid to the date
of such prepayment and, with respect to any prepayment made pursuant to this
Section 3.2 on or prior to the first anniversary of the Closing Date, a
prepayment charge equal to 5.0% of the principal amount being prepaid.  Each prepayment made pursuant to this Section
3.2 shall be allocated and applied as provided in Section 3.4; provided
that no such prepayment charge shall be payable in the event that such
prepayment is made out of the Net Cash Proceeds of a substantially concurrent
Sale of the Company or Qualified Equity Financing.


Section 3.3.            Notice
of Prepayment of the Notes.  The Company shall call Notes for prepayment pursuant to Section 3.2 by
giving written notice thereof to each of the Purchasers not less than 30 nor
more than 60 days prior to the date fixed for such prepayment.  Such notice shall specify (a) the date fixed
for such prepayment, (b) the principal amount to be prepaid on such date, and
(c) the amount of accrued interest to be paid on such date.  Notice of prepayment having been so given,
the aggregate principal amount of the Notes so to be prepaid as specified in
such notice, together with interest accrued thereon to such date fixed for
prepayment, plus the applicable prepayment charge, if any, shall become due and
payable on the specified prepayment date.


Section 3.4.            Manner,
Time and Allocation of Payments.


(a)           Each amount payable
hereunder or under the Notes shall be paid in Dollars, by wire transfer or
other immediately available funds, without deduction, set-off or
counterclaim, to the Purchasers at such accounts and banks as shall be
designated by the respective Purchasers from time to time by written notice to
the Company, not later than 2:00 p.m. (New York City time) on the day on which
such amount is due hereunder.  Any amount
received later than 2:00 p.m. (New York City time) on any day shall be deemed
received on the next succeeding Business Day.


(b)           Payments made to the
Purchasers hereunder shall be applied first to the payment of fees,
costs, expenses and indemnities and other amounts due hereunder (other than
principal, interest and prepayment charges), second to the payment of
accrued interest, and third to the payment of the principal amount of
the outstanding Notes and prepayment charges (if any).  Payments and prepayments of principal and
interest on the Notes shall be allocated to the 


 


33





















 


outstanding
Notes pro rata in accordance with the respective principal amounts thereof then
outstanding.  Principal amounts of the
Notes that are paid or prepaid hereunder may not be reborrowed.


Section 3.5.            Payments
Free and Clear of Taxes.


(a)           Any and all payments
under this Agreement and the Notes shall be made free and clear of, and without
deduction or withholding for, any and all present or future federal, state,
local and foreign taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding such taxes as are imposed
on or measured by each of the Purchasers’ net income by the jurisdiction under
the laws of which such Purchaser is organized or conducts business or any
political subdivision thereof (“Taxes”).  If the Company shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under the
Notes, (i) the sum payable shall be increased as much as shall be
necessary so that after making all required deductions (including deductions applicable
to additional sums payable under this Section 3.5(a)) the applicable Purchaser
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions, and
(iii) the Company shall pay the full amount deducted to the relevant
taxing or other authority in accordance with applicable law.


(b)           In addition, the
Company agrees to pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from any
payment made under this Agreement or the Notes or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as “Other Taxes”).


(c)           The Company will
indemnify the each of the Purchasers for the full amount of Taxes or Other
Taxes imposed by any jurisdiction and paid by such Purchaser, and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted.  Such indemnification payment
shall be made within 30 days after the date such Purchaser makes written demand
therefor.


(d)           Within 30 days after
the date of any payment of Taxes or Other Taxes, the Company will furnish to
the Purchasers the original or a certified copy of a receipt evidencing payment
thereof.


(e)           Without prejudice to
the survival of any other agreement contained herein, the agreements and
Obligations contained in this Section 3.5 shall survive the payment in full of
principal, interest, fees and any other amounts payable hereunder (other than
amounts payable pursuant to this Section 3.5).


Section 3.6.            Payments
Due on Days Not Business Days.  Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, that payment shall be made
on the next preceding Business Day.


 


34





















Section 3.7.            Surrender
of Notes; Notation Thereon.  The Company may, as a condition of payment of all or any part of the
principal of, prepayment charge (if any) and interest on, any Note, require the
holder of such Note to present such Note for notation of such payment and, if
such Note is to be paid in full, require the surrender thereof.


Section 4.               Representations
and Warranties of the Company. The Company represents and warrants to the Purchasers
that, as of the Closing Date after giving effect to the Acquisition
Transactions and the transactions contemplated by the Stock Purchase Agreement:


Section 4.1.            Corporate
Existence and Power.  Each of the Company and its Subsidiaries (a)
is a corporation or (as
the case may be) a limited liability company duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of incorporation
or organization, (b) is duly qualified to do business in each additional
jurisdiction where the failure to so qualify would have a Material Adverse
Effect, and (c) has all requisite power (corporate or limited liability
company, and other) to own its respective properties and to carry on its
respective businesses as now being conducted and as proposed to be conducted,
and to execute, deliver and perform its Obligations under the Note Documents to
which it is respectively a party.


Section 4.2.            Corporate
Authority.  The execution, delivery and performance by
the Company of this
Agreement and the other Note Documents to which the Company is a party have
been duly authorized by all necessary corporate action on the part of the board
of directors and stockholders of the Company. 
The execution, delivery and performance by each Subsidiary of the
Company of the Note Documents to which such Subsidiary is a party have been
duly authorized by all necessary corporate or (as the case may be) limited
liability company action on the part of such Subsidiary.


Section 4.3.            Binding
Effect.  This Agreement and each of the other Note
Documents to which the Company
is a party have been duly executed and delivered by the Company and are (or, in
the case of the Notes, will be when issued) the legal, valid and binding
obligations of the Company, in each case enforceable against the Company in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors’ rights generally and by general principles of
equity.  Each of the Note Documents to
which any Subsidiary of the Company is a party has been duly executed and
delivered by such Subsidiary and are the legal, valid and binding obligation of
such Subsidiary, enforceable against such Subsidiary in accordance with its
terms, except to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors’ rights generally and by
general principles of equity.


Section 4.4.            Liens
and Security Interests.   On the Exchange Date, the Liens and security
interests created
pursuant to the Security Documents will constitute legal, valid and perfected
first priority Liens and security interests in all of the Collateral purported
to be covered thereby, subject to no other Liens except Permitted Liens.


Section 4.5.            No
Conflicts with Agreements, Etc.  Neither the execution and delivery by the Company of this Agreement
or any of the other Note Documents to which it is a party, nor 


 


35





















 


the
execution and delivery by any Subsidiary of the Company of any of the Note
Documents to which it is a party, nor the offering, issuance or sale of the
Notes nor the fulfillment of or compliance with the terms and provisions hereof
or thereof, will conflict with, or result in a breach or violation of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation of any Lien (other than Liens created pursuant to the Security
Documents) on any properties or assets of the Company or its Subsidiaries
pursuant to, the Organizational Documents of the Company or any of its
Subsidiaries, or any contract, agreement, mortgage, indenture, lease or
instrument to which any of them is a party or by which any of them is bound or
to which any of them or any of their respective assets are subject, or any
Requirement of Law to which any of them or any of their respective assets are
subject.


Section 4.6.            Consents,
Etc.  No consent, approval or authorization of or
declaration, registration or filing
with any Governmental Authority or any nongovernmental Person, including any
creditor or stockholder of the Company or any of its Subsidiaries, is required
in connection with the execution or delivery by the Company of this Agreement
or the other Note Documents to which the Company is a party, or in connection
with the execution or delivery by any Subsidiary of the Company of the Note
Documents to which it is respectively a party, or the performance by the
Company or such Subsidiary of its Obligations hereunder and thereunder, or as a
condition to the legality, validity or enforceability of this Agreement or any
other Note Document, except for filing of financing statements required in
order to perfect the Liens of the Collateral Agent in the Collateral or to
exercise remedies thereunder, and except for such consents, approvals,
authorizations, declarations, registrations or filings as are listed in Schedule 4.6, all of which have been or will on or prior to
the Closing Date be obtained and are or will then be in full force and effect.


Section 4.7.            Equity
Interests.


(a)           The authorized
Equity Interests of the Company consist of 100,000,000 shares of Company Common
Stock and 10,000,000 shares of Company Preferred Stock, including 25,000 shares
of Series A Preferred Stock.  Set forth
in Schedule 4.7 is a true and complete
list of the holders of five percent (5%) or more of the outstanding shares of
Company Common Stock and of all of the Company Preferred Stock, and of all
outstanding Options, Convertible Securities and other Call Securities (each as
defined below), together with the number of such shares of each class, or
amount of Options, Convertible Securities or other Call Securities, held by
each such holder.  All of the issued and
outstanding shares of Company Common Stock and Company Preferred Stock are
validly issued, fully paid and non-assessable.  Except as set forth in Schedule 4.7
and except for the Warrants, there are no outstanding (i) options, warrants or
rights to subscribe for or purchase, or agreements (contingent or otherwise)
providing for the issuance of, or calls, commitments or claims of any character
relating to, any shares of Company Common Stock or Company Preferred Stock (“Options”), (ii)
securities (including debt securities and equity securities) that are or by
their terms may become convertible into or exchangeable for any shares of
Company Common Stock or Company Preferred Stock (“Convertible Securities”), or (iii)
options, warrants or rights to subscribe for or purchase, or agreements
(contingent or otherwise) providing for the issuance of, or calls, commitments
or claims of any character relating to, any Convertible Securities (together
with Options and Convertible Securities, “Call Securities”).  Except as set forth in Schedule 4.7, none of the authorized Equity
Interests of the 


 


36





















 


Company
constitutes Redeemable Stock, and the Company has no obligation, whether
mandatory or at the option of any other Person, at any time to redeem or
repurchase any shares of Company Common Stock or Company Preferred Stock or any
Call Securities, pursuant to the terms of the Company’s Organizational
Documents or by contract or otherwise.


(b)           The shares of
Company Common Stock issuable upon exercise of the Warrants have been duly and
validly reserved for issuance upon such exercise and, when issued and delivered
against payment therefor as provided therein, will be duly authorized, validly
issued, fully paid and non-assessable and subject to no Liens in respect of the
issuance thereof.


Section 4.8.            Existing
Financial Statements; Projections; No Material Change. 


(a)           The Company has
delivered to the Purchasers true and complete copies of (i) the audited
consolidated balance sheets of the Company and its Subsidiaries as of September
30, 2003 and 2004, and the related audited consolidated statements of income,
retained earnings and cash flows for each of the fiscal years then ended,
together with the notes thereto and the reports thereon of the Accountants (the
“Audited Financial Statements”), (ii)
the unaudited consolidated balance sheets of the Company and its Subsidiaries
as of June 30, 2005, and the related unaudited consolidated statements of
income, retained earnings and cash flows for the nine-month then ended (the “Interim Financial Statements”), and
(iii) the unaudited combined balance sheets of SDI and its Affiliate SBN
Peripherals, Inc. (“SBN”) as of October 31, 2003
and 2004 and as at June 30, 2005 and the related unaudited combined statements
of income of SDI and SBN for each of the two fiscal years ended October 31,
2004 and the twelve months ended June 30, 2005 (collectively, the “SDI Group Financials”; the Audited
Financial Statements, the Interim Financial Statements and the SDI Group
Financials are sometimes hereinafter collectively referred to as the “Existing Financial Statements”).  The Existing Financial Statements have been
prepared in accordance with GAAP (except as noted thereon) consistently applied
throughout the periods involved, and present fairly, in all material respects,
the consolidated financial position and related consolidated income, retained
earnings and cash flows of the Company and its Subsidiaries and the combined
financial position and income of SDI and SBN (the “SDI
Group”) as at each of the dates and for each of the periods
covered thereby, subject, in the case of the Interim Financial Statements and
the SDI Group Financials, to non-material year-end audit adjustments and
absence of the notes required by GAAP.


(b)           As of the date of
each of the balance sheets included in the Existing Financial Statements,
neither the Company nor any of its Subsidiaries, nor the SDI Group had any
Indebtedness or liability, absolute or contingent, liquidated or unliquidated,
except Indebtedness and liabilities reflected or reserved against on such
respective balance sheets or described in the notes thereto.


(c)           The Projections, a true and complete copy of which is
attached hereto as Schedule 4.8(c),
are reasonable in light of the historical operations and results of the
Predecessor Company, represent management’s good faith best estimate of the
future operating performance of the Company and its Subsidiaries and were
prepared on an accounting basis consistent with the Audited Financial
Statements. The Projections reflect all adjustments recommended by the
Accountants.


 


37





















 


(d)           The pro forma
balance sheet of the Company as of June 30, 2005, a copy of which is attached
hereto as Schedule 4.8(d),
presents fairly in all material respects, in conformity with GAAP applied on a
basis consistent with the Audited Financial Statements, the consolidated
financial position of the Company as of such date, as adjusted to give effect
(as if such events had occurred on such date) to (i) the Acquisition
Transactions, (ii) the transactions contemplated by the Stock Purchase
Agreement, and (iii) the payment of all legal, accounting and other fees and
expenses related thereto to the extent known at the time of the preparation of
such balance sheet.


(e)           Except as set forth in Schedule
4.8(e), there has not been, since September 30, 2004:


(i)            any change in the business,
financial condition, properties, operations or prospects of the Company and its
Subsidiaries from that reflected in the Audited Financial Statements, other
than changes in the ordinary course of business, none of which individually or
in the aggregate has had or is expected to have a Material Adverse Effect;


(ii)           any resignation or termination of any
officers or key employees of the Company or any of its Subsidiaries, and the
Company and its Subsidiaries have no knowledge of any impending resignation or
termination of employment of any such officer or key employee;


(iii)          any material change, except in the
ordinary course of business, in the contingent obligations of the Company or
any of its Subsidiaries by way of guaranty, endorsement, indemnity, warranty or
otherwise;


(iv)          any damage, destruction or loss,
whether or not covered by insurance, which has had a Material Adverse Effect;


(v)           any waiver by the Company or any of
its Subsidiaries of a valuable right or of a material debt owed to it;


(vi)          any direct or indirect loans made by
the Company or any of its Subsidiaries to any stockholder, employee, officer or
director of the Company or any of its Subsidiaries, other than advances made in
the ordinary course of business;


(vii)         any material change in any compensation
arrangement or agreement with any employee, officer or director of the Company
or any of its Subsidiaries;


(viii)        any declaration or payment of any
dividend or other distribution of the assets of the Company or any of its
Subsidiaries;


(ix)           to the knowledge of the Company and
its Subsidiaries, any labor organization activity with respect to any employees
of the Company or any of its Subsidiaries;


 


38





















 


(x)            any debt, obligation or liability
incurred, assumed or guaranteed by the Company or any of its Subsidiaries,
except those for immaterial amounts and for current liabilities incurred in the
ordinary course of business;


(xi)           any sale, assignment or transfer of
any Patents, Trademarks, Copyrights, trade secrets or other Intellectual
Property by the Company or any of its Subsidiaries;


(xii)          any change in any Material Contract
that could reasonably be expected to have a Material Adverse Effect;


(xiii)         any satisfaction or discharge of any
Lien or payment of any obligation by the Company or any of its Subsidiaries,
except in the ordinary course of business and that is not material to the
business, properties, financial condition, operations or prospects of the
Company or any of its Subsidiaries;


(xiv)        any Lien 
on any asset of the Company or any of its Subsidiaries except Permitted
Liens;


(xv)         any action, suit, proceeding or
investigation against the Company or any of its Subsidiaries, except any such
action, suit, proceeding or investigation that (A) is not material to the
business, properties, financial condition, operations or prospects of the
Company or any of its Subsidiaries or (B) is set forth on Schedule 4.8(d);


(xvi)        any written communication received by
the Company or any of its Subsidiaries alleging that the Company or any of its
Subsidiaries or any of its products or services has violated any of the Patents
or Patent Licenses  and other proprietary
rights and processes of any other Person; or


(xvii)       any other events or conditions of any character that,
either individually or in the aggregate, have resulted or could reasonably be
expected to result in a Material Adverse Effect.


Section 4.9.            Subsidiaries.  Set forth in Schedule 4.9
attached hereto is a
true and complete list of all direct and indirect Subsidiaries of the Company,
setting forth as to each such Subsidiary its jurisdiction of incorporation or
organization and the percentage of each class of Equity Interests of such
Subsidiary owned by the Company or a Subsidiary of the Company.  Neither the Company nor any Subsidiary of the
Company owns any Equity Interests of any Person other than the Subsidiaries
listed in Schedule 4.9.  The Company and its Subsidiaries have good
title to all of the Equity Interests owned by them of each of the Company’s
direct and indirect Subsidiaries, free and clear in each case of any Lien other
than Permitted Liens.  All of the Equity
Interests of each Subsidiary have been duly and validly issued, and are fully
paid and non-assessable and owned of record or beneficially by the
Company and/or one or more of its Subsidiaries. 
There are no securities outstanding that are convertible into or
exchangeable for any Equity Interests of the Company’s Subsidiaries, nor are
there outstanding any rights to subscribe for or purchase, or any options or
warrants for the purchase of, or any agreements (contingent or otherwise)
providing for the issuance of, or any calls, commitments or claims of 


 


39





















 


any
character relating to, any Equity Interests of the Company’s Subsidiaries or
any securities convertible into or exchangeable for any such Equity Interests.


Section 4.10.          Litigation.  


(a)           Except as set forth
on Schedule 4.10, there are no actions,
suits or proceedings pending, or, to the Company’s knowledge, threatened
against or affecting the Company or any of its Subsidiaries or any properties
or rights of any of them which, if adversely determined, individually or in the
aggregate would have a Material Adverse Effect.


(b)           There are no
actions, suits or proceedings pending, or, to the Company’s knowledge,
threatened against or affecting the Company or any of its Subsidiaries which
seek to enjoin, or otherwise prevent the consummation of, the transactions
contemplated herein or to recover any damages or obtain any relief as a result
of any of the transactions contemplated herein in any court or before any
arbitrator of any kind or before or by any Governmental Authority.


Section 4.11.          No
Violation of Law; No Default.


(a)           None of the Company
or its Subsidiaries is now, or will be after or as a result of giving effect to
the transactions contemplated herein, in default under or in violation of any
Order of any court, arbitrator or Governmental Authority or of any federal,
state, local or foreign Requirement of Law, which default or violation could
reasonably be expected to have a Material Adverse Effect.  In particular, without limiting the
generality of the foregoing, the Company and its Subsidiaries are in compliance
in all material respects with the provisions of the Telemarketing Sales Rule of
the Federal Trade Commission, 16 U.S.C. Part 310, including the “Do-Not-Call”
provisions thereof, the regulations of the Federal Communications Commission
with respect to Restrictions on Telemarketing and Telephone Solicitation, 47
C.F.R. Section 64.1200(a) — (f), including the “Do-Not-Call” provisions
thereof, and similar state laws and regulations.


