**Exhibit10.2**

 

**ASSETPURCHASE AGREEMENT**

 

This ASSETPURCHASE AGREEMENT, dated as of                   ,2005 (this “Agreement”), from Dyntek, Inc., a Delaware corporation, andDyntek Services, Inc., a Delaware corporation (collectively, the “Sellers”),to New England Technology Finance, LLC, a Delaware limited liability company,as purchaser (“Purchaser”).  Capitalizedterms shall have the meanings set forth in Section 9 hereto.

 

### 1.             Agreement.

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#### (a)           Purchase on Initial Purchase Date.  For good and valuable considerationconsisting of the Purchase Price, the receipt and sufficiency of which arehereby acknowledged, each of the Sellers, by these presents, does irrevocablyagree to GRANT, BARGAIN, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER and DELIVERunto Purchaser, and unto Purchaser’s successors and assigns (without recourse,except as set forth below) forever, as of the date hereof (the “InitialPurchase Date”), all right, title and interest in and to the Purchased Assets,and Purchaser agrees to purchase and acquire all such Purchased Assets on thedate hereof, subject to the conditions precedent set forth in Section 3(a)below.  Each Purchased Account shall havea unique sequence number mutually agreed to by Seller and Purchaser as setforth in the Lockbox Agreement.

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#### (b)           Purchase on any Date Subsequent tothe Initial Purchase Date.  AnySeller may, from time to time after the Initial Purchase Date, offer to sell toPurchaser additional Purchased Assets by providing Purchaser a duly executedPurchase Supplement, and Purchaser may, from time to time, at its solediscretion, agree to purchase such additional Purchased Assets subject to theconditions precedent set forth in Section 3(b) below.

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### 2.             Effectiveness; True Sale; Disclaimer of Liability.  The Sellers and Purchaser agree that the saleand assignment of each Purchased Asset pursuant hereto shall be effectedimmediately and automatically without any further act or acknowledgement on thepart of any Seller, Purchaser or any other Person, but subject to Section 3below.  The Sellers and Purchaser furtheragree that the sale and assignment of the Purchased Assets pursuant hereto is asale and assignment of the Purchased Assets for valuable consideration andshall in no event be construed as a sale and assignment of the Purchased Assetsfor security.  Purchaser shall have noobligation or liability with respect to any contracts or underlying obligationsrelating to the Purchased Assets, and Purchaser shall have no obligation orliability to any obligor thereon or customer or other client of any Seller(including any obligations to perform any of the obligations of any Sellerunder or in respect of contracts or other underlying obligations relating tothe Purchased Assets).  The assumption ofany such obligation or liability by Purchaser is expressly disclaimed.

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### 3.             Conditions Precedent.

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#### (a)           The effectiveness of this Agreementand the obligation of Purchaser to purchase the Purchased Assets, as of thedate hereof, is subject to the satisfaction of all of the conditions set forthbelow:

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##### (1)           Purchasershall have received, in form and substance satisfactory to Purchaser, the dulyexecuted Transaction Documents and all other documents, instruments,information, agreements, notes, guarantees, certificates, orders, authorizations,financing statements, mortgages, and other documents which Purchaser mayreasonably request.

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##### (2)           Purchasershall have received the results of lien searches for each Seller in alljurisdictions as Purchaser shall reasonably request.

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##### (3)           Exceptas set forth in the Schedule of Exceptions, there shall not be pending or, to thebest knowledge of the Sellers, threatened, any litigation, action, charge,claim, demand, suit, proceeding, petition, governmental investigation, orarbitration by, against, or affecting any Seller or any of its subsidiaries orany property of Seller or any of its subsidiaries that has not been disclosedby the Sellers in writing, and there shall have occurred no development in anysuch action, charge, claim, demand, suit, proceeding, petition, governmentalinvestigation, or arbitration that, in Purchaser’s opinion, would reasonably beexpected to have a Material Adverse Effect.

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##### (4)           TheSellers shall have received all requisite governmental and third party approvalsand consents, all satisfactory in form and substance to Purchaser.

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##### (5)           TheSellers shall have received a release of security interest or waiver andconsent from Textron Financial Corporation, Laurus Master Fund, Ltd. and IngramMicro, Inc., each in form and substance reasonably satisfactory to Purchaser.

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#### (b)           The obligation, if Purchaser elects,in its sole discretion, to purchase additional Purchased Assets on any dateafter the Initial Purchase Date, shall, in each case, be subject to thesatisfaction of all of the conditions set forth below:

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##### (1)           Purchasershall have received a duly authenticated Purchase Supplement.

