Exhibit
10.2


 


ASSET
PURCHASE AGREEMENT


 


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


 


1.             Agreement.


 


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


 


(b)           Purchase on any Date Subsequent to
the Initial Purchase Date.  Any
Seller may, from time to time after the Initial Purchase Date, offer to sell to
Purchaser additional Purchased Assets by providing Purchaser a duly executed
Purchase Supplement, and Purchaser may, from time to time, at its sole
discretion, agree to purchase such additional Purchased Assets subject to the
conditions precedent set forth in Section 3(b) below.


 


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


 





















 


3.             Conditions Precedent.


 


(a)           The effectiveness of this Agreement
and the obligation of Purchaser to purchase the Purchased Assets, as of the
date hereof, is subject to the satisfaction of all of the conditions set forth
below:


 


(1)           Purchaser
shall have received, in form and substance satisfactory to Purchaser, the duly
executed Transaction Documents and all other documents, instruments,
information, agreements, notes, guarantees, certificates, orders, authorizations,
financing statements, mortgages, and other documents which Purchaser may
reasonably request.


 


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


 


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


 


(4)           The
Sellers shall have received all requisite governmental and third party approvals
and consents, all satisfactory in form and substance to Purchaser.


 


(5)           The
Sellers shall have received a release of security interest or waiver and
consent from Textron Financial Corporation, Laurus Master Fund, Ltd. and Ingram
Micro, Inc., each in form and substance reasonably satisfactory to Purchaser.


 


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


 


(1)           Purchaser
shall have received a duly authenticated Purchase Supplement.


 


(2)           The
representations and warranties contained herein and in the other Transaction
Documents shall be true, correct and complete in all material respects on and
as of the applicable Purchase Date (except to the extent such representations
and warranties specifically relate to an earlier date, 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).


 


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(3)           Each
Seller shall have performed in all material respects all agreements required of
such Seller under this Agreement and the other Transaction Documents.


 


(4)           Except
as set forth in the Schedule of Exceptions, there shall not be pending or, to the
best knowledge of the Sellers, threatened, any litigation, action, charge,
claim, demand, suit, proceeding, petition, governmental investigation, or
arbitration by, against, or affecting any Seller or any of its subsidiaries or
any property of Seller or any of its subsidiaries that has not been disclosed
by the Sellers in writing, and there shall have occurred no development in any
such action, charge, claim, demand, suit, proceeding, petition, governmental
investigation, or arbitration that, in Purchaser’s commercially reasonable
judgment, would reasonably be expected to have a Material Adverse Effect.


 


(5)           The
Sellers shall have received all requisite governmental and third party approvals
and consents, all reasonably satisfactory in form and substance to Purchaser.


 


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


 


(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 organization
and has all organizational power and all material governmental licenses,
authorizations, consents and approvals required to carry on its business in
each jurisdiction in which its business is now conducted and each Seller is
duly qualified to do business in, and is in good standing in, every other
jurisdiction in which the nature of its business requires it to be so
qualified, except where the failure to have such items or to be so qualified or
in good standing would not have a Material Adverse Effect.


 


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


 


(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, or
arbitration now pending or, to the best of any Seller’s knowledge after due
inquiry, threatened against or affecting any Seller or any of its property
which could reasonably be expected to result in a Material Adverse Effect.  No Seller has received any opinion or
memorandum or legal advice from legal counsel to the effect that 


 


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any Seller is exposed to any liability or disadvantage
which could reasonably be expected to result in a Material Adverse Effect.  No Seller is in violation of any material
order of any court, arbitrator or governmental entity.


 


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


 


(e)           Purchased Account.  At the time of its sale and assignment to
Purchaser, each Purchased Account is a valid, bona fide Account, representing
an undisputed indebtedness incurred by the named customer for goods actually
sold and delivered or for services completely rendered and such Purchased
Account: (i) arises out of the sale of goods or vendor-provided services in the
ordinary course of business; (ii) does not arise out of a sale made to an
Affiliate of Seller for operational use by that Affiliate and not for
subsequent sale to a customer of such Affiliate; (iii) has no set-off, offset,
counterclaim, or defense, genuine or otherwise, to the payment or collection of
such Purchased Account; (iv) is payable in U.S. dollars and the equipment
related thereto is located inside the continental United States, Canada or on a
foreign military base (excluding the province of New Foundland, the Northwest
Territories and the Territory of Nunavit); (v) does not represent a guaranteed
sale, a bill and hold transaction, a sale-and-return, a sale on approval, a
cash on delivery sale or a consignment sale or is not made pursuant to any
other written agreement providing for repurchase or return; (vi) complies with
all applicable laws; (vii) is not subject to any adverse security interest,
lien or encumbrance (including tax liens) other than those in favor of
Purchaser; (viii) is eligible for Credit Insurance (as defined in the MSA) or
otherwise approved in writing by Purchaser; (ix) does not contain terms
providing 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).