(b)           Neither the Company
nor any of its Subsidiaries is in default under or with respect to any
provision of any security issued by any such Person, of any of their respective
Organizational Documents, or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement
to which any such Person is a party or by which it or any of its property is
bound which, individually or together with all such defaults, could reasonably
be expected to have a Material Adverse Effect or that would, if such default
had occurred after the Exchange Date, create an Event of Default under Section
12.1(e).


(c)           No Default or Event
of Default will exist on the Exchange Date immediately after giving effect to
the execution and delivery by the Company and its Subsidiaries of this
Agreement and the other Note Documents and the incurrence by them of their
respective Obligations hereunder and thereunder, including the grant or perfection
of any Lien on the Collateral granted pursuant to the Security Documents.


 


40





















 


Section 4.12.          Title to
Properties.  The Company and its Subsidiaries own no real
property.   Schedule
4.12 sets forth a true and complete list of all leases of real
property to which any of such Persons is a party, identifying the parties to
each such lease and the property to which it relates.  True and complete copies of all such leases,
together with all amendments, modifications and supplements thereto to the date
hereof, have been delivered to the Purchasers. 
Each of the Company and its Subsidiaries has valid leasehold interests
in all real property leased by it, and valid title to all owned personal
property and valid leasehold interests in all leased personal property, in each
case, necessary or used in the ordinary conduct of their respective businesses,
subject to no Liens other than Permitted Liens.


Section 4.13.          Taxes.  The Company and its Subsidiaries have filed
all federal and other
material tax returns and reports required to be filed, and have paid all
federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings diligently prosecuted and for which adequate
reserves have been provided in accordance with GAAP, and no notice of Lien has
been filed or recorded in respect of any such taxes. There is no proposed tax
assessment against the Company or any of its Subsidiaries which would, if the
assessment were made, either individually or in the aggregate, have a Material
Adverse Effect.


Section 4.14.          Labor
Matters.


(a)           Except as set forth
in Schedule 4.14, (i) no strikes, work
stoppages, slowdowns or other labor disputes or grievances against the Company
or any of its Subsidiaries are pending or, to the Company’s knowledge,
threatened, which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (ii) none of the Company or any of its
Subsidiaries is a party to any collective bargaining agreement and none of them
has any knowledge of any pending or threatened effort to organize any of their
employees, (iii) there are no representation proceedings pending or, to the
Company’s knowledge, threatened before the National Labor Relations Board, and
no labor organization or group of employees of the Company or any of its
Subsidiaries has made a pending demand for recognition, (iv) neither the
Company nor any of its Subsidiaries is
engaged in any unfair labor practice or discriminatory employment practice and
no complaint of any such practice against the Company or any of its
Subsidiaries has been filed or, to the best knowledge of the Company and its
Subsidiaries, threatened to be filed with or by the National Labor Relations
Board, the Equal Employment Opportunity Commission or any other administrative
agency, federal or state, that regulates labor or employment practices, nor has
any grievance been filed or, to the best knowledge of the Company and its
Subsidiaries, threatened to be filed, against the Company or any of its
Subsidiaries by any employee pursuant to any collective bargaining or other
employment agreement to which the Company or any such Subsidiary is a party or
is bound, and (v) the Company and its Subsidiaries are in compliance with the
Fair Labor Standards Act and all other applicable federal, state, local and
foreign Requirements of Law relating to the employment of labor, except such
non-compliance as individually and in the aggregate could not reasonably
be expected to have a Material Adverse Effect.


 


41





















 


(b)           Schedule 4.14
sets forth a true and complete list of all employees representing executive
management of the Company and its Subsidiaries and all independent contractors
or consultants hired or engaged by the Company or any of its Subsidiaries.  Except as set forth on Schedule 4.14, the employment of all
Persons and officers employed by the Company and each of its Subsidiaries in
connection with the preceding sentence is terminable at will without any
penalty or severance obligation of any kind on the part of the employer.  Except as set forth on Schedule  4.14, all sums due for employee compensation and benefits
and all vacation time owing to any employees of any of the Company and its
Subsidiaries have been duly and adequately accrued on the accounting records of
the Company and its Subsidiaries.


(c)           None of the Company or its Subsidiaries has knowledge that
any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of such employee’s best efforts to promote the interests
of the Company and its Subsidiaries or that would conflict with the Company’s
or its Subsidiaries’ business as proposed to be conducted.


Section 4.15.          Environmental
Matters. Except as set forth in  Schedule
4.15:


(a)           The Company and its
Subsidiaries, and their respective operations and properties, are in compliance
in all material respects with all applicable Environmental Laws, except such
non-compliance which would not (if enforced in accordance with applicable law)
reasonably be expected to result in, either individually or in the aggregate, a
Material Adverse Effect.


(b)           The Company and each
of its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any applicable Environmental Law and necessary for
their respective operations (“Environmental Permits”),
all such Environmental Permits are in good standing and in full force and
effect, and the Company and each of its Subsidiaries are in compliance with all
material terms and conditions of such Environmental Permits, except where the
failure to obtain, to maintain in good standing and in full force and effect,
or to be in compliance with such Environmental Permits could not reasonably be
expected to result in, either individually or in the aggregate, a Material Adverse
Effect.


(c)           None of the Company,
any of its Subsidiaries or any of their respective present properties or
operations is subject to any outstanding written order from or agreement with
any Governmental Authority, nor subject to any judicial or docketed
administrative proceeding, with respect to any Environmental Law, Environmental
Matter or Hazardous Material which could reasonably be expected to result in,
either individually or in the aggregate, a Material Adverse Effect.


(d)           There are no
Hazardous Materials or other conditions or circumstances existing with respect
to any property of the Company or its Subsidiaries, or arising from operations
of the Company or its Subsidiaries prior to the Closing Date, that could
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect.


 


42





















 


Section 4.16.          Compliance
with ERISA.


(a)           Neither the Company
nor any ERISA Affiliate has established or maintains any Pension Plan or
Multiemployer Plan, and no event or fact exists which could give rise to any
liability to the Company or any ERISA Affiliate under Title IV of ERISA,
Section 302 of ERISA or Section 412 of the Code.  Schedule 4.16
lists (i) all ERISA Affiliates and (ii) all Plans, including all Welfare Plans,
Retiree Welfare Plans and ESOPs and all bonus,
commission, profit-sharing, saving, stock option, stock purchase, stock
bonus, stock appreciation right, insurance, deferred compensation, or other
employee benefit plans or arrangements, maintained or contributed to by the
Company or any ERISA Affiliate to its employees or under which the Company or
any ERISA Affiliate has any obligation or liability.  Copies of all such listed Plans have been
delivered to the Purchasers.


(b)           The Company and each
of the ERISA Affiliates is in compliance in all material respects with all
requirements of each Plan maintained or contributed to by it or under which it
has any obligation or liability, and each Plan complies in all material
respects, and is operated in compliance in all material respects, with all
applicable provisions of ERISA and the Code, including the timely filing of all
reports required under the Code or ERISA, including the statement required by
29 CFR Section 2520.104-23. 
Except with respect to Multiemployer Plans, each Pension Plan that is
intended to be tax-qualified under Section 401(a) of the Code has
been determined by the IRS to qualify thereunder, the trusts created thereunder
have been determined to be exempt from tax under the provisions of
Section 501 of the Code, and nothing has occurred that would cause the
loss of such qualification or tax-exempt status.  Except for claims for benefits made in the
ordinary course of business of the Company and its Subsidiaries, no material
proceeding, claim, lawsuit and/or investigation is pending concerning any
Plan.  All required contributions have
been made in accordance with the provisions of each Pension Plan and
Multiemployer Plan, and with respect to the Company or any ERISA Affiliate,
there are no material Unfunded Pension Liabilities or Withdrawal Liabilities.


(c)           No ERISA Event has
occurred or is expected to occur with respect to any Pension Plan,
Multiemployer Plan or other Plan which could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.


(d)           The Company and the
ERISA Affiliates currently comply and have complied in all material respects
with the notice and continuation coverage requirements of Section 4980B of the
Code.


Section 4.17.          Material
Contracts.  Schedule 4.17
contains a list of all
Material Contracts to which the Company or any of its Subsidiaries is a party
(other than leases listed on Schedule 4.12
and Licenses listed on Schedule 4.20(c)).  True and complete copies of each of the
Material Contracts, with all amendments, modifications and supplements thereto
to the date hereof, have previously been furnished by the Company to the Purchasers
or their representatives.  Each of such
Material Contracts is valid, subsisting and in full force and effect.  None of the Company and its Subsidiaries is
in breach or violation of any of the terms, conditions or provisions of any of
such Material Contracts, and to the best knowledge of the Company no third
party to any of the Material Contracts is in breach or violation of any of the
terms, conditions or provisions 


 


43





















 


thereof.  Neither the Company nor any of its
Subsidiaries has transferred or subordinated any of its rights or interests in
any of the Material Contracts, and such rights and interests are subject to no
Liens except Permitted Liens.  Neither
the Company nor any of its Subsidiaries is a party to any Material Contract or
is subject to any restriction contained in the charter or by-laws of any
of them which individually or in the aggregate has had or is reasonably likely
to have a Material Adverse Effect.


Section 4.18.          Insurance.  The Company and its Subsidiaries and their respective properties
are insured with insurance companies reasonably believed by the Company to be
financially sound and reputable, and which are not Affiliates of the Company,
in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary
operates.  A true and complete listing of
such insurance, including issuers, coverages and deductibles is set forth in Schedule 4.18.  All
premiums in respect of such policies have been paid through the Closing Date.


Section 4.19.          Possession
of Franchises, Licenses, Etc.  The Company and its Subsidiaries possess all
franchises, certificates, licenses, permits, registrations, and other
authorizations from Governmental Authorities, free from burdensome
restrictions, that are necessary for the ownership, maintenance and operation
of their respective properties and assets, and for the conduct of their
respective businesses as now conducted, and none of the Company or any of its
Subsidiaries is in violation of any thereof in any material respect.


Section 4.20.          Intellectual
Property.


(a)           The Company and its Subsidiaries own all right, title and
interest in and to, or have valid and enforceable Licenses to use, all of the
Intellectual Property used by them in connection with their business as
presently conducted (the “Company
Intellectual Property”), which represents all intellectual
property rights necessary to the conduct of the business of the Company and its
Subsidiaries as now conducted and as presently contemplated to be conducted.  The Company and its Subsidiaries are in
compliance with the contractual obligations relating to the protection of such
of the Company Intellectual Property that it uses pursuant to Licenses.  To the knowledge of the Company and its
Subsidiaries, there are no conflicts with or infringements by any third party
of any Company Intellectual Property, 
and the conduct of the business of the Company and its Subsidiaries as
currently conducted or as currently contemplated to be conducted does not and
will not conflict with or infringe any proprietary right of any third
party.  There is no material claim, suit,
action or proceeding pending or, to the knowledge of the Company and its
Subsidiaries, threatened against the Company or any of its Subsidiaries:  (i) alleging any such conflict or
infringement with any third party’s proprietary rights; or (ii) challenging the
ownership or use by the Company or any such Subsidiary of, or the validity or
enforceability of, any Company Intellectual Property.


(b)           Schedule 4.20(b)
sets forth a true and complete list of all Patents, Patent applications,
registered Trademarks (and applications therefor) and registered Copyrights
(and applications therefor) used by Company or any of its Subsidiaries in
connection with its business as presently conducted (“Listed Intellectual Property”)
and the owner of record, date of 


 


44





















 


application or issuance and
relevant jurisdiction as to each.  Except
as described in Schedule 4.20(b),
all Listed Intellectual Property is owned by the Company and its Subsidiaries,
free and clear of Liens or claims of any nature. Except as listed in Schedule 4.20(b), no Listed Intellectual
Property is the subject of any legal or governmental proceeding before any
governmental, registration or other authority in any jurisdiction, including
any office action or other form of preliminary or final refusal of
registration.


(c)           Schedule 4.20(c)
sets forth a true and complete list of all: 
(i) Licenses and other agreements in which the Company or any Subsidiary
of the Company or any sublicensee of any thereof has granted to any Person the
right to use the Company Intellectual Property; and (ii) all other consents,
indemnifications, forbearances to sue, settlement agreements and licensing or
cross-licensing arrangements to which the Company or any of its Subsidiaries is
a party relating to the Intellectual Property or the proprietary rights of any
third party, other than “off-the-shelf” software and the like licensed by the
Company or any of its Subsidiaries as licensee. 
Except as set forth in Schedule
4.20(c), neither the Company nor any of its Subsidiaries is under
any obligation to pay royalties or other payments in connection with any
license, sublicense or other agreement, nor restricted from assigning its
rights under any sublicense or agreement respecting the Company Intellectual
Property nor will the Company nor any of its Subsidiaries otherwise be, as a
result of the execution and delivery of this Agreement or the performance of
its obligations under this Agreement, in breach of any license, sublicense or
other agreement relating to the Company Intellectual Property.


(d)           No present or former employee, officer or director of the
Company or any of its Subsidiaries, or agent or outside contractor of the
Company or any of its Subsidiaries, holds any right, title or interest,
directly or indirectly, in whole or in part, in or to any Company Intellectual
Property.


(e)           Except as set forth on Schedule
4.20(e), to the knowledge of the Company and its Subsidiaries: (i)
none of the Company Intellectual Property has been used, divulged, disclosed or
appropriated to the detriment of the Company or any of its Subsidiaries for the
benefit of any Person other than the Company and its Subsidiaries; and (ii) no
employee, independent contractor or agent of the Company or any of its
Subsidiaries has misappropriated any trade secrets or other confidential
information of any other Person in the course of the performance of his or her
duties as an employee, independent contractor or agent of the Company and its
Subsidiaries.


(f)            To the knowledge of the Company and its Subsidiaries, the
Company’s and its Subsidiaries’ transmission, use, modification (including
framing, if applicable), linking and other practices in respect of content
proprietary to any other Person do not infringe or violate any proprietary or
other right of any such Person and, to the knowledge of the Company and its
Subsidiaries, no claim in respect of any such infringement or violation is
threatened or pending.


Section
4.21.          Software. 


(a)           Schedule 4.21
hereto lists the operating systems and applications computer software programs
and databases used by the Company or any of its Subsidiaries that are material 


 


45





















 


to the conduct of their business as
now conducted and as presently contemplated to be conducted, other than “off-the-shelf”
software and the like licensed by the Company or any of its Subsidiaries as
licensee (collectively, the “Software”), and separately identifies that portion of
the Software that was developed by or under contract with the Company and its
Subsidiaries (collectively, the “Proprietary Software”). The Company and its
Subsidiaries: (i) hold valid licenses to use, reproduce, modify, distribute and
sublicense all copies of the Software, other than the Proprietary Software, and
(ii) either own, or have a perpetual, royalty-free license to use, reproduce,
modify, distribute and sublicense the Proprietary Software, and, except as
listed on Schedule 4.21, the
Company and its Subsidiaries have not sold, licensed, leased or otherwise
transferred or granted any interest or rights in or to any portion
thereof.  To the knowledge of the Company
and its Subsidiaries, none of the Software used by the Company or any of its
Subsidiaries, nor any use thereof, conflicts with, infringes upon or violates
any Intellectual Property or other proprietary rights of any other Person and,
to the knowledge of the Company and its Subsidiaries, no claim, suit, action or
other proceeding with respect to any such infringement or violation is
threatened or pending.  Except as set
forth on Schedule 4.21, the
Company and its Subsidiaries have taken steps reasonably necessary to protect
their right, title and interest in and to the Proprietary Software, including
the execution of appropriate confidentiality agreements.


(b)           The Company and its Subsidiaries possess or have access to
the original and all copies of all documentation and all source code or
password protected code, as applicable, for all the Proprietary Software owned
by them.  Upon consummation of the
transactions contemplated by this Agreement, the Company and its Subsidiaries
will continue to own all the Proprietary Software owned by them, free and clear
of all claims, liens, encumbrances, obligations and liabilities other than
Permitted Liens and, with respect to all agreements for the lease or license of
Proprietary Software which require consents or other actions as a result of the
consummation of the transactions contemplated by this Agreement in order for
the Company and its Subsidiaries to continue to use and operate such Software
after the Closing Date, the Company and its Subsidiaries will have obtained
such consents or taken such other actions so required.


(c)           Any material programs, modifications, enhancements or
other inventions, improvements, discoveries, methods or works of authorship (“Works”) that were
created by employees of the Company or its Subsidiaries were made in the
regular course of such employees’ employment or service relationships with the
Company and its Subsidiaries using the Company’s and its Subsidiaries’
facilities and resources and, as such, constitute works made for hire.  Each such employee who has created Works or
any employee who in the regular course of his employment may create Works and
all consultants have signed an assignment or similar agreement with the Company
or its Subsidiaries confirming the Company’s or such Subsidiaries’ ownership
or, in the alternative, transferring and assigning to the Company or one of its
Subsidiaries all right, title and interest in and to such programs,
modifications, enhancements or other inventions including copyright and other
intellectual property rights therein.


Section 4.22.          Deposit
Accounts; Securities Accounts.  Schedule 4.22
hereto contains a true and complete list of all Deposit Accounts, and a
separate true and
complete list of all Securities Accounts maintained by the Company or any of
its Subsidiaries, setting forth the name and address of each bank, savings
institution or other depositary institution at which each such 


 


46





















 


Deposit
Account is maintained and the name and address of each bank, securities broker
or dealer, or other financial intermediary at which each such Securities
Account is maintained, and stating the title and account number of each such
Deposit Account or Securities Account (as the case may be).


Section 4.23.          Interest in Competitors.   Neither the Company nor any of its
Subsidiaries, nor any of their respective officers or (to their knowledge)
directors, has any interest, either by way of contract or by way of investment
(other than as holder of not more than 2% of the outstanding Equity Interests
of a publicly traded Person) or otherwise, directly or indirectly, in any
Person other than the Company and its Subsidiaries that (i) provides any
services or designs, produces or sells any product or product lines or engages
in any activity competitive with any activity currently proposed to be
conducted by the Company or any of its Subsidiaries or (ii) has any direct or
indirect interest in any asset or property, real or personal, tangible or
intangible, of the Company or any of its Subsidiaries.


