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).
2
(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
3
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
4
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
5
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 S
|
