Exhibit 10.10


 


Execution Copy


 


AMENDEMENT NO. 2  NOTE PURCHASE AGREEMENT


 


AMENDEMENT NO. 2, dated as of July 21,
2006 (this “Amendment”), to the Note Purchase Agreement dates as of September 16,
2005, as amended by Amendment No. 1 thereto dated as of October 24,
2005 (the “Note Purchase Agreement”), by and among GenuTec Business
Solutions, Inc., a Montana corporation (the “Company”), Technology
Investment Capital Corp., a Maryland corporation (“TICC”), and Seaview
Mezzanine Fund LP, a Delaware limited partnership (“Seaview”; TICC and
Seaview, together with their respective successors, assigns and transferees,
are sometimes referred to herein collectively as the “Purchasers”).
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Note Purchase Agreement.


 


R
E  C  I  T  A  L  S


 


A.                                   Pursuant to the Note
Purchase Agreement, the Company has issued to the Purchasers, and the
Purchasers presently hold, Senior Secured Notes Due 2010 of the Company in the
aggregate principal amount of $20,000,000.


 


B.                                     Under the
provisions of Section 9.10 of the Note Purchase Agreement the Company was
required to file with the SEC, on or prior to December 15, 2005, 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, a “Registration
Statement”).


 


C.                                     The Company has
requested, and the Majority Purchasers have agreed, subject to certain
conditions as hereinafter set forth, to extend the date by which the Company is
required to file a Registration Statement to August 15, 2006, to amend
certain of the financial covenants and other provisions set forth in the Note
Purchase Agreement, and to waive any Events of Default that have existed or now
exist by reason of the failure of the Company to file a Registration Statement
prior to the date hereof or to comply as of June 30, 2006 and for the
period then ended with the financial covenants hereby amended.


 


NOW, THEREFORE, in consideration of the terms
and conditions contained herein and of other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:


 


1.                                       Amendment to Definition
of “Liquidity Event”. The definition of the term “Liquidity Event”
appearing in Section 1 of the Note Purchase Agreement is hereby amended to
read in full as follows:


 


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


 


2.                                       Amendment to Section 3.1(b) of
the Note Purchase Agreement. Section 3.1(b) of the Note Purchase
Agreement is hereby amended by deleting paragraph (i) thereof and
inserting in lieu thereof the following new paragraph (i):


 

















 


“(i)                               any
Initial Public Offering or other public or private offering, issuance and sale
of Equity Interest of the Company, other than Net Cash Proceeds received in
connection with (A) a Qualified Equity Financing completed on or prior to November 15,
2006 (provided that at least $5,000,000 of the Net Cash Proceeds of any
such Qualified Equity Offering shall be paid to the Purchasers as herinafter
provided in this Section 3.1(b), and the remainder thereof may be
retained by the Company), (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),”


 


3.                                       Amendment to Section 9.10
of the Note Purchase Agreement. The first sentence of Section 9.10 of
the Note Purchase Agreement is hereby amended to read, in full, as follows:


 


“On or prior
to August 15, 2006, 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 to time amended, the “Registration Statement”).”


 


4.                                       Amendment to Section 11.2
of the Note Purchase Agreement. Section 11.2 of the Note Purchase
Agreement is hereby amended by deleting the ratio “2.50 to 1.00” set forth
opposite the date “June 30, 2006” contained in the table appearing in that
Section and inserting in lieu thereof the ration “2.25 to 1.00.”


 


5.                                       Amendment to Section 11.3
of the Note Purchase Agreement. Section 11.3 of the Note Purchase
Agreement is hereby amended by deleting the ration “3.00 to 1.00” set forth
opposite the date “June 30, 2006” contained in the table appearing in that
Section and inserting in lieu thereof the ration “3.90 to 1.00.”


 


6.                                       Amendment to Section 11.4
of the Note Purchase Agreement. Section 11.4 of the Note Purchase
Agreement is hereby amended by deleting the amount “$7,006,000” set forth
opposite the date “June 30, 2006” contained in the table appearing in that
Section and inserting in lieu thereof the amount “$5,150,000.”