Section 4.24.          Related Party Transactions.  Except as set forth in Schedule 4.24, (i) no officer, director or
Affiliate of the Company or its Subsidiaries provides or causes to be provided
any assets, services or facilities to the Company or its Subsidiaries, or has
entered into any agreement or arrangement to provide such assets, services or
facilities to the Company or its Subsidiaries (except, in the case of any such
officer or director, for services provided in his or her capacity as such and
agreements with respect thereto), (ii) the Company and its Subsidiaries do not
provide or cause to be provided any assets, services or facilities to any such
officer, director or Affiliate, and have not entered into any agreement or
arrangement to provide any such assets, services or facilities to any such
Persons (except, in the case of any such officer or director, for compensation
and benefits paid to such Person for his or her services in such capacity in
the ordinary course of business and agreements and arrangements with respect
thereto), and (iii) there are no other leases, Licenses or other contracts or
contractual arrangements between the Company or any of its Subsidiaries and any
such officer, director or Affiliate.


Section 4.25.           Registration
Rights.   Except as set forth in Schedule 4.25 and except as provided in the Registration
Rights Agreement, neither the Company nor any of its Subsidiaries is under any
obligation to register under the Securities Act any of its outstanding
securities or any of its securities that may be issued subsequently.  


Section 4.26.          [Reserved].   


Section 4.27.          Existing Indebtedness and
Contingent Obligations. 
Set forth on Schedule 4.27 is a true and
complete list and brief description of (a) all Indebtedness of the
Company and its Subsidiaries, specifying in each case the name and address of
each Person to whom such Indebtedness is owed and the outstanding amount of the
principal thereof, accrued interest thereon and any other amounts owed in
connection therewith, and indicating in each case whether such Indebtedness is
secured and, if so, describing the assets constituting the collateral therefor,
and (b) all Contingent Obligations of the Company and its Subsidiaries,
including the amounts thereof and the name and address of each Person to whom
any such Contingent Obligation is owed, and indicating in each case whether
such Contingent Obligation is secured and, if so, describing the assets
constituting the collateral therefor. 
True and complete copies of 


 


47





















 


all credit agreements, loan
agreements, mortgages, indentures, security agreements, notes, guarantees,
letters of credit and other agreements, instruments and documents evidencing
such Indebtedness and Contingent Obligations, with all amendments thereto, have
previously been delivered to the Purchasers or their representatives.


Section 4.28.          Customers.   Set forth on Schedule
4.28 is a true and complete
list of the names and addresses of all customers of the Company and its
Subsidiaries which accounted for 5% or more of the Company’s and its
Subsidiaries’ gross revenues during the fiscal year ended September 30, 2004,
together with the respective percentages of the Company’s and its Subsidiaries’
gross revenues represented by each such customer.  Except as set forth on Schedule
4.28, the Company has no notice or knowledge that any such
customer will, or has any plan or intention to, cease to purchase products or
services from the Company or its Subsidiaries or reduce to a material extent
the amount of products and services it purchases from the Company or its
Subsidiaries.


Section 4.29.          Eligible
Portfolio Company.  The Company is organized under
the laws of the State of Montana and has its principal place of business in the
State of California.  After giving effect
to the transactions contemplated by this Agreement, the Company is neither an
investment company as defined in Section 3 of the Investment Company Act nor a
company which would be an investment company except for the exclusion from the
definition of investment company in Section 3(c) of the Investment Company
Act.  The Company does not have any class
of securities with respect to which a member of a national securities exchange,
broker, or dealer may extend or maintain credit to or for a customer pursuant
to rules or regulations adopted by the Board of Governors of the Federal
Reserve System under Section 7 of the Exchange Act.


Section 4.30.          Margin
Regulations; Public Utility Holding Company Act.


(a)           Neither the Company
nor any of its Subsidiaries is engaged or will engage, principally or as one of
its important activities, in the business of purchasing or selling Margin
Stock, or extending credit for the purpose of purchasing or carrying Margin
Stock.  None of the proceeds of the
issuance and sale of the Notes shall be used for the purpose of purchasing or
carrying Margin Stock.  Neither the
Company nor any of its Subsidiaries, nor any agent acting on behalf of the
Company or any of its Subsidiaries, has taken or will take any action which
might cause this Agreement or the Notes to violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or Section 7 of the Exchange
Act, in each case as in effect now or as the same may hereafter be in effect.


(b)           Neither the Company
nor any of its Subsidiaries is a “holding company” or a “subsidiary company” of
a “holding company”, within the meaning of the Public Utility Holding Company
Act of 1935, as amended.


Section 4.31.          Solvency.  Both immediately before and immediately after giving effect to the
issuance of the Notes and the transactions contemplated by this Agreement, the
Company is, individually, and the Company and its Subsidiaries on a
consolidated basis are, Solvent.


 


48





















 


Section 4.32.          Foreign
Assets Control Regulations and Anti-Money Laundering. 


(a)           OFAC.  Neither the Company nor any Subsidiary of the
Company (i) is a Person whose property or interest in property is blocked or
that has been determined to be subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) knowingly engages in any dealings or
transactions prohibited by Section 2 of such executive order, or otherwise
knowingly associates with any such person in any manner violative of Section 2,
or (iii) is a Person on the list of Specially Designated Nationals and Blocked
Persons published by the Office of Foreign Assets Control of the United States
Department of the Treasury on June 24, 2003, as updated from time to time, or
subject to the limitations or prohibitions under any other United States
Department of the Treasury’s Office of Foreign Assets Control regulation or
executive order.


(b)           Patriot Act.  The Company and each of its Subsidiaries are
in compliance, in all material respects, with the Patriot Act.  No part of the proceeds of the Notes will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


Section 4.33.          Internal Accounting Controls.  The
Company and its Subsidiaries have established a system of internal
accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.


Section 4.34.          Offering
of Securities.  None of the Company or its representatives has,
directly or indirectly,
offered any of the Preferred Shares, Warrants or Notes or any security similar
to any of them for sale to, or solicited any offers to buy any of the Preferred
Shares, Warrants or Notes or any security similar to any of them from, or
otherwise approached or negotiated with respect thereto with, more than ten
(10) Persons including the Purchasers, and none of the Company or its
representatives has taken or will take any action which would subject the
issuance or sale of any of the Preferred Shares, Warrants or Notes to the
provisions of Section 5 of the Securities Act or violate the provisions of any
securities or Blue Sky laws of any applicable jurisdiction.


Section 4.35.          Broker’s
or Finder’s Commissions.  Except as set forth on Schedule
4.35 hereto, no broker’s
or finder’s fee or commission will be payable by the Company with respect to
the issuance and sale of the Preferred Shares, Warrants or Notes.  The Company agrees to indemnify each of the
Purchasers and hold each of them harmless against any loss, cost, claim or
liability (including reasonable attorneys’ fees and disbursements for the
investigation and defense of claims) arising out of or relating to any such
actual or alleged fee or commission. 


 


49





















 


Section 4.36.          Acquisition
Transactions.  The Acquisition Agreement
and the other agreements and documents
contemplated thereby (the “Acquisition Documents”)
have been duly executed, delivered and performed in accordance with their terms
by the respective parties thereto in all respects, including the fulfillment
(not merely the waiver, except as may be disclosed to and consented to in
writing by the Purchaser) of all conditions precedent set forth therein, the
Acquisition Transactions have been completed in accordance with the terms and
provisions of the Acquisition Documents, and the Company or its subsidiaries
have acquired and have good and marketable title to the assets and business of
SDI and SBN.  All actions and proceedings
required by the Acquisition Documents, applicable law or regulation (including,
but not limited to, compliance with the Hart-Scott-Rodino Anti-Trust
Improvements Act of 1976, as amended, if applicable) have been taken and the
transactions required thereunder have been duly and validly taken and
consummated.  No court of competent
jurisdiction has issued any injunction, restraining order or other order which
prohibits consummation of the Acquisition Transactions and no governmental or
other action or proceeding has been threatened or commenced, seeking any
injunction, restraining order or other order which seeks to void or otherwise
modify the Acquisition Transactions.  The
Company has delivered, or caused to be delivered, to the Purchaser true,
correct and complete copies of all of the Acquisition Documents, including all
amendments thereto.


Section 4.37.          Disclosure.  Neither this Agreement nor any other
document, certificate or statement furnished to the Purchasers
by or on behalf of the Company in connection herewith, contained, as of its
respective date, or now contains, any untrue statement of a material fact or as
of any such date omitted, or now omits, to state a material fact necessary in
order to make the statements contained herein and therein not misleading.


Section 5.               Representations
of Purchasers.  Each of the Purchasers represents to the Company
that (a) it is an “accredited
investor,” within the meaning of Rule 501 promulgated by the SEC under the
Securities Act, and (b) it is acquiring the Notes to be purchased by it
hereunder for its own account, for investment, and not with a view to or for
sale in connection with any distribution thereof in violation of the
registration provisions of the Securities Act or the rules and regulations
promulgated thereunder.


Section 6.               [Reserved]


Section 7.               Financial
Statements and Information.  The Company will furnish to each Purchaser, so long as it shall hold
any Notes, and, in the case of the items referred to in subsections (a), (b),
(c)(i), (f) and (g) of this Section 7, so long as it shall hold any Warrants or
any shares of Company Common Stock issued upon the exercise of Warrants:


(a)           Monthly Financials. 
As soon as available and in any event within 30 days after the end of
each of month, copies of the unaudited consolidated and
consolidating balance sheets of the Company and its Subsidiaries as of the end
of such month, and of the related unaudited consolidated and consolidating
statements of income, retained earnings and cash flows for such month and for
the portion of the fiscal year ended with the last day of such month, all in
reasonable detail and stating in comparative form (i) the consolidated and
consolidating figures as of the end of and for the corresponding date and month
in the previous fiscal year and (ii) the 


 


50





















 


corresponding
figures from the consolidated budget of the Company and its Subsidiaries for
such period, all Certified by the Chief Financial Officer of the Company.


(b)           Quarterly
Financial Statements.  As soon as
available and in any event within 45 days after the end of each fiscal quarter
of the Company, copies of the unaudited consolidated and consolidating balance
sheets of the Company and its Subsidiaries as of the end of such fiscal
quarter, and of the related unaudited consolidated and consolidating statements
of income, retained earnings and cash flows for such fiscal quarter and for the
portion of the fiscal year ended with the last day of such fiscal quarter, all
in reasonable detail and stating in comparative form (i) the consolidated and
consolidating figures as of the end of and for the corresponding date and
fiscal quarter in the previous fiscal year and (ii) the corresponding figures
from the consolidated budget of the Company and its Subsidiaries for such
period, all Certified by the Chief Financial Officer of the Company.


(c)           Annual Financial
Statements.  As soon as available and
in any event within 90 days after the end of each fiscal year of the Company,


(i)            copies
of the audited consolidated and unaudited consolidating balance sheets of the
Company and its Subsidiaries as of the end of such fiscal year, and of the
related audited consolidated and unaudited consolidating statements of income,
retained earnings and cash flows for such fiscal year, together with the notes
thereto, all in reasonable detail and stating in comparative form (A) the
respective audited consolidated and unaudited consolidating figures as of the
end of and for the previous fiscal year and (B) the corresponding figures from
the consolidated budget of the Company and its Subsidiaries for such fiscal
year furnished pursuant to Section 7(n), (x) in the case of such audited
consolidated financial statements, accompanied by a report thereon of the
Accountants, which report shall be unqualified as to going concern and scope of
audit and shall state that such consolidated financial statements present
fairly, in all material respects, the consolidated financial position of the
Company and its Subsidiaries as at the end of such fiscal year and the
consolidated results of their operations, retained earnings and cash flows for
such fiscal year in accordance with GAAP applied on a basis consistent with
prior years (except as otherwise stated therein) and that the examination by
the Accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards, and (y) in
the case of such unaudited consolidating financial statements, Certified by the
Chief Financial Officer of the Company; and


(ii)           a
written statement of the Accountants that (A) based upon their review of
the statements with respect to financial covenants contained in the Compliance
Certificate furnished by the Company as of the end of such fiscal year, they have
no reason to believe that such statements are not true and accurate in all
material respects, and (B) in making the examination necessary for their
report on such financial statements they obtained no knowledge of any Default
or Event of Default that occurred or existed during such fiscal year, or if
such Accountants shall have obtained knowledge of any such Default or Event of
Default, specifying the nature and status thereof.


 


51





















 


(d)           Compliance
Certificate.  Concurrently with each
of the quarterly and annual financial statements furnished pursuant to Section
7(b) and Section 7(c), a Compliance Certificate properly completed as of the
last day of the applicable fiscal quarter or fiscal year and signed by the
Chief Financial Officer of the Company.


(e)           Bank Statements.  Promptly after receipt thereof, copies of
monthly statements for each of the Deposit Accounts and Securities Accounts
maintained by the Company and each of its Subsidiaries.


(f)            Shareholder Reports.  Promptly after the same are available and in
any event within 15 days thereof, copies of all such proxy statements,
financial statements, notices and reports as the Company or any of its
Subsidiaries shall send or make available generally to their securityholders,
and copies of all regular and periodic reports and of all registration
statements (other than on Form S-8 or a similar form) which the Company
or any of its Subsidiaries may file with the SEC or with any securities
exchange.


(g)           Management
Letters.  Promptly after the receipt
thereof by the Company or any of its Subsidiaries, and in any event within 15
days thereof, copies of any management letters and any reports as to material
inadequacies in accounting controls (including reports as to the absence of any
such inadequacies) submitted to the Company by the Accountants in connection
with any audit thereof made by the Accountants.


(h)           Notice of Default.  Promptly (and in any event within 5 Business
Days) after any Responsible Officer of the Company or any of its Subsidiaries
has knowledge of (1) the existence of any Default or Event of Default on the
part of the Company, an Officer’s Certificate of the Company specifying the
nature and period of existence thereof and what action the Company is taking or
proposes to take with respect thereto; or (2) any Indebtedness of the Company
or any of its Subsidiaries being declared due and payable before its expressed
maturity, or any holder of such Indebtedness having the right to declare such
Indebtedness due and payable before its expressed maturity, because of the
occurrence of any default (or any event which, with notice and/or the lapse of
time, shall constitute any such default) under such Indebtedness, an Officer’s
Certificate of the Company describing the nature and status of such matters and
what action the Company or such Subsidiary is taking or proposes to take with
respect thereto.


(i)            Regulatory and Intellectual Property Filings.  As soon as
reasonably practicable but in any event within five (5) Business Days after
receipt or delivery thereof, (i) copies of any and all material notices and
other material communications received by and the Company or its Subsidiaries
from, or sent by the Company to, any federal or state regulatory body with jurisdiction
over the Company’s or such Subsidiary’s products, services, business and/or
processes with respect to the Company or any of its Subsidiaries or any of
their respective products, services or practices and (ii) copies of all filings
by the Company or its Subsidiaries with the United States Patent and Trademark
Office or the United States Copyright Office with respect to any Intellectual
Property of the Company or its Subsidiaries, all non-infringement opinions of
counsel or advisors to the Company or its Subsidiaries pertaining thereto and
all material Licenses entered into by the Company or its Subsidiaries in
respect thereof (whether as licensor or licensee).


 


52





















 


(j)            Notice of
Infringement Claims.  As soon as
reasonably practicable and in any event within five
(5) Business Days after a Responsible Officer of the Company has
knowledge of the assertion by or against the Company or any of its Subsidiaries
of any claim for, or the actual or threatened commencement of any judicial,
administrative or arbitral action, suit or proceeding by or against the Company
or any of its Subsidiaries with respect to, (i) any actual or alleged
infringement by any third party of any Patent, Trademark, Copyright or other Intellectual
Property or rights relating thereto owned or used by the Company or any of its
Subsidiaries, (ii) any actual or alleged infringement by the Company or any of
its Subsidiaries of any Patent, Trademark, Copyright or other Intellectual
Property or rights relating thereto owned or used by any third party, or (iii)
any actual or alleged breach or violation of any License to which the Company
or any of its Subsidiaries is a party, whether by the Company or any of its
Subsidiaries or by any other party thereto, an Officer’s Certificate of the
Company describing the nature and status of such matter in reasonable detail.


(k)           Notice of
Litigation.  Promptly (and in any
event within 15 days) after the Company has knowledge of (i) the
institution of, or threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Company or any of its
Subsidiaries or any property of any of them, or (ii) any material
development in any such action, suit, proceeding, governmental investigation or
arbitration, which, in either case, if adversely determined, is likely to have
a Material Adverse Effect, an Officer’s Certificate of the Company describing
the nature and status of such matter in reasonable detail.


(l)            ERISA Notices.  Promptly after any Responsible Officer of the
Company or any of its Subsidiaries has knowledge of any of the following events
if the same would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect, an Officer’s Certificate describing the
nature and status of such event, together with a copy of any notice with
respect to such event that may be required to be filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Company
or any ERISA Affiliate with respect to such event:


(i)            an
ERISA Event;


(ii)           the
adoption of any new Pension Plan by the Company or any ERISA Affiliate;


(iii)          the
adoption of any amendment to a Pension Plan, if such amendment results in a
material increase in benefits or unfunded liabilities; or


(iv)          the
commencement of contributions by the Company or any ERISA Affiliate to any
Multiemployer Plan or any Pension Plan.


(m)          Notice of Material
Adverse Effect.  Promptly after any
Responsible Officer of the Company or any of its Subsidiaries has knowledge of
any Material Adverse Effect with respect to which notice is not otherwise
required to be given pursuant to this Section 7, an Officer’s Certificate of
the Company setting forth the details of such Material Adverse Effect and
stating 


 


53





















 


what
action the Company or any of its Subsidiaries has taken or proposes to take
with respect thereto.


(n)           Annual Budget.  Not later than 30 days prior to the beginning
of each fiscal year, an annual operating budget of the Company and its
Subsidiaries, on both a consolidated and consolidating basis, (i) for such
fiscal year, containing projections of profit and loss, cash flow and ending
balance sheets for each month of such fiscal year, and (ii) for the succeeding
two (2) years, containing projections of profit and loss, cash flow and ending
balance sheets for each of such years; and thereafter, promptly upon
preparation thereof, all amendments and revisions thereto which may be made from
time to time.


(o)           Annual Insurance
Report.  At least once in each fiscal
year, a report of a reputable insurance broker with respect to all insurance
maintained by the Company and its Subsidiaries, together with a certificate of
insurance evidencing the effectiveness of the policies of insurance required to
be maintained by the provisions of Section 9.6(a).