 


(f)            Good Title.  Seller has good and marketable title to the
Purchased Assets, free and clear of all liens, security interests or
restrictions on transfer.  Seller shall
not 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 extent
purchased by Seller pursuant to Section 5 or 6 hereof).  Upon each sale, Purchaser shall acquire a
valid ownership interest in each Purchased Asset free and clear of all liens,
security interests or restrictions on transfer (except as created by
Purchaser).


 


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


 


(h)           No Default.  Seller is not in default in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained 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 a
Material Adverse Effect, and no condition exists that, with the 


 


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


 


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


 


(j)            Disclosure; Accuracy of
Information.  All information
furnished to Purchaser by or on behalf of Seller concerning the Purchased
Assets or the transactions contemplated by the Transaction Documents, the
proceeds thereof, Seller’s financial condition or otherwise, is and will be
complete, accurate, and correct in all material respects at the time the same
is furnished.  The representations and
warranties of Seller contained in the Transaction Documents and the information
contained in the other documents, certificates and written statements furnished
to Purchaser by or on behalf of Seller for use in connection with the
transactions contemplated by this Agreement or any other Transaction Document,
when taken together, do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained herein or therein not materially misleading in light of the
circumstances in which the same were made. 
There is no fact known to Seller (other than matters of a general
economic nature) that has had, or could reasonably be expected to result in, a
Material Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to Purchaser for use in
connection with the transactions contemplated this Agreement or any other
Transaction Document.  Any projections
furnished to Purchaser by or on behalf of Seller are based upon good faith
estimates and assumptions believed by Seller to be reasonable at the time made,
it being recognized by Purchaser that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.


 


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


 


(l)            Preference; Voidability.  Purchaser has given reasonably equivalent
value to Seller in consideration for the sale to Purchaser of the Purchased
Assets by Seller, and each such sale has not been made for or on account of an
antecedent debt owed by Seller to Purchaser.


 


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


 


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


 


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


 


(o)           APLA Covenants.  The covenants
and obligations of each Seller under the APLA shall be incorporated herein by
this reference mutatis mutandis and shall, for
the avoidance of doubt, apply to the Purchased Accounts.


 


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


 


5.             Breach of Representation, Warranty or Covenant;
Remedy.  If any Seller breaches any
representation, warranty or covenant set forth in Section 4 hereof in
respect of any Purchased Account, the Sellers shall promptly upon Purchaser’s
written request (and, in any event, within five (5) Business Days after receipt
thereof) purchase from Purchaser such Purchased Account at a repurchase price
equal to the outstanding face amount of such Purchased Account.


 


6.             Repurchase Obligation.  If, on the 150th day after the date of the
applicable invoice with respect to a Purchased Account, such Purchased Account
remains partially or fully unpaid, the Sellers shall promptly upon Purchaser’s
written request (and, in any event, within five (5) Business Days after receipt
thereof) purchase from Purchaser such Purchased Account at a repurchase price
equal to the outstanding face amount of such Purchased Account; provided,
however, that the total of all purchases by the Sellers under this Section
6 shall not exceed, in the aggregate, fifteen percent (15%) of the total
Purchase Price for all Purchased Accounts paid by Purchaser under this
Agreement.


 


7.             Grant of Security Interest.  Notwithstanding the express intent of the
parties hereto, if the purchase and sale of the Purchased Assets under this
Agreement is held or deemed not to be a sale under applicable law or is held or
deemed to be a pledge of security for a loan, in such event, (a) each Seller
shall be deemed to have granted and does hereby grant to Purchaser a first
priority security interest in the entire right, title and interest of such Seller
in, to and under all Purchased Assets and all proceeds thereof as collateral security
for all obligations of Seller under this Agreement and (b) this Agreement shall
constitute a security agreement under applicable law.  Each Seller agrees to execute and deliver to
Purchaser such further instruments of assignment, financing statements, and
instruments of further assurance as Purchaser may reasonably require.  Each Seller authorizes Purchaser to file such
UCC financing statements as Purchaser may deem necessary or desirable in order
to perfect and maintain the interests of Purchaser in the Purchased
Assets.  Each Seller further agrees that
Purchaser may file this Agreement or a copy hereof as such UCC financing
statement.


 


8.                                       Administration.


 


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


 


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proofs of delivery as Purchaser may reasonably
require.  The Sellers agree to prepare
and mail all invoices relating to all Purchased Accounts, but Purchaser may do
so at Purchaser’s option.


 


(b)           The Sellers shall instruct all
Account debtors, or cause all Account debtors to be instructed, to cause all
Collections and all other payments or other collections in respect of
receivables originated by any Seller that are not Purchased Accounts to be
deposited directly to the Lockbox Account.