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##### (2)           Therepresentations and warranties contained herein and in the other TransactionDocuments shall be true, correct and complete in all material respects on andas of the applicable Purchase Date (except to the extent such representationsand warranties specifically relate to an earlier date, in which case suchrepresentations and warranties shall have been true, correct and complete inall material respects on and as of such earlier date).

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##### (3)           EachSeller shall have performed in all material respects all agreements required ofsuch Seller under this Agreement and the other Transaction Documents.

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##### (4)           Exceptas set forth in the Schedule of Exceptions, there shall not be pending or, to thebest knowledge of the Sellers, threatened, any litigation, action, charge,claim, demand, suit, proceeding, petition, governmental investigation, orarbitration by, against, or affecting any Seller or any of its subsidiaries orany property of Seller or any of its subsidiaries that has not been disclosedby the Sellers in writing, and there shall have occurred no development in anysuch action, charge, claim, demand, suit, proceeding, petition, governmentalinvestigation, or arbitration that, in Purchaser’s commercially reasonablejudgment, would reasonably be expected to have a Material Adverse Effect.

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##### (5)           TheSellers shall have received all requisite governmental and third party approvalsand consents, all reasonably satisfactory in form and substance to Purchaser.

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### 4.             Representations, Warranties and Covenants of the Sellers.  Except as set forth in the Schedule ofExceptions, each Seller hereby represents, warrants and covenants to Purchaseras set forth below:

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#### (a)           Corporate Existence and Power.  Each Seller is a corporation duly organized,validly existing and in good standing under the laws of the state of its organizationand has all organizational power and all material governmental licenses,authorizations, consents and approvals required to carry on its business ineach jurisdiction in which its business is now conducted and each Seller isduly qualified to do business in, and is in good standing in, every otherjurisdiction in which the nature of its business requires it to be soqualified, except where the failure to have such items or to be so qualified orin good standing would not have a Material Adverse Effect.

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#### (b)           Authorization and Contravention.  The execution, delivery and performance by eachSeller of this Agreement and the other Transaction Documents to which it is aparty is within its organizational powers, have been duly authorized by allnecessary organizational action, require no action by or in respect of, orfiling with, any governmental entity or official thereof (except for UCCfinancing statements), and do not contravene, or constitute a default under,any provision of applicable law, rule or regulation or of the certificate ofincorporation of such Seller or of any agreement, judgment, injunction, order,writ, decree or other instrument binding upon Seller or result in the creationor imposition of any adverse lien or encumbrance on the assets of such Seller.

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#### (c)           Legal Proceedings.  There are no judgments outstanding, against,or affecting any of the property of any Seller nor is there any action, charge,claim, demand, suit, proceeding, petition, governmental investigation, orarbitration now pending or, to the best of any Seller’s knowledge after dueinquiry, threatened against or affecting any Seller or any of its propertywhich could reasonably be expected to result in a Material Adverse Effect.  No Seller has received any opinion ormemorandum or legal advice from legal counsel to the effect that 

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#### any Seller is exposed to any liability or disadvantagewhich could reasonably be expected to result in a Material Adverse Effect.  No Seller is in violation of any materialorder of any court, arbitrator or governmental entity.

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#### (d)           Enforceability.  Each of this Agreement and the otherTransaction Documents has been duly executed and delivered and constitutes thelegal, valid and binding obligation of each Seller, enforceable against it inaccordance with its terms, subject to applicable bankruptcy, insolvency,moratorium or other similar laws affecting the rights of creditors generally.

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#### (e)           Purchased Account.  At the time of its sale and assignment toPurchaser, each Purchased Account is a valid, bona fide Account, representingan undisputed indebtedness incurred by the named customer for goods actuallysold and delivered or for services completely rendered and such PurchasedAccount: (i) arises out of the sale of goods or vendor-provided services in theordinary course of business; (ii) does not arise out of a sale made to anAffiliate of Seller for operational use by that Affiliate and not forsubsequent sale to a customer of such Affiliate; (iii) has no set-off, offset,counterclaim, or defense, genuine or otherwise, to the payment or collection ofsuch Purchased Account; (iv) is payable in U.S. dollars and the equipmentrelated thereto is located inside the continental United States, Canada or on aforeign military base (excluding the province of New Foundland, the NorthwestTerritories and the Territory of Nunavit); (v) does not represent a guaranteedsale, a bill and hold transaction, a sale-and-return, a sale on approval, acash on delivery sale or a consignment sale or is not made pursuant to anyother written agreement providing for repurchase or return; (vi) complies withall applicable laws; (vii) is not subject to any adverse security interest,lien or encumbrance (including tax liens) other than those in favor ofPurchaser; (viii) is eligible for Credit Insurance (as defined in the MSA) orotherwise approved in writing by Purchaser; (ix) does not contain termsproviding for payment in more than thirty (30) days from the date of invoice;and (x) would qualify as an “Eligible Account” (as defined in and under the APLA).