(p)           Certain Changes and Conduct of Business.  Promptly after the
occurrence thereof, notice of all material developments in the assets,
liabilities, ownership, operations or business of the Company and its
Subsidiaries, including (i) any issuance of debt securities or incurrence of
any Indebtedness by the Company or any of its Subsidiaries, (ii) a change in
the number of members of the board of directors of the Company, (iii) a sale,
lease or transfer of any material portion of the assets of the Company or any
of its Subsidiaries, other than in the ordinary course of business, (iv) an
acquisition of the Equity Interests of any Person, or of any material assets of
any Person or division or line of business of any Person, other than in the
ordinary course of business, and (v) any change in the outstanding number or
ownership of the shares of Company Common Stock or Company Preferred Stock
(specifying the details of any such change, including the identity and
ownership amount of any new owner).  The
Company shall provide the Purchasers with any written information provided to
the board of directors or board of managers (or similar body) of the Company or
any of its Subsidiaries in their respective capacities as such.


(q)           Related Party Transactions.  Within 90 days after the end of each fiscal
year, a report describing in reasonable detail the nature and amount of (i) all
transactions of the type disclosed in Schedule 4.24
engaged in by the Company and its Subsidiaries during such fiscal year, and
(ii) all other transactions during such fiscal year between the Company or its
Subsidiaries and any officer, director or Affiliate of the Company or any such
Subsidiary, other than compensation and benefits paid by the Company and its
Subsidiaries to their officers, directors and employees in the ordinary course
of business consistent with past practice.


(r)            Other
Information.  Any other information,
including financial statements and computations, relating to the performance of
Obligations arising under this Agreement or the other Note Documents, or the
assets, liabilities, business, operations or prospects of the Company or any of
its Subsidiaries, that the Majority Purchasers may from time to time reasonably
request and which is capable of being obtained, produced or generated by the
Company or such Subsidiary or of which any of them has knowledge.


 


54





















 


Section 8.               Inspection
Rights; Board Observation Rights.


Section 8.1.            Inspection
of Books and Properties.   So long as any Notes shall be outstanding,
the Collateral Agent and
its representatives and independent contractors shall have the right to visit
and inspect any of the properties and locations of the Company and its
Subsidiaries, to examine their books of account and Records, to make copies and
extracts therefrom at their expense, and to discuss their affairs, finances and
accounts with, and to be advised as to the same by, their officers and
employees and their independent public accountants, all at such reasonable
times during normal business hours as the Collateral Agent may desire, upon
reasonable advance notice to the Company and at the sole cost and expense of
the Collateral Agent; provided that, during the continuance of any
Default or Event of Default, the Collateral Agent and its representatives and
independent contractors shall have the right to do any of the foregoing at the
expense of the Company at any time during normal business hours and without
advance notice.


Section 8.2.            Board
of Directors; Observation Rights.  The Company shall cause its
board of directors to
hold a meeting at least once during each fiscal quarter of the Company.  So long as any Notes shall be outstanding,
the Collateral Agent may at its option designate by written notice to the
Company a representative (the “Observer”),
who shall have the right to attend all meetings of the board of directors of
the Company and of any Subsidiary thereof, and of any committees of such boards
of directors, without voting on or consenting to any matters presented at such
meetings.  The Observer shall be entitled
to receive copies of all notices of meetings of the board of directors of the
Company or any such Subsidiary and of any such committee, and all written
materials distributed to members thereof in connection with such meetings, in
each case at the same time and in the same manner as the members of such board
of directors or committee (as the case may be) receive such notices or
materials.  If such board of directors or
committee proposes to take any action by written consent in lieu of a meeting,
the Company will give written notice thereof to the Observer prior to the
effective date of such consent describing in reasonable detail the nature of
such action, together with copies of any written materials distributed to
directors in connection therewith.


Section 9.               Affirmative
Covenants.  The Company covenants and agrees that so long
as any of the Notes
shall be outstanding:


Section 9.1.            Payment
of Principal, Prepayment Charge and Interest.  The Company will duly and punctually pay the
principal of, prepayment charge (if any) and interest on the Notes in
accordance with the terms of such Notes and this Agreement.  The Company will comply with all of the
covenants, agreements and conditions contained in this Agreement.


Section 9.2.            Maintenance
of Corporate Existence, Properties and Records.  The Company will, and will cause each of its
Subsidiaries to:


(a)           do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights, powers and franchises including any necessary qualification
or licensing in any foreign jurisdiction, provided that the Company may
effect a Permitted Change of Jurisdiction;


 


55





















(b)           maintain its
properties in good condition, reasonable wear and tear excepted, and make all
necessary renewals, repairs, replacements, additions, betterments, and
improvements thereto;


(c)           preserve or renew
all of its Patents, Trademarks, Copyrights, Licenses and other Intellectual
Property, the non-preservation of which would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect, and
conduct its business and affairs without infringement of or interference with
any Intellectual Property of any other Person in any material respect;


(d)           keep books of
account and other Records in which full and correct entries will be made of all
of its business transactions, and reflect in its financial statements adequate
accruals and appropriations to reserves, all in accordance with GAAP; and


(e)           maintain the same
fiscal year during and after the current fiscal year ending September 30, 2005.


Section 9.3.            Payment
of Taxes and Claims.  The Company will, and will
cause each of its Subsidiaries to, pay before they become delinquent:


(a)           all taxes,
assessments and governmental charges or levies imposed upon the Company or any
of its Subsidiaries or their income or profits or upon their property, real,
personal or mixed, or upon any part thereof;


(b)           all claims for
labor, materials and supplies which, if unpaid, might result in the creation of
a Lien upon property of the Company or any of its Subsidiaries; and


(c)           all claims,
assessments, or levies required to be paid by the Company or any of its ERISA
Affiliates pursuant to any Plan or Multiemployer Plan or any agreement,
contract or Requirement of Law governing or relating to any such plan;


provided,
that the taxes, assessments, claims, charges and levies described in
subsections (a) and (b) of this Section 9.3 need not be paid while being
diligently contested in good faith and by appropriate proceedings so long as
(i) adequate book reserves have been established with respect thereto in accordance
with GAAP and (ii) neither the Company’s nor any such Subsidiary’s title to or
right to use its property is materially adversely affected by such non-payment.
The Company will timely file, and will cause its Subsidiaries to file, all tax
returns required to be filed in connection with the payment of taxes required
by this Section 9.3.


 


Section 9.4.            Compliance
With Law.  The Company will, and will cause each of its
Subsidiaries to comply with all applicable Requirements of Law, franchises,
authorizations, licenses and permits of, and all applicable restrictions
imposed by, any Governmental Authority in respect of the conduct of its
business and the ownership of its properties (including all Environmental Laws
and all applicable Requirements of Law, franchises, authorizations, licenses
and permits relating to fair labor standards, equal employment opportunities
and occupational health and safety), including the timely filing or
distribution to the Company’s stockholders of all 


 


56





















 


reports
and statements which the Company is required to so file or distribute under the
Exchange Act, the rules and regulations of the SEC promulgated thereunder or
the applicable rules of any securities market on which the Company Common Stock
is listed.


Section 9.5.            Environmental
Matters.  The Company will, and will cause each of its
Subsidiaries to:  (a) conduct its
operations and keep and maintain all real property owned or used by it in
compliance with all Environmental Laws and Environmental Permits other than
noncompliance that could not reasonably be expected to have a Material Adverse
Effect; (b) implement any and all investigations, remediations, removals
and response actions that are appropriate or necessary to maintain the value
and marketability of such real property or to otherwise comply with
Environmental Laws and Environmental Permits pertaining to the presence,
generation, treatment, storage, use, disposal, transportation or Release of any
Hazardous Material on, at, in, under, above, to, from or about any of such real
property; (c) notify the Collateral Agent promptly after any Responsible
Officer of the Company or any of its Subsidiaries has knowledge of any
violation of Environmental Laws or Environmental Permits or any Release on, at,
in, under, above, to, from or about any such real property that is reasonably
likely to result in liabilities in excess of $50,000 in the aggregate; and (d) promptly
forward to the Collateral Agent a copy of any order, notice, request for
information or any communication or report received by the Company or any of
its Subsidiaries in connection with any such violation or Release or any other
matter relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in liabilities in excess of $50,000 in the
aggregate, in each case whether or not the Environmental Protection Agency or
any Governmental Authority has taken or threatened any action in connection
with any such violation, Release or other matter.  If the Collateral Agent at any time has a
reasonable basis to believe that there may be a violation of any Environmental
Laws or Environmental Permits by any the Company or any of its Subsidiaries or
any liability arising thereunder, or a Release of Hazardous Materials on, at,
in, under, above, to, from or about any of such real property, that, in each
case, could reasonably be expected to have a Material Adverse Effect, then upon
the Collateral Agent’s written request the Company shall, and shall cause its
Subsidiaries to, (i) cause the performance of such environmental audits
including subsurface sampling of soil and groundwater, and preparation of such
environmental reports, at the Company’s expense, as the Collateral Agent may
from time to time reasonably request, which shall be conducted by reputable
environmental consulting firms reasonably acceptable to the Collateral Agent
and shall be in form and substance reasonably acceptable to the Collateral
Agent, and (ii) permit the Collateral Agent or its representatives to have
access to all such real property for the purpose of conducting such
environmental audits and testing as the Collateral Agent deems appropriate,
including subsurface sampling of soil and groundwater.  The Company shall reimburse the Collateral
Agent upon demand for the costs of such audits and tests.


Section 9.6.            Insurance.


(a)           The Company shall maintain, and shall cause each of
its Subsidiaries to maintain, with independent insurers reasonably believed by
the Company to be financially sound and reputable, (i) property
damage and casualty insurance on all real and personal property of the Company
and its Subsidiaries on an all risks basis, covering the repair and replacement
cost of all such property, and (ii) other insurance with respect to its
business against loss or damage of the 


 


57





















 


kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons, including in any event workers’
compensation insurance, public liability (including products/completed
operations liability coverage) and business interruption insurance. The
coverage amounts of such insurance shall not be reduced by the Company or any
of its Subsidiaries in the absence of thirty (30) days’ prior written notice to
the Collateral Agent.  All property
damage and casualty insurance shall name the Collateral Agent as lender loss
payee/mortgagee, all liability insurance shall name the Collateral Agent as an
additional insured and all business interruption insurance shall name the
Collateral Agent as assignee.


(b)           If the amount of any
insurance proceeds received by the Company or its Subsidiaries, or by the
Collateral Agent, in respect of any occurrence of loss or damage to Collateral
or other property of the Company or its Subsidiaries is less than $100,000 and
no Default or Event of Default shall have occurred and be continuing, such
proceeds shall be retained by the Company or such Subsidiary (or released to
them by the Collateral Agent, as the case may be) and used to pay for the
repair, replacement or reconstruction of the Collateral or other property
subject to such loss or damage. If the amount of such insurance proceeds is
equal to or greater than such amount or if a Default or Event of Default shall
have occurred and be continuing, then such proceeds shall be immediately paid
over to the Collateral Agent (or retained by the Collateral Agent, as the case
may be) on behalf of the Purchasers and applied to the prepayment of the
Indebtedness incurred hereunder in accordance with the provisions of Section
3.1(b).


Section 9.7.            After
Acquired Real Property.  Without affecting the
Obligations of the Company or any of its Subsidiaries under any of the Security
Documents, in the event that the Company or any of its Subsidiaries at any time
after the date hereof acquires any material interest (including a leasehold
interest) in any real property, or any Person having such an interest in real
property shall become a New Subsidiary (each such interest, an “After Acquired Real Property”), the
Company shall immediately provide written notice thereof to the Collateral
Agent, setting forth with specificity a description of the interest acquired,
the location of the After Acquired Real Property, any structures or improvements
thereon and the fair market value of such real property.  As soon as practicable thereafter, the
Company shall execute and deliver, or shall cause the Person holding such After
Acquired Real Property (if other than the Company) to execute and deliver, to
the Collateral Agent a Mortgage on such After Acquired Real Property together
with such other Mortgage Documents relating thereto as the Collateral Agent
shall reasonably require.  The Company
shall also deliver to the Collateral Agent one or more opinions of counsel for
the Company or such Subsidiary (including opinions of local counsel) covering
such legal matters with respect to such Mortgage Documents as the Collateral
Agent may reasonably request.  The Company
shall pay all fees and expenses, including attorneys’ fees and expenses of
counsel for the Collateral Agent, and all title insurance charges and premiums,
in connection with its Obligations under this Section 9.7.


Section 9.8.            Future
Subsidiaries.  If any Person which is not a Subsidiary of the
Company on the date hereof shall hereafter become a direct or indirect
Subsidiary of the Company (each a “New Subsidiary”),
the Company shall, not later than the date on which such Person becomes such a
Subsidiary of the Company, (a) provide written notice to the Collateral 


 


58





















 


Agent
of the formation or acquisition of the New Subsidiary by the Company or its
Subsidiaries, which notice shall describe in reasonable detail the New
Subsidiary, its operations and assets and the nature and ownership of its
outstanding Equity Interests, (b) deliver to the Collateral Agent stock
certificates or other certificates representing all of the outstanding Equity
Interests of the New Subsidiary held by the Company and its Subsidiaries,
accompanied by appropriate stock powers or other assignments duly executed in
blank by the Company or such Subsidiaries (as the case may be), and (c) shall
promptly cause the New Subsidiary to deliver to the Collateral Agent:


(i)            an
Assumption Agreement in the form attached as Annex 1 to the Subsidiary
Guarantee, duly executed by the New Subsidiary;


(ii)           an
Assumption Agreement in the form attached as Annex 1 to the Security Agreement,
duly executed by the New Subsidiary;


(iii)          Mortgage
Documents with respect to each After Acquired Real Property of the New
Subsidiary, and all other items required by Section 9.7 with respect thereto;


(iv)          all
other Security Documents and other documents which may be required under
applicable law, or which the Collateral Agent may reasonably request, in order
to grant, preserve, protect and perfect the validity and first priority of the
Liens and security interests created by the Security Documents in the
Collateral of such New Subsidiary, each duly executed by the New Subsidiary;
and


(v)           one
or more opinions of counsel (including opinions of local counsel) covering such
legal matters with respect to the foregoing agreements and documents as the
Collateral Agent may reasonably request.


The Company and the New Subsidiary shall also take all such other
actions, including the filing or recording of appropriate Uniform Commercial
Code financing statements, fixture filings and other filings, which the
Collateral Agent may reasonably request in order to grant to the Collateral
Agent valid and perfected first priority Liens and security interests in all of
the Collateral owned by the New Subsidiary and otherwise to effectuate the
transactions contemplated by this Agreement and the other Note Documents.


Section 9.9.            Use of
Proceeds.  The proceeds from the sale and issuance of the Preferred
Shares, Notes and Warrants will be used solely (a) to retire existing
Indebtedness of the Company and its Subsidiaries, (b) to pay all or part of the
purchase price of the Acquisition and fees and expenses incurred by the Company
or its Subsidiaries in connection therewith, and (c) for general corporate
purposes.  The Company shall provide each
SBIC Investor and the SBA reasonable access to the Company’s books and records
for the purpose of confirming the use of proceeds from the sale of the
Preferred Shares, Notes and Warrants.


Section 9.10.          Registration
Statement.  Within 30 days after the Closing Date, the Company will file with the SEC either (i) a registration
statement on Form 10-SB under the Exchange Act with respect to the Company
Common Stock or (ii) a registration statement on Form SB-2 under the Securities
Act (either such registration statement, as filed and as from time 


 


59





















 


to time amended, the “Registration Statement”).  The Registration Statement will comply in all
material respects as to form with the applicable requirements of the Exchange
Act or the Securities Act (as the case may be) and the rules promulgated by the
SEC thereunder, and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading. Following the filing of the Registration Statement,
the Company will take all such actions with respect to thereto (including
responding promptly and appropriately to any comments on such registration
statement received from the SEC) that may be reasonably required in order to
induce the SEC to declare the Registration Statement effective at the earliest
practicable date.


Section 9.11.          SBIC
Covenants. 


(a)           So long as any SBIC
Investor holds any securities of the Company, the Company will at all times
comply with the non-discrimination requirements of 13 C.F.R. Parts 112, 113 and
117.


(b)           Within forty-five
(45) days after the end of each fiscal year of the Company and at such other
times as an SBIC Investor may reasonably request, the Company shall deliver to
each SBIC Investor a written assessment, in form and substance satisfactory to
such SBIC Investor, of the economic impact of such SBIC Investor’s financing
specifying the full-time equivalent jobs created or retained in connection with
such investment, and the impact of the financing on the Company’s business in
terms of profits and on taxes paid by the Company and its employees. Upon
request, the Company agrees to promptly provide each SBIC Investor with
sufficient information to permit such SBIC Investor to comply with their
obligations under the Small Business Investment Act of 1958, as amended, and
the regulations promulgated thereunder and related thereto.  Any submission of any financial information
under this Section shall include a certificate of the Company’s president,
chief executive officer, treasurer or chief financial officer.


Section 9.12.          Further
Assurances.  The Company will, and will cause its Subsidiaries
to, from time to time execute, deliver, record, register and file any and all
further documents, financing statements, security agreements, assignments,
mortgages, deeds of trust, and other instruments and documents, and take all
further actions (including filing Uniform Commercial Code financing
statements), which may be required under applicable law, or which the
Collateral Agent may reasonably request, in order to grant, preserve, protect
and perfect the validity and first priority of the Liens and security interests
created by the Security Documents and otherwise to effectuate the transactions
contemplated by this Agreement and the other Note Documents.


Section 10.             Negative
Covenants.  The Company covenants and agrees that
so long as any of the Notes shall be outstanding:


Section 10.1.          Restrictions
on Indebtedness.  The Company will not, and will
not permit any of its Subsidiaries to, incur, create, assume, guarantee or in
any way become liable for, or permit to exist, Indebtedness other than:


(a)           Indebtedness
represented by the Notes;


 


60





















 


(b)           Indebtedness of the
Company and its Subsidiaries existing on the Closing Date and listed on Schedule 4.27;


(c)           Purchase Money
Indebtedness incurred to finance Capital Expenditures permitted by Section
11.1; provided that the principal amount of Purchase Money Indebtedness
incurred pursuant to this Section 10.1(c) shall not exceed $500,000 in the
aggregate at any time outstanding; and


(d)           Indebtedness of any
Wholly-owned Subsidiary of the Company to the Company or to another
Wholly-owned Subsidiary of the Company.


Section 10.2.          Restrictions
on Liens.  The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any Lien upon any of their respective properties or assets whether now
owned or hereafter acquired, except for the following (the “Permitted Liens”):


(a)           Liens for taxes,
assessments, governmental charges or claims the payment of which is not at the
time required by Section 9.3;


(b)           statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law incurred in the ordinary course of business for sums, the
payment of which is not at the time required by Section 9.3;


(c)           Liens (other than
any Lien imposed by ERISA, and other than any Lien securing an obligation for
the payment of borrowed money or for the deferred purchase price of property or
services) incurred or deposits made in the ordinary course of business in
connection with obligations not due or delinquent with respect to workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations;


(d)           attachment or judgment
Liens (including judgment or appeal bonds) not exceeding $100,000 in the
aggregate at any time outstanding, provided that any such Lien shall, within 30
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days after the
expiration of any such stay;


(e)           zoning restrictions,
easements, licenses, reservations, restrictions on the use of real property or
minor irregularities incident thereto (and, with respect to leasehold interests,
Liens and other encumbrances that are incurred, created, assumed or permitted
to exist on or with respect to the leased property and arise by, through or
under or are asserted by a landlord or owner of the leased property, with or
without consent of the lessee) which were not incurred in connection with the
borrowing of money and which do not in the aggregate materially detract from
the value of the property of the Company or any of its Subsidiaries, as the
case may be, or impair the use of such property for the purposes for which such
property is held by the Company or any such Subsidiary;


 


61





















 


(f)            Liens securing
Indebtedness of a Wholly-owned Subsidiary of the Company to the Company or to
another Wholly-owned Subsidiary of the Company;


(g)           Liens existing on
the Closing Date (other than any such Liens that secure Purchase Money
Indebtedness);


(h)           Liens securing
Purchase Money Indebtedness incurred in connection with the purchase,
acquisition or construction by the Company or its Subsidiaries of real
property, improvements thereto, equipment or other fixed assets or intangibles
(including software); provided that (i) such security interests secure
Indebtedness permitted by Section 10.1(c), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within one year
after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed the fair market value of such real property,
improvements or equipment at the time of such acquisition (or construction) and
(iv) such security interests do not apply to any other property or assets
(other than accessions to such real property, improvements or equipment) of the
Company or any of its Subsidiaries;


(i)            any Lien on
property of a Subsidiary of the Company existing at the time it becomes such a
Subsidiary;


(j)            the Liens created
by the Security Documents; and


(k)           the extension,
renewal or replacement of any Lien permitted by subsection (g), (h) or (i)
of this Section 10.2, but only if the principal amount of the Indebtedness
secured by such Lien immediately prior to such extension, renewal or
replacement is not increased and the Lien is not extended to other property.


Section 10.3.          Limitation
on Sale and Leasebacks.  The Company will not, and will not permit any
of its Subsidiaries to:


(a)           enter into any Sale
and Leaseback Transaction other than any Sale and Leaseback Transaction for
which the lease is a Capitalized Lease and the Capitalized Lease is permitted
under Section 10.1(c); or


(b)           enter into any
Synthetic Lease.


Section 10.4.          Mergers,
Consolidations, Sales of Assets and Acquisitions.  The Company will not, and will not permit any
of its Subsidiaries to,
(i) consolidate with or be a party to a merger with any other Person, or (ii)
sell or otherwise Dispose of any or all of the assets of the Company and its
Subsidiaries, or any of the Equity Interests of any direct or indirect
Subsidiary of the Company, or (iii) acquire by purchase or otherwise a majority
of any class of the Equity Interests of any Person, or all or substantially all
of the business or property of any Person or of any operating division or line
of business of any Person, except as follows:


(a)           any Wholly-owned
Subsidiary of the Company may merge or consolidate with or into the Company or
with or into any other Wholly-owned Subsidiary of the Company so long as 


 


62





















 


in
any merger or consolidation involving the Company, the Company shall be the
surviving or continuing corporation;


(b)           the Company may
effect a Permitted Change of Jurisdiction;


(c)           the Company or any
Wholly-owned Subsidiary of the Company may merge or consolidate with a Person
acquired pursuant to a Permitted Acquisition, so long as, in the case of any
such merger by the Company, the Company shall be the surviving or continuing
corporation;


(d)           the Company or any
Wholly-owned Subsidiary of the Company may purchase or acquire all of the
Equity Interests of a Person, or all or substantially all of the assets of a
Person or of a division or line of business of a Person, pursuant to a
Permitted Acquisition;


(e)           the Company and any
of its Subsidiaries may, in the ordinary course of its business, sell or
otherwise Dispose of Inventory owned by the Company or such Subsidiary and
grant non-exclusive licenses on Intellectual Property owned by the Company or
such Subsidiary;


(f)            the Company and any
of its Subsidiaries may sell or otherwise Dispose of obsolete or worn out
property in the ordinary course of business, in an amount not to exceed
$150,000 in the aggregate during any fiscal year of the Company;


(g)           any Subsidiary of
the Company may sell, lease or otherwise Dispose of all or any part of its
assets to the Company or any Wholly-owned Subsidiary of the Company; and


(h)           the Company and its
Subsidiaries may sell or otherwise Dispose of assets other than in the ordinary
course of business (excluding Equity Interests in any direct or indirect
Subsidiary of the Company) if (i) the consideration received by the Company and
its Subsidiaries in respect of any such sale or other Disposition shall be not
less than the fair market value of the assets thereby sold or Disposed of, (ii)
at least seventy-five percent (75%) of the aggregate sales price of such sale
or other Disposition shall be paid in Cash or Cash Equivalents, (iii) both
immediately before and immediately after giving effect to such sale or other
Disposition, no Default or Event of Default shall have occurred and be
continuing, and (iv) the aggregate fair market value of all assets sold or
otherwise Disposed of by the Company and its Subsidiaries pursuant to this subsection
(h) in any fiscal year of the Company shall not exceed $150,000.


Section 10.5.          Conduct
of Business.  The Company will not, and will not permit
any of its Subsidiaries to, engage in any business or activities other than the
Business and any businesses or activities substantially similar or related
thereto.  Without limiting the foregoing,
for a period of one year following the issuance of a Note to an SBIC Investor
pursuant to this Agreement, the Company shall not change the nature of its
business activities if such change would render the Company ineligible as
provided in 13 C.F.R. Section 107.720.


 


63





















 


Section 10.6.          Restricted
Payments and Restricted Investments.  The Company will not, will not permit any of
its Subsidiaries to, directly or indirectly make any
Restricted Payment or Restricted Investment, except:


(a)           payments to any of
the Purchasers required by the provisions of this Agreement or the Stock
Purchase Agreement;


(b)           the declaration and
payment of dividends and distributions by a Wholly-owned Subsidiary of the
Company on its outstanding Equity Interests to the Company or to another
Wholly-owned Subsidiary of the Company; and


(c)           Investments made as
part of a Permitted Acquisition.


Section 10.7.          Disqualified
Redeemable Stock; Issuance of Stock by Subsidiaries.


(a)           The Company will not
issue or at any time have outstanding any Disqualified Redeemable Stock or any
options, warrants or other rights to subscribe for or purchase Disqualified
Redeemable Stock.


(b)           The Company will not
permit any Subsidiary of the Company to (i) issue, sell or otherwise
Dispose of any shares of its common stock or other Common Equity Interests, or
any warrants, options, conversion rights or other rights to subscribe for,
purchase or acquire such common stock or other Common Equity Interests (other
than directors’ qualifying shares, to satisfy preemptive rights or in
connection with a split or combination of shares or a dividend payable in
shares of the same class of common stock or other Common Equity Interests),
except to the Company or to a Wholly-owned Subsidiary of the Company, or
(ii) issue or have outstanding any of its shares of preferred stock or
other Preferred Equity Interests (or any warrants, options, conversion rights
or other rights to subscribe for, purchase or acquire such preferred stock or
other Preferred Equity Interests) other than shares of such preferred stock or
Preferred Equity Interests owned by the Company or a Wholly-owned Subsidiary of
the Company.


Section 10.8.          Transactions
with Affiliates.  Except in the case of (i)
transactions among the Company and its Wholly-owned Subsidiaries, (ii) payments
of reasonable fees, compensation and benefits consistent with past practice,
and provision of reasonable indemnification, to officers, employees,
consultants and agents of the Company and its Subsidiaries for actual services
rendered to the Company and its Subsidiaries in the ordinary course of
business, all as determined by the board of directors or senior management of
the Company in good faith, (iii) payments made pursuant to and in accordance
with the provisions of the Employment Agreements, (iv) payments to directors of
the Company and its Subsidiaries of reasonable fees for service in such
capacity consistent with past practice and reimbursement of actual
out-of-pocket expenses incurred in connection with attending meetings of the
boards of directors of the Company and its Subsidiaries and committees thereof,
and provision of reasonable indemnification to such directors, all as determined
by the board of directors of the Company in good faith, and (v) a Permitted
Change of Jurisdiction, the Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction 


 


64





















 


(including
the purchase, sale, lease or exchange of any property or the rendering of any
service), with any Affiliate of the Company or such Subsidiary unless such
transaction is otherwise permitted under this Agreement, is in the ordinary
course of the Company’s or such Subsidiary’s business and is on fair and
reasonable terms that are not less favorable to the Company or such Subsidiary,
as the case may be, than those that would be obtainable at the time in an arms’
length transaction with a Person who is not such an Affiliate.


Section 10.9.          Operating
Leases.  The Company will not, and will not permit any of
its Subsidiaries to, enter into (as lessee) any lease of real or personal
property (other than Capitalized Leases) having a term greater than one year
(including options to renew or extend any term, whether or not exercised) if,
after giving effect thereto, the aggregate amount of rentals and other payments
required to be made by the Company and its Subsidiaries during any fiscal year
of the Company under all such leases would be greater than $250,000.


Section 10.10.        Contingent
Obligations.  The Company will not, and will not or permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Contingent Obligations except:


(a)           Contingent
Obligations incurred pursuant to this Agreement and the other Note Documents;


(b)           Swap Contracts
entered into in the ordinary course of business for bona fide hedging purposes
and not for purposes of speculation;


(c)           Contingent
Obligations of the Company and its Subsidiaries existing as of the Closing Date
and listed in Schedule 4.27, including
extensions and renewals thereof which do not increase the amount of such
Contingent Obligations as of the date of such extension or renewal;


(d)           Contingent
Obligations incurred in the ordinary course of business with respect to surety
and appeal bonds, performance bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);


(e)           Contingent
Obligations resulting from endorsements for collection or deposit in the
ordinary course of business;


(f)            Contingent
Obligations arising under indemnity agreements to title insurers to cause such
title insurers to issue title insurance policies required hereunder; and


(g)           Contingent
Obligations arising with respect to customary indemnification obligations in
favor of purchasers in connection with Dispositions permitted under Section
10.4(h).


Section 10.11.        Limitation
on Dividend Restrictions Affecting Subsidiaries.  Except pursuant to this Agreement, the
Company will not permit
any of its Subsidiaries directly or indirectly to create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
which by its terms restricts the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on such Subsidiary’s Equity
Interests, (b) pay 


 


65





















 


any
Indebtedness owed to the Company or any other Subsidiary of the Company, (c)
make any loans or advances to the Company or any other Subsidiary of the
Company or (d) transfer any of its property or assets to the Company or any
other Subsidiary of the Company.


Section 10.12.        Compliance with ERISA.   The Company will not, and will not permit any
of its Subsidiaries to:


(a)           terminate any Plan
subject to Title IV of ERISA so as to result in any material liability to the
Company or any ERISA Affiliate;


(b)           permit to exist any
ERISA Event or any other event or condition, which would reasonably be expected
to have a Material Adverse Effect;


(c)           make a complete or
partial withdrawal (within the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material liability to the Company or
any ERISA Affiliate;


(d)           enter into any new
Pension Plan or Multiemployer Plan or modify any existing Pension Plan so as to
increase its obligations thereunder which would reasonably be expected to have
a Material Adverse Effect; or


(e)           permit the present
value of all nonforfeitable accrued benefits under any Pension Plan subject to
Title IV of ERISA (using the actuarial assumptions utilized by the PBGC upon
termination of a Plan) materially to exceed the fair market value of Plan
assets allocable to such benefits, all determined as of the most recent
valuation date for each such Plan.


Section 10.13.        Accounting
Changes.  The Company will not, and
will not permit any of its Subsidiaries
to, (a) make any material change in accounting treatment or reporting
practices, except any material change required by GAAP and which is approved in
writing by the Accountants, or (b) adopt or utilize any change in GAAP or the
application thereof for purposes of determining compliance with the covenants
contained in Sections 10 and 11 hereof or elsewhere herein except as permitted
by Section 1.2(c).


Section 10.14.        No
Amendment of Organizational Documents or Certain Other Documents.  The Company will not, and will
not permit any of its Subsidiaries to, without the prior written consent of the
Majority Purchasers, (a) make any material changes in its equity capital
structure (including in the terms of its authorized or outstanding capital
stock), (b) permit any amendment to, modification of or supplement to the
Organizational Documents of the Company or any Subsidiary of the Company
(including the filing of any certificate establishing, setting forth, amending,
modifying or supplementing the designations, preferences or rights pertaining
to or other terms of any class or series of capital stock of the Company or its
Subsidiaries), or (c) permit any amendment to, modification of or supplement to
any of the Special Documents.


 


66





















 


Section 11.             Financial
Covenants.  The Company covenants and agrees that so long
as any of the Notes
shall be outstanding:


Section 11.1.          Capital
Expenditures.


(a)           The Company will
not, and will not permit any of its Subsidiaries to, make or incur any Capital
Expenditure or any contractual commitment with respect to any Capital
Expenditure if, after giving effect thereto, the aggregate amount of all
Capital Expenditures by the Company and its Subsidiaries in any fiscal year
(commencing with the fiscal year ending on September 30, 2006) would exceed
$400,000.


(b)           No commitment for
any new Capital Expenditures shall be made at any time when a Default or Event
of Default shall have occurred and shall be continuing.


Section 11.2.          Maintenance
of Minimum Interest Coverage.  With respect to each of the
periods of four
consecutive fiscal quarters ending on the respective dates set forth below, the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period will not be less than the corresponding amount set
forth opposite such date:




	
  Period of Four

  	
   

  	
   

  	
   

  
	
  Fiscal
  Quarters Ended:

  	
   

  	
  Minimum Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  31, 2005

  	
   

  	
  2.00
  to 1.00

  	
   

  
	
  March
  31, 2006

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  June
  30, 2006

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  September
  30, 2006

  	
   

  	
  3.00
  to 1.00

  	
   

  
	
  December
  31, 2007

  	
   

  	
  3.25
  to 1.00

  	
   

  
	
  March
  31, 2007

  	
   

  	
  3.25
  to 1.00

  	
   

  
	
  June
  30, 2007

  	
   

  	
  3.25
  to 1.00

  	
   

  
	
  September
  30, 2007

  	
   

  	
  3.50
  to 1.00

  	
   

  
	
  December
  31, 2007

  	
   

  	
  3.50
  to 1.00

  	
   

  
	
  March
  31, 2008

  	
   

  	
  3.50
  to 1.00

  	
   

  
	
  June
  30, 2008

  	
   

  	
  3.75
  to 1.00

  	
   

  
	
  September
  30, 2008

  	
   

  	
  3.75
  to 1.00

  	
   

  
	
  December
  31, 2008

  	
   

  	
  3.75
  to 1.00

  	
   

  
	
  March
  31, 2009 and the last day

  	
   

  	
   

  	
   

  
	
   of any subsequent fiscal quarter

  	
   

  	
  4.00
  to 1.00

  	
   

  






 


Section 11.3.          Maintenance
of Maximum Leverage Ratio.   With respect to each of the periods of four consecutive fiscal
quarters ending on the respective dates set forth below, the ratio of (i) Consolidated
Total Indebtedness as of the last day of such period to (ii) the Consolidated
EBITDA for such period will not be greater than the corresponding amount set
forth opposite such date:


 


67





















 




	
  Period of Four

  	
   

  	
   

  	
   

  
	
  Fiscal
  Quarters Ended:

  	
   

  	
  Maximum Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  31, 2005

  	
   

  	
  4.00
  to 1.00

  	
   

  
	
  March
  31, 2006

  	
   

  	
  3.50
  to 1.00

  	
   

  
	
  June
  30, 2006

  	
   

  	
  3.00
  to 1.00

  	
   

  
	
  September
  30, 2006

  	
   

  	
  3.00
  to 1.00

  	
   

  
	
  December
  31, 2007

  	
   

  	
  3.00
  to 1.00

  	
   

  
	
  March
  31, 2007

  	
   

  	
  2.75
  to 1.00

  	
   

  
	
  June
  30, 2007

  	
   

  	
  2.75
  to 1.00

  	
   

  
	
  September
  30, 2007

  	
   

  	
  2.75
  to 1.00

  	
   

  
	
  December
  31, 2007

  	
   

  	
  2.75
  to 1.00

  	
   

  
	
  March
  31, 2008

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  June
  30, 2008

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  September
  30, 2008

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  December
  31, 2008

  	
   

  	
  2.50
  to 1.00

  	
   

  
	
  March
  31, 2009 and the last day

  	
   

  	
   

  	
   

  
	
   of any subsequent fiscal quarter

  	
   

  	
  2.25
  to 1.00

  	
   

  






 


Section 11.4.          Maintenance
of Minimum Consolidated EBITDA.  With respect to each of the periods of four consecutive fiscal
quarters ending on the respective dates set forth below, the amount of
Consolidated EBITDA for such period will not be less than the corresponding
amount set forth opposite such date:


 


68





















 




	
  Period of Four

  	
   

  	
   

  	
   

  
	
  Fiscal
  Quarters Ended:

  	
   

  	
  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  31, 2005

  	
   

  	
  $5,187,000

  	
   

  
	
  March
  31, 2006

  	
   

  	
  $6,096,000

  	
   

  
	
  June
  30, 2006

  	
   

  	
  $7,006,000

  	
   

  
	
  September
  30, 2006

  	
   

  	
  $7,006,000

  	
   

  
	
  December
  31, 2007

  	
   

  	
  $7,238,000

  	
   

  
	
  March
  31, 2007

  	
   

  	
  $7,417,000

  	
   

  
	
  June
  30, 2007

  	
   

  	
  $7,541,000

  	
   

  
	
  September
  30, 2007

  	
   

  	
  $7,719,000

  	
   

  
	
  December
  31, 2007

  	
   

  	
  $7,882,000

  	
   

  
	
  March
  31, 2008

  	
   

  	
  $8,085,000

  	
   

  
	
  June
  30, 2008

  	
   

  	
  $8,329,000

  	
   

  
	
  September
  30, 2008

  	
   

  	
  $8,533,000

  	
   

  
	
  December
  31, 2008

  	
   

  	
  $8,712,000

  	
   

  
	
  March
  31, 2009

  	
   

  	
  $8,935,000

  	
   

  
	
  June
  30, 2009

  	
   

  	
  $9,203,000

  	
   

  
	
  September
  30, 2009

  	
   

  	
  $9,426,000

  	
   

  
	
  December
  31, 2009

  	
   

  	
  $9,621,000

  	
   

  
	
  March
  31, 2010

  	
   

  	
  $9,864,000

  	
   

  
	
  June
  30, 2010

  	
   

  	
  $10,155,000

  	
   

  






 


Section 11.5.          Maintenance
of Minimum Consolidated Revenues.  With respect to each of the periods of four consecutive
fiscal quarters ending on the respective dates set forth below, the amount of
Consolidated Revenues for such period will not be less than the corresponding
amount set forth opposite such date:


 


69





















 




	
  Period of Four

  	
   

  	
   

  	
   

  
	
  Fiscal
  Quarters Ended:

  	
   

  	
  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December
  31, 2005

  	
   

  	
  $16,493,000

  	
   

  
	
  March
  31, 2006

  	
   

  	
  $18,554,000

  	
   

  
	
  June
  30, 2006

  	
   

  	
  $20,615,000

  	
   

  
	
  September
  30, 2006

  	
   

  	
  $20,615,000

  	
   

  
	
  December
  31, 2007

  	
   

  	
  $21,027,000

  	
   

  
	
  March
  31, 2007

  	
   

  	
  $21,543,000

  	
   

  
	
  June
  30, 2007

  	
   

  	
  $22,161,000

  	
   

  
	
  September
  30, 2007

  	
   

  	
  $22,677,000

  	
   

  
	
  December
  31, 2007

  	
   

  	
  $23,130,000

  	
   

  
	
  March
  31, 2008

  	
   

  	
  $23,697,000

  	
   

  
	
  June
  30, 2008

  	
   

  	
  $24,378,000

  	
   

  
	
  September
  30, 2008

  	
   

  	
  $24,945,000

  	
   

  
	
  December
  31, 2008

  	
   

  	
  $25,444,000

  	
   

  
	
  March
  31, 2009

  	
   

  	
  $26,067,000

  	
   

  
	
  June
  30, 2009

  	
   

  	
  $26,816,000

  	
   

  
	
  September
  30, 2009

  	
   

  	
  $27,439,000

  	
   

  
	
  December
  31, 2009

  	
   

  	
  $27,988,000

  	
   

  
	
  March
  31, 2010

  	
   

  	
  $28,674,000

  	
   

  
	
  June
  30, 2010

  	
   

  	
  $29,497,000

  	
   

  






 


Section 11.6.          Maintenance
of Minimum Cash Amount.  The aggregate amount of Cash on hand (net of any overdrafts on
Deposit Accounts) of the Company and its Subsidiaries as of the close of
business on the last day of any fiscal quarter (commencing with the fiscal
quarter ending December 31, 2005) will not be less than $500,000.