 


(c)           If any remittances in respect of a
Purchased Asset are made directly to any Seller or employees or agents of any Seller
in their individual capacity and not as agent for Purchaser, then such party
shall act as trustee of an express trust for Purchaser’s benefit, hold the same
as Purchaser’s property, and deliver the same to Purchaser forthwith in
kind.  Purchaser and/or such designee as
Purchaser may from time to time appoint are hereby appointed each Seller’s
attorney-in-fact to endorse such Seller’s name on any and all checks or other
forms of remittances received by Purchaser where such endorsement is required
to effect collection and transmit notices to customers, in such Seller’s or
Purchaser’s name, that amounts owing by them have been assigned and are payable
directly to Purchaser; this power, being coupled with an interest, is
irrevocable.


 


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


 


(e)           On the effective date of this
Agreement and each subsequent Purchase Date, in coordination with Purchaser’s
daily cash application review and approval as set forth in the Lockbox
Agreement, and from time to time, upon Purchaser’s request, the Sellers will
deliver to Purchaser an aged trial balance of all then existing Purchased
Accounts.  All such reports shall be in
form and substance satisfactory to Purchaser. 
If Purchaser requests, the Sellers agree to provide Purchaser with
copies of all of the Sellers’ bills of lading or proofs of delivery and
supplier invoices and receiving evidence and of the Sellers’ sales registry,
sales journal, or other information regarding sales, including customer open
order reports.


 


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


 


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


 


“Initial
Purchase Date” shall have the meaning assigned to such term in Section
1(a).


 


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


 


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“Purchased
Assets” shall mean the Purchased Accounts, the Related Security and the
Collections.


 


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


 


“Purchase
Supplement” shall mean a supplement to this Agreement that (i) is duly
authenticated (within the meaning of the UCC) by a Seller, (ii) may be in
physical or electronic form, including substantially in the form of Exhibit
A attached hereto, (iii) includes a list by invoice sequences of
receivables offered for purchase thereby, which invoice sequences shall have
the unique sequence identifier (as set forth in Section 1(a) above) identifying
such Account as being sold to Purchaser, (iv) includes evidence satisfactory to
Purchaser that each Account offered for purchase thereby is an Account eligible
for sale under this Agreement, including Section 4(e) above, and (v) is
otherwise acceptable in form and substance to Purchaser in its sole discretion.


 


“Schedule of
Exceptions” shall mean Schedule II attached hereto.


 


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


 


Capitalized terms
used in this Agreement but not defined in this Section 9 shall have the
respective meanings given such terms in the APLA.  Terms used in this Agreement that are defined
in the UCC but not defined in this Section 9 shall have the meanings
given such terms in the UCC.  The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context 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 “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise or as
otherwise expressly provided in this Agreement (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time
to time amended, restated, amended and restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein); (ii) any reference herein to any Person shall
be construed to include such Person’s successors and assigns; (iii) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof; (iv) all references herein to Sections, Annexes and Schedules shall be
construed to refer to Sections of, and Annexes and Schedules to, this Agreement
(unless expressly referring to another agreement); (v) all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP; and (vi) all calculations and other information required to be made
or 


 


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delivered
pursuant to this Agreement shall be prepared in accordance with GAAP as in
effect at the time of such preparation.


 


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


 


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


 


(b)           any failure of Seller to perform any
of its duties or obligations hereunder; or the nonconformity of any Purchased
Account or the related Contract or underlying obligations with any applicable
law, rule or regulation;


 


(c)           any claim resulting from the sale of
the merchandise or services related to any Purchased Account or the furnishing
of or failure to furnish such merchandise or services; or any products
liability claim arising out of or in connection with merchandise or services
that are the subject of any Purchased Account;


 


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


 


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


 


(f)            any investigation, litigation or
proceeding related to this Agreement or the use of proceeds of purchases
hereunder or the ownership of, or in respect of, any Purchased Account or
related Contract.


 


11.                                 Miscellaneous.


 


(a)           Amendment.  The terms of this Agreement shall not be
altered, modified, amended or supplemented in any manner whatsoever except by
written instrument signed by all parties hereto and delivered by each party to
the other.


 


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(b)           No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of Purchaser, 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 not exhaustive of any
rights, remedies, powers and privilege provided by law.