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#### (f)            Good Title.  Seller has good and marketable title to thePurchased Assets, free and clear of all liens, security interests orrestrictions on transfer.  Seller shallnot grant or suffer to exist in favor of any other party, other than Purchaser,any lien upon or security interest in any Purchased Asset (except to the extentpurchased by Seller pursuant to Section 5 or 6 hereof).  Upon each sale, Purchaser shall acquire avalid ownership interest in each Purchased Asset free and clear of all liens,security interests or restrictions on transfer (except as created byPurchaser).

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#### (g)           Location of Books and Records.  All books and records pertaining to thePurchased Assets owned by Seller shall be maintained solely and exclusively atthe addresses set forth on Schedule I hereof and no such books andrecords shall be moved or transferred without giving Purchaser thirty (30) days’prior written notice.

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#### (h)           No Default.  Seller is not in default in the performance,observance, or fulfillment of any of the obligations, covenants, or conditionscontained in any of Seller’s obligations under any Contract or Purchased Asset,except for any such default that could not reasonably be expected to have aMaterial Adverse Effect, and no condition exists that, with the 

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#### giving of notice or the lapse of time or both, wouldconstitute such a default under any Contract or Purchased Asset.

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#### (i)            No Violation of Laws.  Seller is not in violation of any law,ordinance, rule, regulation, order, policy, guideline, or other requirement ofany domestic or foreign government or any instrumentality or agency thereof,having jurisdiction over the conduct of Seller’s business or the ownership ofSeller’s properties, including, without limitation, any violation relating toany use, release, storage, transport, or disposal of any hazardous material,which violation would subject Seller or any of its officers to criminalliability or have a Material Adverse Effect on Seller’s business or operationsand no such violation has been alleged.

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#### (j)            Disclosure; Accuracy ofInformation.  All informationfurnished to Purchaser by or on behalf of Seller concerning the PurchasedAssets or the transactions contemplated by the Transaction Documents, theproceeds thereof, Seller’s financial condition or otherwise, is and will becomplete, accurate, and correct in all material respects at the time the sameis furnished.  The representations andwarranties of Seller contained in the Transaction Documents and the informationcontained in the other documents, certificates and written statements furnishedto Purchaser by or on behalf of Seller for use in connection with thetransactions contemplated by this Agreement or any other Transaction Document,when taken together, do not contain any untrue statement of a material fact oromit to state a material fact necessary in order to make the statementscontained herein or therein not materially misleading in light of thecircumstances in which the same were made. There is no fact known to Seller (other than matters of a generaleconomic nature) that has had, or could reasonably be expected to result in, aMaterial Adverse Effect and that has not been disclosed herein or in such otherdocuments, certificates and statements furnished to Purchaser for use inconnection with the transactions contemplated this Agreement or any otherTransaction Document.  Any projectionsfurnished to Purchaser by or on behalf of Seller are based upon good faithestimates and assumptions believed by Seller to be reasonable at the time made,it being recognized by Purchaser that such projections as to future events arenot to be viewed as facts and that actual results during the period or periodscovered by any such projections may differ from the projected results.

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#### (k)           No Bulk Sales.  No transaction contemplated hereby requirescompliance with any bulk sales act or similar law.

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#### (l)            Preference; Voidability.  Purchaser has given reasonably equivalentvalue to Seller in consideration for the sale to Purchaser of the PurchasedAssets by Seller, and each such sale has not been made for or on account of anantecedent debt owed by Seller to Purchaser.

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#### (m)          Margin Stock.  No proceeds of any sale hereunder or under anyother Transaction Document shall be used by Seller to acquire any security inany transaction which is subject to Section 12 of the Securities Exchange Actof 1934, as amended or for any purpose that violates any applicable law, ruleor regulation, including Regulation U of the Federal Reserve Board.

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#### (n)           Use of Proceeds.  The Sellers shall use the proceeds of thePurchase Price  (i) for general workingcapital purposes and (ii) to pay off all indebtedness owing to Textron 

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#### Financial Corporation by the Sellers, as of theClosing Date, and upon such repayment (which may occur after the Closing Date),all indebtedness and liability owing to Textron Financial Corporation by Sellershall be fully discharged and terminated.

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#### (o)           APLA Covenants.  The covenantsand obligations of each Seller under the APLA shall be incorporated herein bythis reference *mutatis mutandis* and shall, forthe avoidance of doubt, apply to the Purchased Accounts.

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#### (p)           Continuing Representations, etc.  All covenants, representations, andwarranties contained in this Agreement shall be true and correct as of the datehereof and shall be deemed continuing.