Section 12.             Events
of Default.


Section 12.1.          Events
of Default; Remedies.  If any of the following events
(herein called “Events of Default”)
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or by operation of law
or otherwise):


(a)           the Company shall
default in the due and punctual payment or prepayment of all or any part of the
principal of, or prepayment charge (if any) on, any Note when and as the same
shall become due and payable, whether at stated maturity, by acceleration, by
notice of prepayment or otherwise;


(b)           the Company shall
default in the due and punctual payment or prepayment of any interest on any
Note when and as such interest shall become due and payable;


(c)           the Company shall
default in the performance or observance of any of the covenants, agreements or
conditions contained in Section 7(a), Section 7(b), Section 7(c), Section 7(d),
Section 7(h), Section 7(i), Section 9.2(a), Section 9.2(c), Section 9.6,
Section 9.7, Section 9.8, Section 10 and Section 11 of this Agreement;


 


70





















 


(d)           the Company or any
of its Subsidiaries shall default in the performance or observance of any of
the covenants, agreements or conditions contained in this Agreement or any of
the other Note Documents (other than those referred to in any subsection of
this Section 12.1 other than this subsection (d)), and such default shall
continue for a period of 30 days;


(e)           (i) the Company or
any of its Subsidiaries shall fail to pay any principal of, or interest on, or
any other amount payable in respect of Indebtedness of such Person that is
outstanding in a principal amount of at least $500,000 in the aggregate (but
excluding Indebtedness outstanding under the Notes) when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such
Indebtedness; or (ii) any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to permit the
acceleration of the maturity of such Indebtedness (whether or not such
acceleration occurs); or (iii) any such Indebtedness shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof;


(f)            the Company or any
of its Subsidiaries shall (i) voluntarily commence any proceeding or file any
petition seeking relief under the Bankruptcy Code, or any other federal, state
or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) below, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any of its
Subsidiaries, or for a substantial part of the property or assets of the
Company or any of its Subsidiaries, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) admit in writing its
inability to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;


(g)           an involuntary
proceeding shall be commenced or an involuntary petition shall be filed in a
court of competent jurisdiction seeking (i) relief in respect of the Company or
any of its Subsidiaries, or of a substantial part of the property or assets of
the Company or any of its Subsidiaries, under the Bankruptcy Code, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any of its Subsidiaries, or
for a substantial part of the  property
or assets of the Company or any of its Subsidiaries, or (iii) the winding-up or
liquidation of the Company or any of its Subsidiaries, and such proceeding or
petition shall continue undismissed for 60 days, or an order or decree
approving or ordering any of the foregoing shall be entered;


(h)           final judgment for
the payment of money shall be rendered by a court of competent jurisdiction
against the Company or any of its Subsidiaries, and the Company or such
Subsidiary, as the case may be, shall not discharge the same or provide for its
discharge in 


 


71





















 


accordance
with its terms, or procure a stay of execution thereof, within 30 days from the
date of entry thereof and within said period of 30 days, or such longer period
during which execution of such judgment shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal, and
such judgment together with all other such judgments shall exceed in the
aggregate $250,000;


(i)            any representation,
warranty or statement made by or on behalf of the Company or any of its
Subsidiaries or by or on behalf of any officer of the Company or any of its
Subsidiaries in this Agreement or any other Note Document, or in any financial
statement, certificate or other instrument or document now or hereafter
delivered pursuant to or in connection with any provision of this Agreement or
the other Note Documents, shall prove to be false or incorrect or breached in
any material respect on the date as of which made;


(j)            a Liquidity Event
shall occur;


(k)           (i) an ERISA Event
shall occur with respect to a Pension Plan or a Multiemployer Plan which shall
have resulted or could reasonably be expected to result in liability of the
Company or any ERISA Affiliate under Title IV of ERISA to such Pension Plan or Multiemployer
Plan or to the PBGC in an aggregate amount in excess of $500,000; (ii) the
Company or any ERISA Affiliate shall fail to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
Withdrawal Liabilities under a Multiemployer Plan, in an aggregate amount in
excess of $500,000; or (iii) the aggregate amount of Unfunded Pension
Liabilities among all Pension Plans at any time shall exceed $1,500,000;


(l)            any provision of
this Agreement or any other Note Document shall, for any reason, not be or
shall cease to be in full force and effect, or not be, or be asserted in
writing by the Company or any of its Subsidiaries not to be, valid, binding and
enforceable against any Person purported to be bound by it;


(m)          any of the Security
Documents shall not give or shall cease to give the Collateral Agent the Liens
and the rights, powers and privileges purported to be created thereby,
including a valid, enforceable and perfected first priority security interest
in, and Lien on, all of the Collateral subject thereto in favor of the
Collateral Agent, superior and prior to the rights of all third Persons
(subject to Permitted Liens);


(n)           as of the first
anniversary of the Closing Date, neither an Initial Public Offering shall have
occurred nor shall the Registration Statement have been declared effective by
the SEC; or


(o)           any Material Adverse Effect shall occur;


then (i) upon the occurrence of any Event of Default described in
subsection (f) or (g), the unpaid principal amount of all Notes, together with
all interest accrued thereon and all fees, costs, expenses, indemnities and
other amounts payable hereunder or under any of the other Note Documents
(including an amount equal to the prepayment charge (if any) that would have
been 


 


 


72


 

















 


payable if the Notes had then been voluntarily prepaid in full), shall
automatically become immediately due and payable, without presentment, demand,
notice, declaration, protest or other requirements of any kind, all of which
are hereby expressly waived, or (ii) upon the occurrence of and during the
continuance of any other Event of Default, the Majority Purchasers may, by
written notice to the Company, declare the entire unpaid principal amount of
the Notes to be immediately due and payable, together with all interest accrued
thereon and all fees, costs, expenses, indemnities and other amounts payable
hereunder or under any of the other Note Documents (including an amount equal
to the prepayment charge (if any) that would have been payable if the Notes had
then been voluntarily prepaid in full), in which event all such principal,
interest, premium and other amounts shall thereupon be immediately due and
payable, all without presentment, demand, notice, protest or other requirements
of any kind, all of which are hereby expressly waived.


 


Section 12.2.          Suits
for Enforcement; Remedies Against Collateral.  If any Event of Default shall have occurred and be
continuing, the Collateral Agent (upon the direction of the Majority
Purchasers) may proceed to protect and enforce the rights of the Purchasers on
their behalf, either by suit in equity or by action at law, or both, whether
for the specific performance of any covenant or agreement contained in this
Agreement or the other Note Documents or in aid of the exercise of any power
granted in this Agreement or the other Note Documents, and may proceed to
enforce the payment of all sums due upon the Notes or under this Agreement or
any of the other Note Documents, and such further amounts as shall be
sufficient to cover the costs and expenses of collection (including reasonable
counsel fees and disbursements), or to enforce any other legal or equitable
right of the Purchasers or the Collateral Agent.  In addition, the Collateral Agent shall have
all of the rights and remedies of a secured creditor under the applicable
provisions of the Uniform Commercial Code, and all rights and remedies provided
for in the Security Documents or at law or in equity or otherwise.  All amounts so collected or received
hereunder (after deduction of the costs and expenses of collection) shall be
applied to the payment in whole or in part of the Obligations in accordance
with the provisions of Section 3.4(b).


Section 12.3.          Remedies
Cumulative.  No remedy conferred upon the Purchasers or
the Collateral Agent in
this Agreement or in any of the other Note Documents is intended to be
exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.


Section 12.4.          Remedies
Not Waived.  No course of dealing between the Company and
the Purchasers or the
Collateral Agent, and no delay or failure in exercising any rights under this
Agreement or any of the other Note Documents, shall operate as a waiver of any
of the rights of the Purchasers or the Collateral Agent.


Section 13.             Registration,
Exchange, and Transfer of Notes. The Company will keep at
its principal executive
office a register, in which, subject to such reasonable regulations as it may
prescribe, but at its expense (other than transfer taxes, if any), the Company
will provide for the registration and transfer of Notes.  Whenever any Note shall be surrendered either
at the principal executive office of the Company, or at the place of payment
named in the Note, for transfer or 


 


 


73


 

















 


exchange, accompanied (if so required by the Company) by a written
instrument of transfer in form reasonably satisfactory to the Company duly
executed by the holder thereof or by such holder’s attorney duly authorized in
writing, the Company will execute and deliver in exchange therefor a new Note
(or Notes) in such denominations as may be requested by such holder, of like
tenor and in the same aggregate unpaid principal amount as the aggregate unpaid
principal amount of the Note so surrendered. 
Any Note issued in exchange for any other Note or upon transfer thereof
shall carry the rights to unpaid interest and interest to accrue which were
carried by the Note so exchanged or transferred, and neither gain nor loss of
interest shall result from any such transfer or exchange.  Any transfer tax or governmental charge
relating to such transaction shall be paid by the holder requesting the
exchange.  The Company and any of its
agents may treat the Person in whose name any Note is registered as the owner
of such Note for the purpose of receiving payment of the principal of, prepayment
charge (if any) and interest and other amounts on such Note and for all other
purposes whatsoever, whether or not such Note be overdue.


Section 14.             Lost,
Stolen, Damaged and Destroyed Notes.  Upon request of any Purchaser, the Company will issue and
deliver at its expense, in replacement of any Note lost, stolen, damaged or
destroyed, upon surrender thereof, if mutilated, a new Note in the same
aggregate unpaid principal amount, and otherwise of the same tenor, as the Note
so lost, stolen, damaged or destroyed, duly executed by the Company.  The Company may condition the replacement of
a Note reported by such Purchaser as lost, stolen, damaged or destroyed, upon
the receipt from such Purchaser of an indemnity reasonably satisfactory to the
Company.


Section 15.             Collateral
Agent.


Section 15.1.          Appointment
and Authorization.  Each Purchaser hereby irrevocably appoints
and authorizes the
Collateral Agent to enter into each of the Note Documents to which it is a
party (other than this Agreement) on its behalf and to take such actions as the
Collateral Agent on its behalf and to exercise such powers under the Note
Documents as are delegated to the Collateral Agent by the terms thereof,
together with all such powers as are reasonably incidental thereto.  Subject to the terms of Section 16.1(a)
and to the terms of the other Note Documents, the Collateral Agent is
authorized and empowered to amend, modify, or waive any provisions of this
Agreement or the other Note Documents on behalf of the Purchasers.  The provisions of this Section 15 are solely
for the benefit of the Collateral Agent and the Purchasers and neither the
Company nor any of its Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof. 
In performing its functions and duties under this Agreement, the
Collateral Agent shall act solely as agent of the Purchasers and does not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Company or any of its
Subsidiaries.  The Collateral Agent may
perform any of its duties hereunder, or under the Note Documents, by or through
its agents or employees.


Section 15.2.          The
Collateral Agent and Affiliates.  The Collateral Agent shall have the same
rights and powers under
the Note Documents as any other Purchaser and may exercise or refrain from
exercising the same as though it were not the Collateral Agent, and the
Collateral Agent and its Affiliates may lend money to, invest in and generally
engage in any kind of


 


74





















business
with the Company and its Subsidiaries or any Affiliate thereof as if it were
not the Collateral Agent hereunder.


Section 15.3.          Action
by the Collateral Agent.  The duties of the Collateral Agent shall be mechanical and
administrative in nature.  The Collateral
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Purchaser.  Nothing in
this Agreement or any of the Note Documents is intended to or shall be construed
to impose upon the Collateral Agent any obligations in respect of this
Agreement or any of the Note Documents except as expressly set forth herein or
therein.


Section 15.4.          Consultation
with Experts.  The Collateral Agent may
consult with legal counsel, independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.


Section 15.5.          Liability
of the Collateral Agent.  Neither the Collateral
Agent nor any of its directors, officers, agents or
employees shall be liable to any Purchaser for any action taken or not taken by
it in connection with the Note Documents, except that the Collateral Agent
shall be liable to the extent of its own gross negligence or willful misconduct
as determined by a final non-appealable judgment of a court of competent
jurisdiction.  Neither the Collateral
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify
(i) any statement, warranty or representation made in connection with any
Note Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements specified in any Note
Document; (iii) the satisfaction of any condition specified in any Note
Document, except receipt of items required to be delivered to the Collateral
Agent; (iv) the validity, effectiveness, sufficiency or genuineness of any
Note Document, any Lien purported to be created or perfected thereby or any
other instrument or writing furnished in connection therewith; (v) the
existence or non-existence of any Default or Event of Default; or (vi) the
financial condition of the Company or any of its Subsidiaries.  The Collateral Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile or
electronic transmission or similar writing) believed by it to be genuine or to
be signed by the proper party or parties. 
The Collateral Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith and if any such apportionment
or distribution is subsequently determined to have been made in error the sole
recourse of any Purchaser to whom payment was due but not made, shall be to
recover from other Purchasers any payment in excess of the amount to which they
are determined to be entitled (and such other Purchasers hereby agree to return
to such Purchaser any such erroneous payments received by them).


Section 15.6.          Indemnification.
 Each Purchaser shall, in
accordance with the aggregate outstanding principal amount of the
Notes held by it, indemnify the Collateral Agent (to the extent not reimbursed
by the Company) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Collateral Agent’s gross negligence or willful misconduct as
determined by a final non-appealable judgment of a court of competent
jurisdiction) that the Collateral Agent may suffer or incur in connection with
any action taken or omitted by the Collateral Agent (solely in its role as
Collateral Agent as 


 


75





















 


set
forth herein) under this Agreement or the other Note Documents.  If any indemnity furnished to the Collateral
Agent for any purpose shall, in the reasonable opinion of the Collateral Agent,
be insufficient or become materially impaired, the Collateral Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against even if so directed by Majority Purchasers until such additional
indemnity is furnished.  The obligations
of Purchasers under this Section 15.6 shall survive the payment in full of
the Obligations and the termination of this Agreement.


Section 15.7.          Right to
Request and Act on Instructions.  The Collateral Agent may at
any time request
instructions from the Purchasers with respect to any actions or approvals which
by the terms of this Agreement or of any of the Note Documents the Collateral
Agent is permitted or desires to take or to grant, and if such instructions are
promptly requested, the Collateral Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Note Documents until it shall have
received such instructions from the Majority Purchasers.  Without limiting the foregoing, no Purchaser
shall have any right of action whatsoever against the Collateral Agent as a
result of the Collateral Agent acting or refraining from acting under this
Agreement or any of the other Note Documents in accordance with the instructions
of the Majority Purchasers and, notwithstanding the instructions of the
Majority Purchasers, the Collateral Agent shall have no obligation to take any
action if it believes, in good faith, that such action exposes the Collateral
Agent to any liability for which it has not received satisfactory
indemnification in accordance with the provisions of Section 15.6.


Section 15.8.          Credit
Decision.  Each Purchaser acknowledges
that it has, independently and without reliance upon the
Collateral Agent or any other Purchaser, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Purchaser also acknowledges that it will, independently and without
reliance upon the Collateral Agent or any other Purchaser, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under the Note
Documents.


Section 15.9.          Collateral
Matters.  The Purchasers irrevocably
authorize the Collateral Agent, at its option and in its
discretion, to release any Lien granted to or held by the Collateral Agent
under any Security Document (i) upon the payment in full of all
Obligations; or (ii) constituting property sold or disposed of as part of
or in connection with any disposition permitted under any Note Document (it
being understood and agreed that the Collateral Agent may conclusively rely
without further inquiry on a certificate of a Responsible Officer as to the
sale or other disposition of property being made in full compliance with the
provisions of the Note Documents).  Upon
request by the Collateral Agent at any time, the Purchasers will confirm the
Collateral Agent’s authority to release particular types or items of Collateral
pursuant to this Section 15.9.


Section 15.10.        Agency
for Perfection.  The Collateral Agent and
each Purchaser hereby appoint each other Purchaser as agent
for the purpose of perfecting the Collateral Agent’s security interest in
assets which, in accordance with the Uniform Commercial Code in any applicable 


 


76





















 


jurisdiction,
can be perfected by possession or control. 
Should any Purchaser (other than the Collateral Agent) obtain possession
or control of any such assets, such Purchaser shall notify the Collateral Agent
thereof, and, promptly upon the Collateral Agent’s request therefor, shall
deliver such assets to the Collateral Agent or in accordance with the
Collateral Agent’s instructions or transfer control to the Collateral Agent in
accordance with the Collateral Agent’s instructions.  Each Purchaser agrees that it will not have
any right individually to enforce or seek to enforce any Security Document or
to realize upon any Collateral for the Obligations unless instructed to do so
by the Collateral Agent (or consented to by the Collateral Agent, as provided
in Section 16.8), it being understood and agreed that such rights and
remedies may be exercised only by the Collateral Agent.


Section 15.11.        Notice of
Default.  The Collateral Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Collateral Agent for
the account of Purchasers, unless the Collateral Agent shall have received
written notice from a Purchaser or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”.  The Collateral Agent will
notify each Purchaser of its receipt of any such notice.  The Collateral Agent shall take such action
with respect to such Default or Event of Default as may be requested by
Majority Purchasers in accordance with the terms hereof.  Unless and until the Collateral Agent has
received any such request, the Collateral Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interests
of the Purchasers.


Section 15.12.        Successor
Collateral Agent.  The Collateral Agent may at
any time give notice of its resignation
to the Purchasers and the Company.  TICC
shall resign as Collateral Agent in favor of Seaview if (a) TICC does not
exercise the Exchange Option on or before the earlier of (i) ten (10) Business
Days after the date on which TICC shall receive a license from the California
Department of Corporations pursuant to the California Finance Lenders Law or
(ii) May 3, 2006, and (b) at any time on or after such date, Seaview shall have
acquired one or more Notes pursuant to this Agreement and TICC shall not then
hold any Notes.  Upon receipt of any such
notice of resignation, except as set forth in the preceding sentence, the
Majority Purchasers shall have the right, in consultation with the Company, to
appoint a successor Collateral Agent.  If
no such successor shall have been so appointed by the Majority Purchasers and
shall have accepted such appointment within thirty (30) days after the retiring
Collateral Agent gives notice of its resignation, then the retiring Collateral
Agent may on behalf of the Purchasers appoint a successor Collateral Agent;
provided that if the Collateral Agent shall notify the Company and the
Purchasers that no Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice from the
Collateral Agent that no Person has accepted such appointment and, from and
following delivery of such notice,  (i)
the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder and under the other Note Documents and (ii) all payments,
communications and determinations provided to be made by, to or through the
Collateral Agent shall instead be made by or to each Purchaser directly, until
such time as the Majority Purchasers appoint a successor the Collateral Agent
as provided for above in this paragraph. 
Upon the acceptance of a successor’s appointment as the Collateral Agent
hereunder, such successor shall succeed to and become vested with all of the 


 


77





















 


rights,
powers, privileges and duties of the retiring (or retired) Collateral Agent,
and the retiring Collateral Agent shall be discharged from all of its duties
and obligations hereunder and under the other Note Documents (if not already
discharged therefrom as provided above in this paragraph).  After the retiring Collateral Agent’s
resignation hereunder and under the other Note Documents, the provisions of
this Section 15 shall continue in effect for the benefit of such retiring
Collateral Agent and its sub-agents in respect of any actions taken or omitted
to be taken by any of them while the retiring Collateral Agent was acting or
was continuing to act as the Collateral Agent.


Section 16.             Miscellaneous.


Section 16.1.          Amendment
and Waiver.


(a)           No provision of this
Agreement or any other Note Document may be amended, waived or otherwise
modified unless such amendment, waiver or other modification is in writing and
is signed by the Company and the Majority Purchasers (or the Collateral Agent
upon the direction of the Majority Purchasers); provided that no such amendment, waiver or other
modification shall, unless signed by all of the Purchasers directly affected
thereby, (i) reduce the principal of, or rate of interest on, any Note;
(ii) postpone or waive the date fixed for any payment (other than a
payment pursuant to Section 3.1) of principal of any Note, or of interest
on any Note; (iii) change the definition of the term “Majority Purchasers”
or the percentage of Purchasers which shall be required for the Purchasers to
take any action hereunder, which change shall be deemed to directly affect all
Purchasers; (iv) release all or substantially all of the Collateral
(except in connection with the payment in full of all of the Obligations),
which action shall be deemed to directly affect all Purchasers; (v) amend,
waive or otherwise modify this Section 16.1(a) or the definitions of the
terms used in this Section insofar as the definitions affect the substance of
this Section, which amendment, waiver or other modification shall be deemed to
directly affect all Purchasers; (vi) consent to the assignment, delegation or
other transfer by the Company or any of its Subsidiaries of any of their rights
and obligations under any Note Document, which consent shall be deemed to
directly affect all Purchasers; or (vii) permit the Company and its Subsidiaries
to incur additional Indebtedness not permitted to be incurred under Section
10.1 as in effect on the date hereof; provided, further, that no
such amendment, waiver or other modification shall affect the rights or duties
of the Collateral Agent unless signed by the Collateral Agent.


(b)           No failure or delay
by any Purchaser or the Collateral Agent in exercising any right, remedy, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and are not
exclusive of any rights, remedies, powers and privileges provided by law.


Section 16.2.          Expenses.


(a)           The Company agrees,
whether or not the transactions hereby contemplated shall be consummated, to
pay and save the Purchasers and the Collateral Agent harmless against any 


 


78





















 


and
all liability for the payment of all expenses arising in connection with this
Agreement and the other Note Documents, including all expenses incurred in
connection with (i) the reproduction of such agreements and instruments and all
stamp and other similar taxes (together in each case with interest and
penalties, if any) which may be payable in respect of the execution and
delivery of such agreements or instruments or the issuance, delivery or
acquisition by the Purchasers of any Note or other instrument pursuant to this
Agreement, (ii) all fees, taxes and other charges incurred in connection with
the filing or recording of any Security Documents and in connection with any
Lien, tax and judgment searches, (iii) all costs incurred in connection with
the issuance of the Mortgage Policies, if any, including appraisal, survey and
other title costs, (iv) the fees and disbursements of Nixon Peabody LLP and of
any special or local counsel (including Breslow & Walker, LLP) incurred in
connection with the performance of due diligence in respect of the Company and
its Subsidiaries, the preparation and negotiation of this Agreement and the
other Note Documents, and the consummation of the transactions hereby and
thereby contemplated, and (v) the expenses of the Purchasers and the Collateral
Agent incurred in connection with its investigation of the business, assets and
financial condition of the Company and its Subsidiaries, including the fees and
disbursements of any accountants or other experts retained by the Purchasers
and the Collateral Agent for such purposes.


(b)           The Company also
agrees to pay to the Purchasers and the Collateral Agent on demand all expenses
hereafter incurred by the Purchasers or the Collateral Agent (including
reasonable counsel fees and disbursements) from time to time in connection with
(i) the enforcement, attempted enforcement or preservation of any of the rights
or remedies of the Purchasers or the Collateral Agent under this Agreement or
any of the other Note Documents, (ii) any amendment or requested amendment of,
or waiver or consent or requested waiver or consent under or with respect to,
this Agreement or any of the other Note Documents, whether or not the same shall
become effective, (iii) attendance by the Observer at meetings of the boards of
directors (and committees thereof) of the Company and its Subsidiaries as
permitted by Section 8.2, and (iv) the negotiation and documentation of any
workout, restructuring or similar arrangement relating to the Company or its
Subsidiaries.


(c)           The Obligations of
the Company under this Section 16.2 shall survive the payment or prepayment in
full or transfer of any Note, the enforcement of any provision of this
Agreement or the other Note Documents, any such amendments, waivers or
consents, and any such workout, restructuring or similar arrangement.


Section 16.3.          Survival
of Representations and Warranties.  All representations and warranties contained herein or made in
writing by or on behalf of any party to this Agreement or otherwise in
connection herewith shall (i) survive the execution and delivery of this
Agreement and the delivery of the Notes to the Purchasers and shall continue in
effect as long as any of the Notes is outstanding and thereafter as provided in
Section 16.2  and Section 16.6, and (ii)
be deemed to be material and to have been relied upon by the Purchasers and the
Collateral Agent, regardless of any investigation made by the Purchasers or the
Collateral Agent or on their behalf.


 


79





















 


Section 16.4.          Successors
and Assigns; Assignment of Notes.


(a)           This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that neither the Company nor any of
its Subsidiaries may transfer or assign any of their respective rights or Obligations
hereunder or under the other Note Documents without the prior written consent
of the Majority Purchasers.


(b)           Any Purchaser may at
any time assign to one or more Eligible Assignees all or any portion of such
Purchaser’s Notes, together with all related rights and obligations of such
Purchaser hereunder.  Except as the
Collateral Agent may otherwise agree, the principal amount of the Notes so
assigned shall be in a minimum aggregate amount equal to $100,000 or, if less,
the aggregate unpaid principal amount of the Notes held by the assignor.  The Company and the Collateral Agent shall be
entitled to continue to deal solely and directly with such Purchaser in
connection with the interests so assigned to an Eligible Assignee until the
Collateral Agent shall have received and accepted an effective Assignment
Agreement executed, delivered and fully completed by the applicable parties
thereto.


(c)           From and after the
date on which the conditions described in Section 16.4(b) above have been met,
(i) such Eligible Assignee shall be deemed automatically to have become a
party hereto and, to the extent of the interests assigned to such Eligible
Assignee pursuant to such Assignment Agreement, shall have the rights and
obligations of a Purchaser hereunder and (ii) the assigning Purchaser, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, shall be released from its rights (other
than its indemnification rights) and obligations hereunder.  Upon the request of the Eligible Assignee
(and, as applicable, the assigning Purchaser) pursuant to an effective
Assignment Agreement, the Company shall execute and deliver to Collateral Agent
for delivery to the Eligible Assignee (and, as applicable, the assigning Purchaser)
Notes in the aggregate principal amount of the Eligible Assignee’s Notes (and,
as applicable, Notes in the principal amount of the Notes retained by the
assigning Purchaser).  Upon receipt by
the assigning Purchaser of such Note, the assigning Purchaser shall return to
the Company any prior Note held by it.


(d)           Notwithstanding the
foregoing provisions of this Section 16.4 or any other provision of this
Agreement, any Purchaser may at any time pledge, and grant or assign a security
interest in, all or any portion of the Notes held by it and its rights under
this Agreement and the other Note Documents to secure obligations of such
Purchaser, and in the event of any foreclosure of such pledge and security
interest, the secured party thereof may sell and assign such Notes, together
with such rights and interests of such Purchaser under this Agreement and the
other Note Documents, in a public or private sale and may exercise all other
rights of a secured party with respect thereto in accordance with the documentation
governing such pledge and security interest and applicable law; provided that no such pledge or assignment shall
release such Purchaser from any of its obligations hereunder or substitute any
such pledgee or assignee for such Purchaser as a party hereto.


Section 16.5.          Notices.  All notices hereunder shall be in writing and
shall be conclusively deemed to have been received and
shall be effective (a) on the day on which delivered if delivered personally or
transmitted by facsimile transmission, (b) one Business Day 


 


80





















 


after
the date on which the same is delivered to a nationally recognized overnight
courier service, (c) three Business Days after being sent by registered or
certified United States mail, return receipt requested, or (d) if sent by
e-mail as provided below, and shall be addressed:


(i)            if to the Collateral Agent, to:


Technology Investment
Capital Corp.


8 Sound Shore Drive, Suite
255


Greenwich, CT  06830


Attention:  Saul B. Rosenthal


Facsimile: (203) 983-5290


E-mail: srosenthal@ticc.com;


 


with a copy to:


 


Nixon Peabody LLP


437 Madison Avenue


New York, NY  10022


Attention:
Philip A. Haber


Facsimile: (866) 855-0026


E-mail: phaber@nixonpeabody.com;


 


(ii)           if
to any Purchaser, to it at the
address, facsimile number or e-mail address for such Purchaser set forth on Schedule I attached hereto or (as the case
may be) on the Schedule attached to the Assignment Agreement whereby such
Purchaser became a Purchaser hereunder;


(iii)          if
to the Company or any of its Subsidiaries, to:


GenuTec Business Solutions,
Inc.


6A Liberty Street, Suite 200


Aliso Viejo, CA  92656


Attention: Lee J. Danna,
President


Facsimile: (949) 268-3175


E-mail: ldanna@genutec.com;


 


with a copy to:


 


Gersten Savage, LLP


600 Lexington Avenue


New York, NY  10022


Attention: Stephen A. Weiss


Facsimile: (212) 980-5192


E-mail: sweiss@gskny.com;


 


 


81


 

















 


or
to such other address or addresses or telecopy number or numbers as any of such
Persons may most recently have designated in writing to the others by such
notice.  Notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day.


 


Section 16.6.          Indemnification.  In consideration of the execution and
delivery of this Agreement by the
Purchasers and the Collateral Agent, the Company hereby agrees to defend,
indemnify, exonerate and hold harmless each Purchaser, the Collateral Agent and
each of the officers, directors, stockholders, members, managers, partners,
Affiliates, trustees, employees and agents of each Purchaser and the Collateral
Agent (herein collectively called the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages, claims,
actions, suits, proceedings, judgments, costs and expenses, including legal
fees and other expenses incurred in the investigation, defense, appeal and
settlement of claims, actions, suits and proceedings (herein collectively
called the “Indemnified Liabilities”),
incurred by the Indemnitees or any of them arising out of or resulting from any
act or failure to act by the Company or any of its Subsidiaries or their
respective officers, directors, employees, agents, representatives or
Affiliates relating to:


(i)            this
Agreement, any of the other Note Documents, the issuance of the Notes or the
transactions contemplated hereby or thereby, or the performance by the Company
of its Obligations hereunder or thereunder, or


(ii)           any
Environmental Matter, any Environmental Law or the actual or alleged existence
or release of any Hazardous Material,


except
for any such Indemnified Liabilities which are finally judicially determined to
have resulted from the Indemnitee’s gross negligence or willful misconduct, and
if and to the extent that the foregoing undertaking may be unenforceable for
any reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.  The
Obligations of the Company under this Section 16.6 shall survive the payment or
prepayment in full or transfer of any Note and the enforcement of any provision
hereof or thereof.


 


Section 16.7.          Confidentiality.  (a) 
Each Purchaser and the Collateral Agent shall maintain in confidence in accordance
with its customary procedures for handling confidential information and not
disclose to any Person, all written information clearly marked “Confidential”
that the Company or any of its Subsidiaries, or any of their authorized
representatives, furnishes to such Purchaser or the Collateral Agent (as the
case may be) on a confidential basis (“Confidential Information”),
other than any such Confidential Information that becomes generally available
to the public other than as a result of a breach by any Purchaser or the Collateral
Agent of its obligations hereunder or that is or becomes available to such
Purchaser or the Collateral Agent from a source other than the Company or any
of its Subsidiaries, or any of 


 


82





















 


their
authorized representatives, and that is not, to the actual knowledge of the
recipient thereof, subject to obligations of confidentiality with respect
thereto; provided, however, that each of the Purchasers and the
Collateral Agent shall in any event have the right to deliver copies of any
such documents, and to disclose any such information, to:


(i)            its
directors, officers, trustees, partners, employees, agents and attorneys;


(ii)           its
Affiliates, accountants, investment advisers, other professional consultants and
rating agencies, and the directors, officers, trustees, partners, employees,
agents and attorneys of each of the foregoing;


(iii)          any
Person to which any Purchaser offers to sell or pledge, or sells or pledges,
any Note or any part thereof or interest or participation therein, and any
other Person which offers to provide or is providing financing to such
Purchaser; provided such Person agrees to keep such information
confidential on terms similar to those set forth in this Section 16.7;


(iv)          the
SEC and any other federal or state regulatory authority or examiner which
regulates or has jurisdiction over such Purchaser; and


(v)           any
other Person to which such delivery or disclosure may be necessary or
appropriate (A) in compliance with any applicable law, rule, regulation or
order, (B) in response to any subpoena or other legal process or informal
investigative demand, (C) in connection with any litigation to which the
Purchaser is a party, or (D) in connection with the enforcement of the rights
and remedies of the Purchaser under this Agreement and the other Note Documents
at any time when an Event of Default shall have occurred and be continuing
(with respect to clauses (A), (B) and (C) of this subparagraph (v), in each
case upon prior written notice to the Company to the extent reasonably
practicable and not prohibited by law or court order, so that the Company may,
at its sole cost and expense, contest such disclosure or seek confidential
treatment thereof).


(b)           Notwithstanding any other provision contained herein, each
Purchaser shall have the right to issue a press release or other public
statement, in form and substance as shall be determined by such Purchaser in
its sole discretion, with respect to the transactions contemplated by this
Agreement and the Note Documents.  Each
Purchaser shall also have the right to list the Company as a portfolio company
of such Purchaser on the web site or sites owned and maintained by such
Purchaser and in any other marketing materials as such Purchaser, in its sole
discretion, shall determine.


Section 16.8.          Setoff.
 During the continuance of
any Event of Default, each Purchaser is hereby authorized by the Company
at any time or from time to time, with reasonably prompt subsequent notice to
the Company (any prior or contemporaneous notice being hereby expressly waived)
to set off and to appropriate and to apply any and all (a) balances held
by such Purchaser at any of its offices for the account of the Company or any
of its Subsidiaries (regardless of whether such balances are then due to the
Company or its Subsidiaries), and (b) other property at any time held or
owing by such Purchaser to or for the credit or for the account of the Company 


 


83





















 


or
any of its Subsidiaries, against and on account of any of the Obligations;
except that no Purchaser shall exercise any such right without the prior
written consent of the Collateral Agent. 
Any Purchaser exercising a right to setoff shall purchase for cash (and
the other Purchasers shall sell) interests in each of such other Purchaser’s
Pro Rata Share of the Obligations as would be necessary to cause all of the
Purchasers to share the amount so set off with each other Purchaser in
accordance with their respective Pro Rata Share of the Obligations.  For such purposes, the “Pro
Rata Share” of any Purchaser is equal to the ratio which the
aggregate unpaid principal amount of the Notes at the time held by such
Purchaser bears to the aggregate unpaid principal amount of all Notes at the
time outstanding.  The Company agrees, to
the fullest extent permitted by law, that any Purchaser may exercise its right
to set off with respect to the Obligations as provided in this Section 16.8.


Section 16.9.          Usury
Limitations.  It
is the intention of the Company and the Purchasers to conform strictly to applicable
usury laws.  Accordingly, notwithstanding
anything to the contrary in this Agreement or the Notes, amounts constituting
interest under applicable law and contracted for, chargeable or receivable
hereunder or under the Notes shall under no circumstances, together with any
other interest, late charges or other amounts which may be interpreted to be
interest contracted for, chargeable or receivable hereunder or thereunder,
exceed the maximum amount of interest permitted by law, and in the event any
amounts were to exceed the maximum amount of interest permitted by law, such
excess amounts shall be deemed a mistake and shall either be reduced immediately
and automatically to the maximum amount permitted by law or, if required to
comply with applicable law, be canceled automatically and, if theretofore paid,
at the option of the Majority Purchasers, be refunded to the Company or
credited on the principal amount of the Notes then outstanding.


Section 16.10.        Punitive
Damages.   Each party to this Agreement agrees that it
shall not have a remedy
of punitive, special, exemplary, indirect or consequential damages against any
other party to this Agreement in connection with any claim or dispute arising
hereunder and hereby waives any right or claim to any such damages that such
party now has or which may arise in the future in connection with any such
claim or dispute, whether such claim or dispute is resolved by arbitration or
judicially.


Section 16.11.        Integration
and Severability.  This Agreement embodies the entire agreement
and understanding among
the Purchasers with regard to its subject matter, the Collateral Agent and the
Company, and supersedes all prior agreements and understandings relating to the
subject matter hereof.  In case any one
or more of the provisions contained in this Agreement or in any instrument contemplated
hereby for such date, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein, and any other application
thereof, shall not in any way be affected or impaired thereby.


Section 16.12.        Counterparts.  This Agreement may be executed in two or more
counterparts, each of which
shall be deemed an original but all of which shall together constitute one and
the same instrument.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other
electronic means shall be effective as delivery of a manually executed
counterpart of this Agreement.  Delivery
of manually executed counterparts of this 


 


84





















 


Agreement
shall immediately follow delivery by telecopy or other electronic means, but the failure to so deliver a manually executed counterpart
shall not affect the validity, enforceability, or binding effect hereof.


Section 16.13.        Contingent Payment. 


(a)           Subject to the
provisions of Section 16.13(f), if, as of the Maturity Date, the Total Rate of
Return (as defined below) with respect to any Purchaser, determined without
taking into account any payment or issuance of shares of Company Common Stock
made pursuant to the provisions of this Section 16.13(a), shall be less than
15.0% per annum, then on the Payment Date (as defined below) the Company shall
pay to such Purchaser, in addition to all other amounts payable under this
Agreement, the Notes and the other Note Documents, an amount (each a “Make-Whole Amount”) such that, if
such amount had been paid to such Purchaser on the Maturity Date and had been
taken into account in determining the Total Rate of Return as of such date,
would have resulted in a Total Rate of Return of 15.0%; provided that in
the event the Company elects to pay the Make-Whole Amount in the form of shares
of Company Common Stock, the aggregate number of such shares issued by the
Company to all Purchasers pursuant to this Section shall not in any event
exceed 1,167,000 (as adjusted to take account of any stock dividends, stock
splits or similar events affecting the Company Common Stock occurring after the
date hereof), and, if by reason of such limitation the aggregate number of such
shares to be distributed to the Purchasers shall be less than the aggregate
number that would have been so distributed in the absence of such limitation,
then such shares shall be distributed to the Purchasers pro rata according to
the respective Make-Whole Amounts that such Purchasers are entitled to receive
pursuant to this Section.  Each
Make-Whole Amount shall be paid in cash or, at the option of the Company, in
shares of Company Common Stock valued at the Market Price (as defined below)
thereof as of the Maturity Date.


(b)           For the purposes
hereof, the “Total Rate of Return” shall be equal to the internal rate
of return per annum realized or deemed realized by the Purchasers (taken
together and treated as a single investor) on their investment in the Company
represented by the Preferred Shares, the Warrants and the Notes issued by the
Company pursuant to this Agreement and the Stock Purchase Agreement and the
shares of Company Common Stock received by the Purchasers upon exercise of the
Warrants or otherwise pursuant to the provisions of this Agreement (the “Combined Investment”), and shall be
computed on the basis of the following:


(i)            except
as otherwise provided in Section 16.13(b)(ii), the computation of the Total
Rate of Return shall be made for the period from and including the Closing Date
(in the case of TICC or any successor thereto) or the date of Seaview’s initial
cash investment in the Preferred Shares or the Notes (in the case of Seaview or
any successor thereto) to and including the Maturity Date;


(ii)           the
following assumptions shall be made in computing the Total Rate of Return: (A)
in the event that on the Maturity Date any Purchaser shall hold any Warrants or
any shares of Company Common Stock issued upon the exercise of Warrants, the
computation shall be made based on the assumption that all such Warrants were exercised on the Maturity Date and all shares of
Company Common Stock received by the 


 


85





















 


Purchasers
upon such exercise and any other shares of Company Common Stock previously
received by the Purchasers upon the exercise of Warrants were sold by them on
the Maturity Date for a price per share in cash equal to the Market Price as of
such date (whether or not such Warrants are actually exercised or such shares
of Company Common Stock are actually sold on such date); and (B)
solely for purposes of computing the Total Rate of Return after giving effect
to any Make-Whole Amount payable pursuant to Section 16.13(a), any cash amount
paid pursuant thereto shall be deemed to have been paid on the Maturity Date,
and any shares of Company Common Stock issued pursuant thereto shall be deemed
to have been issued on the Maturity Date and to have been sold by the
Purchasers on the Maturity Date for a price per share in cash equal to the
Market Price as of such date; and


(iii)          the
computation shall take into account (A) all cash payments made by each
Purchaser in respect of its Combined Investment during the applicable period
referred to in paragraph (i) above, including, without limitation, the payment of the purchase price for the Preferred Shares issued on
the Closing Date (or, in the case of Seaview or any successor thereto, payment
of the purchase price for the Preferred Shares or Notes purchased by it on such
later date as such purchase is effected), payment of the exercise price of any
Warrants exercised or assumed to have been exercised in accordance with the
provisions of the foregoing paragraph (ii), and all out-of-pocket
costs and expenses paid by each Purchaser in connection with the Combined
Investment for which the Company is responsible but which have not been
reimbursed to such Purchaser; and (B) all dividends received by the respective
Purchasers in respect of the Preferred Shares, all payments of principal, interest and prepayment charges (if any)
received by the Purchasers in respect of the Notes or pursuant to the terms of
this Agreement during the period from and including the Closing
Date to and including the Maturity Date, and any payment received (or assumed to have been received pursuant
to the provisions of paragraph (ii) above) in respect of any sale of shares of
Company Common Stock made on or prior to the Maturity Date (or assumed to have
been made on the Maturity Date pursuant to paragraph (ii) above), but shall
exclude interest at the Post-Default Rate (to the extent such interest exceeds
in amount the interest that would have been payable in the absence of an Event
of Default) and any fees or other amounts paid in connection with the waiver of
any Event of Default or in connection with any amendment, workout or
restructuring of the Note Documents or the Indebtedness incurred pursuant
thereto.


(c)           As used herein, the term “Market
Price” shall mean, as of any date of determination, with respect
to the Company Common Stock, (A) if the Company Common Stock is listed or
admitted to trading on any national securities exchange, the average of the
last reported sale prices, regular way, per share of Company Common Stock for
each of the 20 consecutive trading days preceding such day on the principal
national securities exchange on which the shares of Company Common Stock is listed or admitted to
trading (without taking into account any extended or after-hours
trading session), or (B) if the Company Common
Stock is not listed or admitted to trading on any
national securities exchange but is listed on Nasdaq or quoted in the OTC Bulletin
Board, the average of the last reported sale prices (or, if last-sale price
quotations are not available, the average of the last available bid and asked
prices) per share 


 


86





















 


of
Company Common Stock for each of the days in such 20 trading day
period as reported on Nasdaq or the OTC Bulletin Board (without
taking into account any extended or after-hours trading session), or (C) if the Company Common Stock is traded in the
over-the-counter market but not quoted on the OTC Bulletin Board, the
average of the last available bid and asked prices per share of
the Company Common Stock for each of the days in such 20 trading day period as quoted in the Pink Sheets Electronic
Quotation Service or, if not so quoted, as furnished by any member of the NASD
selected by the Company, or (D) if the Company Common Stock is not publicly
traded, the Market Price for such day shall be the fair market value per share
thereof as determined jointly by the Company and the Collateral
Agent.


(d)           Within 30 days
after the Maturity Date, the Collateral Agent shall give written notice to the
Company and each Purchaser (the “Make-Whole Notice”)
with respect to the amount of the Make-Whole Amount (if any) to be paid to each
Purchaser, which notice shall contain a calculation thereof in reasonable
detail, including the Market Price per share of the Company Common Stock
determined by the Collateral Agent for such purpose.  If the Company disagrees with the amount of
the Market Price specified in the Make-Whole Notice or disagrees for any other
reason with the calculation of the Make-Whole Amount therein stated, it shall
so notify the Collateral Agent in writing within five (5) Business Days after
receipt of the Make-Whole Notice, stating the bases for its objection thereto
(the “Objection Notice”).  If a Notice of Objection is not received by
the Collateral Agent within period of five (5) Business Days, the Make-Whole
Amount as determined by the Collateral Agent in the Make-Whole Notice shall be
final and binding for all purposes of this Section 16.13.  If a Notice of Objection is received by the
Collateral Agent on a timely basis and the parties are unable to reach
agreement with respect to the matters set forth therein within a period of 15 days
after such receipt, the Make-Whole Amount (including the relevant Market Price)
shall be determined in good faith by an independent investment banking firm
selected jointly by the Company and the Collateral Agent or, if that selection
cannot be made within 15 days, by an independent investment banking firm
selected by the American Arbitration Association in accordance with its
rules.  The fees and expenses of such independent investment banking firm shall
be borne equally by the Company and the Collateral Agent.  For the purposes hereof, the
determination of the “fair market value” of any shares of Company Common Stock
shall be based upon the market value of the Company determined on a going
concern basis, assuming that all of the outstanding shares of Company Common
Stock are being sold as between a willing buyer and a willing seller in an arm’s
length transaction for cash payable in full on completion, and taking into
account all prior or preferential rights and conversion rights of holders of
Company Preferred Stock at the time outstanding and any shares of any class
which may be issuable under any then outstanding options, warrants or other
rights to subscribe for, or securities convertible into or exchangeable for,
shares of Company Common Stock, and taking into account all other relevant
factors determinative of value, provided that no discount shall be
imposed by reason of such shares of Company Common Stock constituting a
minority ownership interest or by reason of the illiquidity of such shares or any
contractual or other restrictions on the sale or transfer thereof.  The determination of such investment banking
firm with respect to the matters submitted to it hereunder shall be final and
binding on all parties hereto.


(e)           The Company
shall pay the applicable Make-Whole Amount (if any) to each Purchaser within
ten (10) Business Days after receipt of the Make-Whole Notice, or, if a timely 


 


87





















 


Notice
of Objection shall be received by the Collateral Agent as provided in paragraph
(d) above, within ten (10) Business Days after all disputes with respect to the
matters set forth therein shall be finally resolved in accordance with the
provisions hereof.


(f)            Notwithstanding
the foregoing provisions of this Section 16.13, no Make-Whole Amount shall be
payable to any Purchaser if (i) the Company completes a Qualified IPO at any
time which is more than 545 days prior to the Maturity Date, (ii) during any
period of 180 consecutive days commencing on or after the first anniversary of
the effective date of such Qualified IPO and ending prior to the Maturity Date,
the arithmetic mean of the VWAPs for each of the trading days in such period
shall be $6.00 or more (as adjusted to take account of any stock dividends, stock
splits or similar events affecting the Company Common Stock occurring after the
date hereof), and (iii) at all times during such period of 180 consecutive
days, the Company Common Stock shall be listed on a United States national
securities exchange or on the Nasdaq National Market.


Section 16.14.      Governing
Law.  THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


Section 16.15.      Submission
to Jurisdiction; Waiver of Service and Venue.


(a)           THE COMPANY CONSENTS
AND AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND WAIVES ANY OBJECTION
BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED
THEREIN.


(b)           THE COMPANY HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE BY HAND DELIVERY OR BY REGISTERED OR
CERTIFIED UNITED STATES MAIL TO THE COMPANY AT ITS ADDRESS SET FORTH IN SECTION
16.5.


(c)           NOTHING IN THIS SECTION
16.15 SHALL AFFECT THE RIGHT OF THE PURCHASERS OR THE COLLATERAL AGENT TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE
PURCHASERS OR THE COLLATERAL AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST
THE COMPANY OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.


Section 16.16.      Waiver of
Right to Trial by Jury.  EACH OF THE COMPANY, THE PURCHASERS AND THE
COLLATERAL AGENT HEREBY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR 


 


88





















 


INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM IN RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE.  THE COMPANY, THE PURCHASERS
AND THE COLLATERAL AGENT HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 [REMAINDER OF PAGE
INTENTIONALLY BLANK.  SIGNATURES FOLLOW.]


 


 


 


-89-


 

















 


                IN WITNESS WHEREOF, the
Company, the Purchasers and the Collateral Agent have executed this Agreement by their duly
authorized officers as of the date first written above.


 


	
   

  	
  GENUTEC
  BUSINESS SOLUTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lee Danna

  
	
   

  	
  Name: Lee J. Danna

  
	
   

  	
  Title: President/CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TECHNOLOGY INVESTMENT CAPITAL CORP., as Purchaser and Collateral
  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Saul B. Rosenthal

  
	
   

  	
  Name: Saul B. Rosenthal

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEAVIEW
  MEZZANINE FUND LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Montoya

  
	
   

  	
  Name: David S. Montoya

  
	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  



 


 

















 


SCHEDULE
I


 


SCHEDULE
OF PURCHASERS


 


 


	
  Name and Address of Purchaser

  	
   

  	
  Principal Amount of Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Technology
  Investment Capital Corp.

  	
   

  	
  $15,000,000

  	
   

  
	
  8
  Sound Shore Drive, Suite 255

  	
   

  	
   

  	
   

  
	
  Greenwich,
  CT 06830

  	
   

  	
   

  	
   

  
	
  Attention:
  Saul B. Rosenthal

  	
   

  	
   

  	
   

  
	
  Facsimile:
  (203) 983-5290

  	
   

  	
   

  	
   

  
	
  E-mail:
  srosenthal@ticc.com

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Seaview
  Mezzanine Fund LP

  	
   

  	
  $5,000,000

  	
   

  
	
  30
  Kennedy Plaza, Suite 400

  	
   

  	
   

  	
   

  
	
  Providence,
  RI 02903

  	
   

  	
   

  	
   

  
	
  Attention:
  David S. Montoya

  	
   

  	
   

  	
   

  
	
  Facsimile:
  (401) 421-3533

  	
   

  	
   

  	
   

  
	
  E-mail:
  david@seaviewcapital.com

  	
   

  	
   

  	
   

  



 


 

















Exhibit A to Note and Warrant
Purchase Agreement


(Form of Note)


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAW, AND MAY NOT BE SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR AN EXEMPTION FROM
REGISTRATION, THEREUNDER.


 


GENUTEC
BUSINESS SOLUTIONS, INC.


 


Senior
Secured Note Due September 16, 2010


 


 




	
  No.
  R-

  	
   

  	
  New
  York, New York

  
	
  $

  	
   

  	
  ,
  20           

  






 


 


                GENUTEC BUSINESS SOLUTIONS,
INC., a Montana corporation (the “Company”),
for value received, hereby promises to pay to:


 


[NAME
OF HOLDER]


 


or
registered assigns


on
the 16th day of September, 2010


the
principal amount of


 


                                  
DOLLARS ($                            )


 


and
to pay interest from the date hereof on the principal amount from time to time
remaining unpaid hereon from the date hereof at a rate per annum equal, during
any Interest Rate Period, to the Applicable Interest Rate for such Interest
Rate Period, payable in cash quarterly in arrears on the last Business Day of
February, May, August and November in each year (commencing with the first such
date occurring after the date of issuance of this Note).  Interest accrued on the principal amount of this
Note shall also be due and payable upon each prepayment of any or all of the
principal amount hereof (with respect to the principal amount so prepaid), and
at maturity (whether at stated maturity, or by acceleration or otherwise).  Notwithstanding the foregoing, the Company
agrees that, upon the occurrence and during the continuance of an Event of
Default, this Note shall bear interest at a rate per annum equal to the
Post-Default Rate on the unpaid principal amount hereof and, to the extent
permitted by applicable law, on any overdue interest, until the same shall be
paid, such interest to be payable in cash on demand.  Interest on this Note shall be calculated on
the basis of a year of 360 days, in each case for the actual number of days
occurring in the period for which such interest is payable.  Payments of principal, prepayment charges (if
any) hereof and interest hereon and all other amounts payable hereunder or
under the Purchase Agreement referred to below shall be made in Dollars in
immediately available funds, in accordance with the provisions of Section
3.4(a) of the Purchase Agreement described below, without deduction, set-off or
counterclaim, not later than 2:00 p.m. (New York time) on the date 


 


 

















 


on
which such payment shall be due, and any payment made after such time on such
due date shall be deemed to have been made on the next succeeding Business Day.


 


                This Note is one of the Senior
Secured Notes Due 2010 of the Company in the aggregate principal amount of
$20,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of September 16, 2005, among the Company,
Technology Investment Capital Corp., a Maryland corporation, as Collateral
Agent, and the Purchasers named in Schedule I thereto (as from time to time
amended, modified or supplemented in accordance with its terms, the “Purchase Agreement”), and this Note
and the holder hereof are entitled equally and ratably with the holders of all
other Notes outstanding under the Purchase Agreement to all the benefits
provided for thereby or referred to therein, to which Purchase Agreement
reference is hereby made for a statement thereof.  Capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the Purchase
Agreement.


 


                The Notes are secured by, and
are entitled equally and ratably to the benefits of, the Subsidiary Guarantee
and the Security Documents, all in the manner and to the extent more fully
provided therein.


 


                This Note and the other Notes
outstanding under the Purchase Agreement may be declared or otherwise become
due prior to their expressed maturity dates, and certain prepayment charges are
required to be paid thereon, all in the events, on the terms and in the manner
and amounts provided in the Purchase Agreement.


 


                The Notes are not subject to
prepayment or redemption at the option of the Company prior to their expressed
maturity dates, except on the terms and conditions and in the amounts set forth
in the Purchase Agreement.


 


                This Note is registered on the
books of the Company and is transferable only by surrender thereof at the
principal executive office of the Company accompanied (if required by the
Company) by a written instrument of transfer duly executed by the registered
holder of this Note or its attorney duly authorized in writing.  Payment of or on account of principal,
prepayment charge, if any, and interest on this Note shall be made only to or
upon the order in writing of the registered holder.


 


                THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


	
   

  	
  GENUTEC
  BUSINESS SOLUTIONS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


A-2