 


7.                                       Amendment to Section 11.5
of the Note Purchase Agreement. Section 11.5 of the Note Purchase
Agreement is hereby amended by deleting the amount “$20,615,000” set forth
opposite the date “June 30, 2006” contained in the table appearing in that
Section and inserting in lieu thereof the amount “$19,600,000.”


 


8.                                       Amendment to Section 12.1(n)
of the Note Purchase Agreement. Subsection (n) of Section 12.1 of
the Note Purchase Agreement is hereby amended to read in full as follows:


 


“(n) as of the
first anniversary of the Closing Date, no Registration Statement shall have
been declared effective by the SEC; or”


 


9.                                       Amendment to Section 16.13(a) of
the Note Purchase Agreement. Section 16.13(a) of the Note
Purchase Agreement is hereby amended by deleting the words “the Payment


 


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Date (as defined below)” appearing herein and inserting in lieu thereof
the words “the date for payment specified in Section 16.13(e) below”.


 


10.                                 Amendment to Section 16.13(b)(iii) of
the Note Purchase Agreement. Paragraph (iii) of Section 16.13(b) of
the Note Purchase Agreement is hereby amended by adding the following at the
end thereof:


 


“For avoidance of doubt, it is understood and
agreed that, in calculating the Total Rate of Return, the internal rate of
return per annum on a Purchaser’s investment hereunder with respect to any
period shall be calculated only on the amount of such Purchaser’s unreturned
investment in Preferred Shares or Notes outstanding during such period, which
investment shall be deemed to be reduced from and after the date of any payment
or prepayment of the Principal amount of such Purchaser’s Notes by the
principal amount then so paid or prepaid.”


 


11.                                 Waiver of Existing
Default. In consideration of the agreement and amendments herein set forth,
the Purchasers hereby irrevocably waive any Events of Default no existing or
which have heretofore existed by reason of a breach by the Company of the
provisions of Section 9.10 of the Purchase Agreement (as in effect prior
to giving effect to this Amendment), or by reason of a breach by the Company of
the provisions of any of Section 11.2, 11.3, 11.4 or 11.5 of the Note
Purchase Agreement (as in effect prior to giving effect to this Amendment) with
respect to June 30, 2006 and for the period then ended.


 


12.                                 Effectiveness of
Amendment; Payment of Fees and Expenses. This Amendment shall become and be
effective upon (i) its execution and delivery by the Company and one or
more Purchasers constituting the Majority Purchasers, and (ii) payment by
the Company on the date hereof of a fee in the aggregate amount of $125,000,
which fee shall be paid to the Purchaser or Purchasers which shall execute and
deliver this Amendment not later than the date hereof, and, if more than one
Purchaser shall execute and deliver this Amendment not later than such date, to
such Purchasers pro rata in accordance with the respective principal amounts of
the Notes held by them. The Company also agrees to pay all costs and expenses
incurred by the Purchasers in connection with the negotiation, preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonably fees and disbursements of Nixon Peabody LLP, special counsel to
TICC, and of Breslow & Walker, LLP, special counsel to Seaview, incurred
in connection herewith.


 


13.                                 Effect of Amendment.
It is hereby agreed that, except as specifically provided herein, this
Amendment does not in any way affect or impair the terms, conditions and other
provisions of the Note Purchase Agreement and the other Note Documents shall
remain in full force and effect except to the extent specifically amended,
modified or waived pursuant to the provisions of this Amendment.


 


14.                                 Counterparts.
This Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page of this Amendment by telecopy or other electronic means
shall be effective as delivery of a


 


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Manually executed counterpart of this Amendment. Delivery of
manually executed counterparts of this Amendment 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.


 


15.                                 Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AN CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.


 


[Signature
on next page]


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Amendment as of the day and year first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  GENUTEC BUSINESS SOLUTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Farzed Hoorizatich

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Farzed Hoorizatich

  
	
   

  	
   

  	
  Title:

  	
  C.F.O.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASERS:

  
	
   

  	
   

  
	
   

  	
  TECHNOLOGY INVESTMENT CAPITAL

  CORP., as Purchaser and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Saul B. Rosenthal

  	
   

  
	
   

  	
   

  	
  Name: Saul B. Rosenthal

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEAVIEW MEZZANINE FUND LP, as Purchaser

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Seaview GP, LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name: David Montoya

  
	
   

  	
   

  	
   

  	
  Title: Member

  
							



 


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