 


(c)           Notices.  Any written notice to be given under this
Agreement shall be in writing addressed to the respective party as follows (or
such other address as may have been designated in a written notice to the other
parties):


 


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 Financial
Officer


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 written
notices will be personally served, telecopied, emailed or sent by overnight
courier service or United States mail and will be deemed to have been
given:  (i) if delivered in person, when
delivered; (ii) if delivered by telecopy, on the date of transmission if
transmitted on a business day before 4:00 p.m. (New York, New York time) or, if
not, on the next succeeding business day; (iii) if delivered by overnight
courier, when delivered; (iv) if emailed, when received; or (v) if by United
States mail, four (4) business days after depositing the same in the United
States mail, postage prepaid and properly addressed.


 


(d)           Assignment.  This Agreement may not be assigned by any Seller
without Purchaser’s prior written consent. 
Each Seller acknowledges and agrees that Purchaser may assign as
collateral its right, title and interest in this Agreement and the other
Transaction Documents to its lenders or factors, including the Purchaser Senior
Creditor.


 


(e)           Binding Effect.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.  The Purchaser Senior
Creditor is intended by the parties hereto to be a third-party beneficiary of
this Agreement.


 


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


 


(g)           Governing Law.  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW
OF THE STATE OF NEW YORK.


 


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


 


11





















 


setting forth the issues
adjudicated, the resolution thereof and the reasons for the award.  Such decision shall be binding on all
parties.  Payment of the expenses of
arbitration, including the fee of the arbitrators, shall be assessed by the
panel based on the extent to which each party prevails.


 


(i)            SUBMISSION TO JURISDICTION.  SUBJECT TO SECTION 11(h), EACH SELLER
HEREBY CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF NEW YORK, THE STATE OF NEW YORK.  IF ANY SELLER PRESENTLY IS, OR IN THE FUTURE
BECOMES, A NONRESIDENT OF THE STATE OF NEW YORK, SUCH SELLER HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE UPON SUCH SELLER BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO SUCH SELLER, AT THE ADDRESS OF SUCH SELLER IN
PURCHASER’S RECORDS AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER
THE SAME HAS BEEN POSTED AS AFORESAID.


 


(j)            WAIVER OF JURY TRIAL.  SUBJECT TO SECTION 11(h), THE SELLERS
AND PURCHASER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY
DEALINGS BETWEEN ANY SELLER AND PURCHASER RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED.  THE SELLERS AND PURCHASER EACH ACKNOWLEDGE
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH OF THE SELLERS AND PURCHASER HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH OF THE SELLERS AND
PURCHASER WILL CONTINUE TO RELY ON THIS WAIVER IN ANY RELATED FUTURE DEALINGS
BETWEEN ANY SELLER AND PURCHASER.  THE SELLERS
AND PURCHASER FURTHER WARRANT AND REPRESENT THAT THEY EACH KNOWINGLY AND
VOLUNTARILY WAIVE THEIR RESPECTIVE JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.


 


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


 


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


 


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


 


12





















 


email shall be equally as effective as delivery of an
original executed counterpart of this Agreement.


 


(n)           Setoff.  Each Seller hereby agrees that Purchaser is
authorized at any time or from time to time, upon ten (10) business days
written notice to Seller (or one (1) business day notice if the APLA has been
terminated), to setoff and to appropriate and apply any and all amounts held by
Purchaser for the account of Seller (including, without limitation, any
Purchase Price) against and on account of any amounts due and owing to
Purchaser by any Seller at any time, including, without limitation, amounts due
and owing to Purchaser under the other Transaction Documents.


 


(Signature Page
Follows)


 


13





















 


IN WITNESS
WHEREOF, each of the Sellers and Purchaser has caused this Asset Purchase
Agreement to be executed by their respective duly authorized officers as of the
day 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:

  	
   

  
					



 





















 


ANNEX A


 


Purchased
Accounts


 


(see attached)


 





















 


SCHEDULE
I


 


Addresse(s)


 


19700 Fairchild Road, Suite 350


Irvine, CA 92612


 


24401 Halstead Road


Farmington Hills, Michigan 48335


 





















 


SCHEDULE
II


 


Schedule
of Exceptions


 





















 


EXHIBIT
A


 


FORM OF


PURCHASE
SUPPLEMENT


 


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


 


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


 


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


 


For the avoidance of doubt, each of the parties hereto
acknowledge and agree that Purchaser shall be entitled to all rights under the
Agreement with respect to the “Purchased Assets” purchased pursuant to this
Purchase Supplement, and that the representations and warranties contained in
the Agreement and in the other Transaction Documents shall be true, correct and
complete in all material respects on and as of the date hereof (except to the
extent such representations and warranties specifically relate to an earlier
date, 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).


 


IN
WITNESS WHEREOF, the Sellers have caused this Purchase
Supplement to be duly executed and delivered by its duly authorized officer as
of the date set forth above.


 


	
   

  	
  DYNTEK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  



 










(1)                                  With
respect to additional Purchased Accounts, 80% of the gross book value of such
receivables less the amount of any liability to any third party assumed
by 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: