EXHIBIT 10.1
SECOND AMENDMENT
TO
NOTE PURCHASE
AGREEMENT
And
SECURITY AND PLEDGE
AGREEMENTS
dated as of
September 26, 2006
among
DYNTEK, INC.,
DYNTEK SERVICES,
INC.
and
THE PURCHASERS NAMED
HEREIN
SECOND AMENDMENT TO NOTE PURCHASE
AGREEMENT AND TO SECURITY AND PLEDGE AGREEMENTS
THIS SECOND AMENDMENT TO NOTE
PURCHASE AGREEMENT AND TO SECURITY AND PLEDGE AGREEMENTS (this
“ Second Amendment ”) dated as of September 26,
2006, is among DYNTEK, INC., a Delaware corporation (the “
Company ”), DYNTEK SERVICES, INC., a Delaware
corporation (the “ Subsidiary ” and, together
with the Company, the “ Debtors ”), and the
undersigned purchasers hereto (each individually a “
Purchaser ” and collectively the “
Purchasers ”).
R E C I T A L
S
A.
WHEREAS, the Company and the
Purchasers are parties to that certain Note Purchase Agreement
dated as of March 8, 2006 (the “ Purchase Agreement
”), as amended by that certain First Amendment to Note
Purchase Agreement dated as of June 15, 2006 (the “ First
Amendment ”, and together with the Purchase Agreement,
the “ Amended Purchase Agreement ”), pursuant to
which, among other things, (i) the Company has issued and sold to
the Purchasers an initial aggregate principal amount of $6,700,000
of its senior secured promissory notes (the “ Senior
Notes ”), (ii) the Company has issued and sold to Trust
A-4 - Lloyd I. Miller (“ Trust A-4 ”) junior
secured convertible promissory notes in the initial aggregate
principal amount of $3,000,000 (the “ First Junior
Note ”) and $1,000,000 (the “ Second Junior
Note ” and together with the First Junior Note, the
“ Original Junior Notes ”), respectively, and
(iii) the parties agreed that, upon the request of Lloyd I. Miller,
III (“ Miller ”) or an affiliate of Miller, and
upon the consent of the Company, the Company shall issue and sell
to Miller or an affiliate of Miller up to an aggregate principal
amount of $3,000,000 of additional junior secured convertible
promissory notes, pursuant to the same terms and conditions as
provided for with respect to the issuance of the Original Junior
Notes in the Amended Purchase Agreement;
B.
WHEREAS, as a condition to the
Purchasers’ obligations to enter into the Purchase Agreement
and to extend credit to the Company thereunder, the Debtors
executed and delivered certain Security and Pledge Agreements (as
amended) (the “ Security Agreements ” and,
collectively referred to herein with the Purchase Agreement as the
“ Note Documents ”), each dated as of March 8,
2006, and amended as of June 15, 2006, by and between the Debtors
and the Purchasers (in respect of the Senior Notes) (the “
Senior Security Agreement ”) and by and between the
Debtors and Trust A-4 (in respect of the Original Junior Note) (the
“ Junior Security Agreement ”), as security for
the payment and performance of all obligations of the Debtors to
the Purchasers and to guarantee all of the obligations of the
Debtors under the Purchase Agreement.
C.
WHEREAS, the Company wishes to issue
and sell to Trust A-4 an additional junior secured convertible
promissory note in the initial principal amount of $3,000,000 (the
“ Third Junior Note ”), pursuant to the same
terms and conditions as provided for the Original Junior Notes in
the Amended Purchase Agreement.
D.
WHEREAS, the Company and the
Purchasers have agreed that to satisfy the purchase and sale of the
Third Junior Note, Trust A-4 shall deliver to the Company
$3,000,000
less the Purchaser’s
reasonable estimated expenses to be paid by the Company pursuant to
Section 7.01 of the Purchase Agreement, and the Company (upon
receipt of same) shall issue in consideration thereof the Third
Junior Note;
E.
WHEREAS, in order to satisfy the
foregoing, both the Debtors and the Purchasers have agreed to amend
certain provisions of the Amended Purchase Agreement and update the
Disclosure Schedules to the Note Documents and the Debtors have
also agreed to ratify and affirm all of their respective
obligations under the Note Documents.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Defined Terms
. Each capitalized term used
herein but not otherwise defined herein has the meaning given such
term in the Amended Purchase Agreement. Unless otherwise
indicated, all references to Sections in this Second Amendment
refer to Sections of the Amended Purchase Agreement.
Section 2.
Amendments to Amended Purchase
Agreement .
2.1
Amendments to Introductory
Recital
(a)
The definition of “
Agreement ” is hereby amended in its entirety to read
as follows:
“ Agreement ”
means this Note Purchase Agreement, dated as of March 8, 2006,
between the Company and the Purchasers, as amended by each of the
First Amendment and Second Amendment, respectively, and as the same
may be amended, modified, supplemented or restated from time to
time in accordance herewith.
(b)
The definition of “Second
Amendment” is hereby inserted to read as follows:
“ Second Amendment
” means the Second Amendment to Note Purchase Agreement,
dated as of September 26, 2006 by and among the Debtors and the
Purchasers.
2.2
Further Amendments to Amended
Purchase Agreement
(a)
Section 1.02 is hereby amended in
its entirety to read as follows:
“The Company has authorized
the issuance and sale to Miller or an affiliate of Miller’s,
the Company’s Junior Secured Convertible Promissory Notes,
due March 1, 2011 (the “ Junior Note Maturity
Date ”), in the original aggregate principal amount of up
to $7,000,000. The Company shall issue to Trust A-4, dated as
of March 8, 2006, a Junior Secured Convertible Promissory Note, in
the original principal amount of $3,000,000 (the “
Original Junior Note ”),
due on the Junior Note Maturity
Date. The Original Junior Note will be substantially in the
form set forth in Exhibit F hereto. The Company
shall issue to Trust A-4, a subsequent Junior Secured Convertible
Promissory Note, dated as of the date of the First Amendment, a
Junior Secured Convertible Promissory Note, in the original
principal amount of $1,000,000 (the “ Second Junior
Note ”), due on the Junior Note Maturity Date. The
Second Junior Note will be substantially in the form set forth in
Exhibit G hereto. The Company shall issue to Trust
A-4, a subsequent Junior Secured Convertible Promissory Note, dated
as of the date of the Second Amendment, a Junior Secured
Convertible Promissory Note, in the original principal amount of
$3,000,000 (the “ Third Junior Note ”), due on
the Junior Note Maturity Date. T