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### 5.             Breach of Representation, Warranty or Covenant;Remedy.  If any Seller breaches anyrepresentation, warranty or covenant set forth in Section 4 hereof inrespect of any Purchased Account, the Sellers shall promptly upon Purchaser’swritten request (and, in any event, within five (5) Business Days after receiptthereof) purchase from Purchaser such Purchased Account at a repurchase priceequal to the outstanding face amount of such Purchased Account.

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### 6.             Repurchase Obligation.  If, on the 150th day after the date of theapplicable invoice with respect to a Purchased Account, such Purchased Accountremains partially or fully unpaid, the Sellers shall promptly upon Purchaser’swritten request (and, in any event, within five (5) Business Days after receiptthereof) purchase from Purchaser such Purchased Account at a repurchase priceequal to the outstanding face amount of such Purchased Account; provided,however, that the total of all purchases by the Sellers under this Section6 shall not exceed, in the aggregate, fifteen percent (15%) of the totalPurchase Price for all Purchased Accounts paid by Purchaser under thisAgreement.

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### 7.             Grant of Security Interest.  Notwithstanding the express intent of theparties hereto, if the purchase and sale of the Purchased Assets under thisAgreement is held or deemed not to be a sale under applicable law or is held ordeemed to be a pledge of security for a loan, in such event, (a) each Sellershall be deemed to have granted and does hereby grant to Purchaser a firstpriority security interest in the entire right, title and interest of such Sellerin, to and under all Purchased Assets and all proceeds thereof as collateral securityfor all obligations of Seller under this Agreement and (b) this Agreement shallconstitute a security agreement under applicable law.  Each Seller agrees to execute and deliver toPurchaser such further instruments of assignment, financing statements, andinstruments of further assurance as Purchaser may reasonably require.  Each Seller authorizes Purchaser to file suchUCC financing statements as Purchaser may deem necessary or desirable in orderto perfect and maintain the interests of Purchaser in the PurchasedAssets.  Each Seller further agrees thatPurchaser may file this Agreement or a copy hereof as such UCC financingstatement.

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### 8.                                       Administration.

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#### (a)           The Sellers shall, from time to time,execute and deliver to Purchaser confirmatory schedules of the PurchasedAccounts, together with one (1) copy of each invoice, acceptable evidence ofshipment or performance of services and such other documentation and 

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#### proofs of delivery as Purchaser may reasonablyrequire.  The Sellers agree to prepareand mail all invoices relating to all Purchased Accounts, but Purchaser may doso at Purchaser’s option.

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#### (b)           The Sellers shall instruct allAccount debtors, or cause all Account debtors to be instructed, to cause allCollections and all other payments or other collections in respect ofreceivables originated by any Seller that are not Purchased Accounts to bedeposited directly to the Lockbox Account.

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#### (c)           If any remittances in respect of aPurchased Asset are made directly to any Seller or employees or agents of any Sellerin their individual capacity and not as agent for Purchaser, then such partyshall act as trustee of an express trust for Purchaser’s benefit, hold the sameas Purchaser’s property, and deliver the same to Purchaser forthwith inkind.  Purchaser and/or such designee asPurchaser may from time to time appoint are hereby appointed each Seller’sattorney-in-fact to endorse such Seller’s name on any and all checks or otherforms of remittances received by Purchaser where such endorsement is requiredto effect collection and transmit notices to customers, in such Seller’s orPurchaser’s name, that amounts owing by them have been assigned and are payabledirectly to Purchaser; this power, being coupled with an interest, isirrevocable.

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#### (d)           The Sellers will supply customers, inthe format required by customers, with all forms, documents, certificates, etc.that customers require to process the Purchased Accounts for payment.

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#### (e)           On the effective date of thisAgreement and each subsequent Purchase Date, in coordination with Purchaser’sdaily cash application review and approval as set forth in the LockboxAgreement, and from time to time, upon Purchaser’s request, the Sellers willdeliver to Purchaser an aged trial balance of all then existing PurchasedAccounts.  All such reports shall be inform and substance satisfactory to Purchaser. If Purchaser requests, the Sellers agree to provide Purchaser withcopies of all of the Sellers’ bills of lading or proofs of delivery andsupplier invoices and receiving evidence and of the Sellers’ sales registry,sales journal, or other information regarding sales, including customer openorder reports.

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### 9.             Definitions. As used herein, the following terms shall have the followingcorresponding meanings:

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“APLA”shall mean that certain Asset Purchase and Liability Assumption Agreement,dated as of the date hereof, among Purchaser and the Sellers, as such agreementmay be amended, supplemented, restated, amended and restated, or otherwisemodified from time to time pursuant to the terms thereof.

 

“InitialPurchase Date” shall have the meaning assigned to such term in Section1(a).

 

“Purchased Accounts”shall mean receivables listed on Annex A attached hereto, which may beamended from time to time pursuant to a Purchase Supplement.  Upon the effectiveness of a PurchaseSupplement, the receivables set forth in such Purchase Supplement shall also constitute“Purchased Accounts” hereunder, and Annex A shall automatically beamended and restated to include the new receivables.

 

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“PurchasedAssets” shall mean the Purchased Accounts, the Related Security and theCollections.

 

“Purchase Price”shall mean 80% of the gross book value of all Purchased Accounts lessthe amount of any liability to a third party assumed by Purchaser with respectto such Purchased Accounts.

 

“PurchaseSupplement” shall mean a supplement to this Agreement that (i) is dulyauthenticated (within the meaning of the UCC) by a Seller, (ii) may be inphysical or electronic form, including substantially in the form of ExhibitA attached hereto, (iii) includes a list by invoice sequences ofreceivables offered for purchase thereby, which invoice sequences shall havethe unique sequence identifier (as set forth in Section 1(a) above)identifyingsuch Account as being sold to Purchaser, (iv) includes evidence satisfactory toPurchaser that each Account offered for purchase thereby is an Account eligiblefor sale under this Agreement, including Section 4(e) above, and (v) isotherwise acceptable in form and substance to Purchaser in its sole discretion.

 

“Schedule ofExceptions” shall mean Schedule II attached hereto.

 

“TransactionDocuments” shall mean collectively this Agreement, the Lockbox Agreement,the MSA, the APLA, any Purchase Supplement and all other instruments, documentsand agreements executed by or on behalf of Seller and delivered concurrentlyherewith or at any time hereafter to Purchaser in connection with the PurchasedAccounts and other transactions contemplated by this Agreement, all as amended,supplemented, restated, amended and restated, or otherwise modified from timeto time pursuant to the terms thereof.

 

Capitalized termsused in this Agreement but not defined in this Section 9 shall have therespective meanings given such terms in the APLA.  Terms used in this Agreement that are definedin the UCC but not defined in this Section 9 shall have the meaningsgiven such terms in the UCC.  Thedefinitions of terms herein shall apply equally to the singular and pluralforms of the terms defined.  Whenever thecontext may require, any pronoun shall include the corresponding masculine,feminine and neuter forms.  The words “include”,“includes” and “including” shall be deemed to be followed by the phrase “withoutlimitation”.  The word “will” shall beconstrued to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise or asotherwise expressly provided in this Agreement (i) any definition of orreference to any agreement, instrument or other document herein shall beconstrued as referring to such agreement, instrument or other document as from timeto time amended, restated, amended and restated, supplemented or otherwisemodified (subject to any restrictions on such amendments, supplements ormodifications set forth herein); (ii) any reference herein to any Person shallbe construed to include such Person’s successors and assigns; (iii) the words “herein”,“hereof” and “hereunder”, and words of similar import, shall be construed torefer to this Agreement in its entirety and not to any particular provisionhereof; (iv) all references herein to Sections, Annexes and Schedules shall beconstrued to refer to Sections of, and Annexes and Schedules to, this Agreement(unless expressly referring to another agreement); (v) all accounting terms nototherwise defined herein shall have the meanings assigned to them in conformitywith GAAP; and (vi) all calculations and other information required to be madeor 

 

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deliveredpursuant to this Agreement shall be prepared in accordance with GAAP as ineffect at the time of such preparation.

 

### 10.           Indemnification.  Without limiting any other rights that anysuch person may have hereunder or under applicable law, Seller hereby indemnifiesand holds harmless Purchaser and its successors, transferees and assigns andall officers, directors, shareholders, controlling persons, employees andagents of any of the foregoing (each, an “Indemnified Party”), forthwithon demand, from and against any and all damages, losses, claims, liabilitiesand related costs and expenses, including reasonable attorneys’ fees anddisbursements (collectively, the “Indemnified Amounts”), arising out ofor relating to this Agreement, the other Transaction Documents or the ownershipof any Purchased Asset, excluding, however, (x) Indemnified Amounts to theextent resulting from gross negligence or willful misconduct on the part ofsuch Indemnified Party (it being the intent of Seller to indemnify theIndemnified Parties for their negligence) and (y) the Account debtor’s failureto pay when due the unpaid balance of any Purchased Account as a result of thefinancial inability of such Account debtor to pay or the insolvency thereof(except as otherwise specifically provided in this agreement including, withoutlimitation, Sections 5 and 6 hereof).  Without limiting the foregoing, Seller herebyindemnifies and holds harmless each Indemnified Party for Indemnified Amountsarising out of or relating to:

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#### (a)           the breach of any representation orwarranty made by Seller pursuant to or in connection with this Agreement or anyother Transaction Document;

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#### (b)           any failure of Seller to perform anyof its duties or obligations hereunder; or the nonconformity of any PurchasedAccount or the related Contract or underlying obligations with any applicablelaw, rule or regulation;

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#### (c)           any claim resulting from the sale ofthe merchandise or services related to any Purchased Account or the furnishingof or failure to furnish such merchandise or services; or any productsliability claim arising out of or in connection with merchandise or servicesthat are the subject of any Purchased Account;

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#### (d)           any tax (other than income tax ofPurchaser) or governmental fee or charge, all interest and penalties thereon orwith respect thereto, and all out-of-pocket costs and expenses, including thereasonable fees and expenses of counsel in defending against the same, whichmay arise by reason of the purchase or ownership of any Purchased Account;

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#### (e)           any commingling of collections of thePurchased Accounts with funds of Seller or any of its affiliates; and

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#### (f)            any investigation, litigation orproceeding related to this Agreement or the use of proceeds of purchaseshereunder or the ownership of, or in respect of, any Purchased Account orrelated Contract.

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### 11.                                 Miscellaneous.

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#### (a)           Amendment.  The terms of this Agreement shall not bealtered, modified, amended or supplemented in any manner whatsoever except bywritten instrument signed by all parties hereto and delivered by each party tothe other.

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#### (b)           No Waiver; Cumulative Remedies.  No failure to exercise and no delay inexercising, on the part of Purchaser, any right, remedy, power or privilegehereunder, shall operate as a waiver thereof; nor shall any single or partialexercise of any right, remedy, power or privilege hereunder preclude any otheror further exercise thereof or the exercise of any other right, remedy, poweror privilege.  The rights, remedies,powers and privileges herein provided are cumulative and not exhaustive of anyrights, remedies, powers and privilege provided by law.

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#### (c)           Notices.  Any written notice to be given under thisAgreement shall be in writing addressed to the respective party as follows (orsuch other address as may have been designated in a written notice to the otherparties):

 

If to Purchaser:

 

New England Technology Finance, LLC

c/o Global Technology Finance LLC

1301 Dove Street, Suite 750

Newport Beach, CA 92660

Attention:  Mr. Paul Stemler

Telephone No.:  (949) 955-1866

Facsimile No.:  (949) 955-1907

Email address:  pstemler@4gtf.com

 

With a copy to:

 

Latham & Watkins LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071-2007

Attention:  Dominic Yoong

Telephone No.:  (213) 891-8704

Facsimile No.:  (213) 891-8763

Email address:  dominic.yoong@lw.com

 

If to any Seller:

 

c/o Dyntek, Inc.

19700 Fairchild Road, Suite 350

Irvine, CA 92612

Attention:  Chief FinancialOfficer

Telephone No.:  (949) 955-0078

Facsimile No.:  (949) 955-0086

Email address: Robert.Webber@dyntek.com

 

with a copy to:

 

Stradling Yocca Carlson & Rauth

660 Newport Center Drive, Suite 1600

 

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Newport Beach, California 92660

Attention:  Christopher D. Ivey

Telephone No.:  (949) 725-4000

Facsimile No.:  (949) 823-5121

Email address:  civey@SYCR.com

 

All writtennotices will be personally served, telecopied, emailed or sent by overnightcourier service or United States mail and will be deemed to have beengiven:  (i) if delivered in person, whendelivered; (ii) if delivered by telecopy, on the date of transmission iftransmitted on a business day before 4:00 p.m. (New York, New York time) or, ifnot, on the next succeeding business day; (iii) if delivered by overnightcourier, when delivered; (iv) if emailed, when received; or (v) if by UnitedStates mail, four (4) business days after depositing the same in the UnitedStates mail, postage prepaid and properly addressed.

 

#### (d)           Assignment.  This Agreement may not be assigned by any Sellerwithout Purchaser’s prior written consent. Each Seller acknowledges and agrees that Purchaser may assign ascollateral its right, title and interest in this Agreement and the otherTransaction Documents to its lenders or factors, including the Purchaser SeniorCreditor.

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#### (e)           Binding Effect.  This Agreement shall inure to the benefit ofand be binding upon the parties hereto and their respective successors andpermitted assigns.  The Purchaser SeniorCreditor is intended by the parties hereto to be a third-party beneficiary ofthis Agreement.

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#### (f)            Entire Agreement.  This Agreement, together with any and allother Transaction Documents, constitute the final and entire agreement amongthe parties hereto and supersedes any and all prior commitments, agreements,representations, and understandings, whether written or oral, relating to thesubject matter hereof and may not be contradicted or varied by evidence ofprior, contemporaneous, or subsequent oral agreements or discussions of theparties hereto.

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#### (g)           Governing Law.  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCEWITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTSMADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWSPRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWOF THE STATE OF NEW YORK.

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#### (h)           Dispute Resolution.  Except where injunctive relief is sought, inthe event of a dispute between the parties for which the parties are unable toreach a mutually agreeable resolution in a reasonable matter of time, thedispute shall be submitted to arbitration under the commercial arbitrationrules of the American Arbitration Association then in effect.  There shall be a panel of three arbitratorsmutually agreed to by the parties (each party selecting one arbitrator and thetwo arbitrators then selecting a third arbitrator); each arbitrator shall haveexperience in and understanding of the subject matter of the controversy.  The hearing shall be held at a mutuallyacceptable geographic location and shall be no more than five (5) days induration.  After the hearing, the panelshall decide the controversy and render a written decision 

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#### setting forth the issuesadjudicated, the resolution thereof and the reasons for the award.  Such decision shall be binding on allparties.  Payment of the expenses ofarbitration, including the fee of the arbitrators, shall be assessed by thepanel based on the extent to which each party prevails.

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#### (i)            SUBMISSION TO JURISDICTION.  SUBJECT TO SECTION 11(h), EACH SELLERHEREBY CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURTLOCATED WITHIN THE COUNTY OF NEW YORK, THE STATE OF NEW YORK.  IF ANY SELLER PRESENTLY IS, OR IN THE FUTUREBECOMES, A NONRESIDENT OF THE STATE OF NEW YORK, SUCH SELLER HEREBY WAIVESPERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OFPROCESS MAY BE MADE UPON SUCH SELLER BY CERTIFIED OR REGISTERED MAIL, RETURNRECEIPT REQUESTED, DIRECTED TO SUCH SELLER, AT THE ADDRESS OF SUCH SELLER INPURCHASER’S RECORDS AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTERTHE SAME HAS BEEN POSTED AS AFORESAID.

####  

#### (j)            WAIVER OF JURY TRIAL.  SUBJECT TO SECTION 11(h), THE SELLERSAND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIMOR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHERTRANSACTION DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANYDEALINGS BETWEEN ANY SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OFTHIS TRANSACTION AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED.  THE SELLERS AND PURCHASER EACH ACKNOWLEDGETHAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESSRELATIONSHIP, THAT EACH OF THE SELLERS AND PURCHASER HAS ALREADY RELIED ON THISWAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH OF THE SELLERS ANDPURCHASER WILL CONTINUE TO RELY ON THIS WAIVER IN ANY RELATED FUTURE DEALINGSBETWEEN ANY SELLER AND PURCHASER.  THE SELLERSAND PURCHASER FURTHER WARRANT AND REPRESENT THAT THEY EACH KNOWINGLY ANDVOLUNTARILY WAIVE THEIR RESPECTIVE JURY TRIAL RIGHTS FOLLOWING CONSULTATIONWITH LEGAL COUNSEL.

####  

#### (k)           Headings.  Section headings herein are included hereinfor convenience of reference only and shall not constitute a part hereof forany other purpose or be given any substantive effect.

####  

#### (l)            Severability of Provisions.  In the event that any provision of thisAgreement is deemed to be invalid by reason of the operation of any law or byreason of the interpretation placed thereon by any court, this Agreement shallbe construed as not containing such provision, the invalidity of such provisionwill not affect the validity of any other provision of this Agreement and allother provisions of this Agreement which are otherwise lawful and valid shallremain in full force and effect.

####  

#### (m)          Counterparts.  This Agreement may be executed in multiplecounterparts, each of which shall be deemed to be an original, and all of whichtogether shall constitute one and the same instrument.  Delivery of an executed counterpart of thisAgreement by facsimile or 

####  

12

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#### email shall be equally as effective as delivery of anoriginal executed counterpart of this Agreement.

####  

#### (n)           Setoff.  Each Seller hereby agrees that Purchaser isauthorized at any time or from time to time, upon ten (10) business dayswritten notice to Seller (or one (1) business day notice if the APLA has beenterminated), to setoff and to appropriate and apply any and all amounts held byPurchaser for the account of Seller (including, without limitation, anyPurchase Price) against and on account of any amounts due and owing toPurchaser by any Seller at any time, including, without limitation, amounts dueand owing to Purchaser under the other Transaction Documents.

 

(*Signature PageFollows*)

 

13

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IN WITNESSWHEREOF, each of the Sellers and Purchaser has caused this Asset PurchaseAgreement to be executed by their respective duly authorized officers as of theday first written above.

 
| ** ** | **THE SELLERS:**                     |
|------------|--------------------------------------|
|       |                                 |   |
|       | DYNTEK, INC.                         |
|       |                                 |   |
|       |                                 |   |
|       | By                                   |   |   |
|       |                                 | Name: |   |
|       |                                 | Title: |   |
|       |                                 |   |
|       |                                 |   |
|       | DYNTEK SERVICES, INC.                |
|       |                                 |   |
|       |                                 |   |
|       | By                                   |   |   |
|       |                                 | Name: |   |
|       |                                 | Title: |   |
|       |                                 |   |
|       |                                 |   |
| ** ** | **PURCHASER:**                       |
| ** ** | ** **                           |
|       |                                 |   |
|       | NEW ENGLAND TECHNOLOGY  FINANCE, LLC |
|       |                                 |   |
|       |                                 |   |
|       | By                                   |   |   |
|       |                                 | Name: |   |
|       |                                 | Title: |   |
|            |                                      |  |  |  |

 

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**ANNEX A**

 

**PurchasedAccounts**

 

(see attached)

 

----

 

**SCHEDULEI**

 

**Addresse(s)**

 

19700 Fairchild Road, Suite 350

Irvine, CA 92612

 

24401 Halstead Road

Farmington Hills, Michigan 48335

 

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**SCHEDULEII**

 

**Scheduleof Exceptions**

 

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**EXHIBITA**

 

**FORM OF**

**PURCHASESUPPLEMENT**

 

This Purchase Supplement, dated as of [  ], 200[  ](this “Purchase Supplement”), is delivered pursuant to that certainAsset Purchase Agreement, dated as of               ,2005 (as amended, restated, supplemented or otherwise modified from time totime, the “Agreement”) from Dyntek, Inc., a Delaware corporation, andDyntek Services, Inc., a Delaware corporation (collectively, the “Sellers”),to New York Technology Finance, LLC, a Delaware limited liability company, aspurchaser (“Purchaser”). Capitalized terms used herein but not otherwise defined herein shallhave the meanings ascribed thereto in the Agreement.

 

Pursuant to Section 1(b) of the Agreement, the Sellershereby delivers this Purchase Supplement and offers the receivables set forthon Annex A hereto and the related Collections and Related Security(determined as if such receivables were “Purchased Accounts”) for sale toPurchaser subject to the terms of the Agreement.  The Purchase Price for such assets is $[  ](1).

 

Purchaser may elect, in its sole discretion, topurchase such assets by signing the acknowledgment below.  Upon the satisfaction of the conditionsprecedent set forth in Section 3(b) of the Agreement, Purchaser shall deliver,by wire or otherwise, the Purchase Price for such receivables, and such receivablesshall automatically constitute “Purchased Accounts” under the Agreement, andAnnex A to the Agreement shall automatically be amended and restated to includesuch new receivables.  For the avoidanceof doubt, upon purchase by Purchaser, each such Purchased Account shall havethe unique sequence identifier identifying such Account as being sold toPurchaser, as set forth in the Lockbox Agreement.

 

For the avoidance of doubt, each of the parties heretoacknowledge and agree that Purchaser shall be entitled to all rights under theAgreement with respect to the “Purchased Assets” purchased pursuant to thisPurchase Supplement, and that the representations and warranties contained inthe Agreement and in the other Transaction Documents shall be true, correct andcomplete in all material respects on and as of the date hereof (except to theextent such representations and warranties specifically relate to an earlierdate, in which case such representations and warranties shall have been true,correct and complete in all material respects on and as of such earlier date).

 

**INWITNESS WHEREOF**, the Sellers have caused this PurchaseSupplement to be duly executed and delivered by its duly authorized officer asof the date set forth above.

 
|   | DYNTEK, INC. |
|--------|--------------|
|   |         |   |
|   | By           |   |

 

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(1)                                  Withrespect to additional Purchased Accounts, 80% of the gross book value of suchreceivables less the amount of any liability to any third party assumedby Purchaser with respect to such receivables.

 

----

 
|   |                  | Name:  |   |
|--------|-----------------------|--------|--------|
|   |                  | Title: |   |
|   |                  |   |
|   | DYNTEK SERVICES, INC. |
|   |                  |   |
|   | By                    |   |
|   |                  | Name:  |   |
|   |                  | Title: |   |

 

 

ACKNOWLEDGED AND ACCEPTED:

 

NEW ENGLAND TECHNOLOGY FINANCE, LLC

 
| By:    |   |   |
|--------|--------|--------|
|   | Name:  |   |
|   | Title: |   |
|        |        |        |  |

 

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