Exhibit 10.53
STATE OF NEW YORK
NEW YORK STATE DEPARTMENT OF LABOR
AMENDMENT NO. 3 TO
COMPTROLLER'S CONTRACT NO. C000857
WITH APPLIED THEORY CORPORATION
THIS AGREEMENT is made this 24th day of July, 2002 by and between the
People of the State of New York, acting by and through Xxxxx Xxxxxxx, the
Commissioner of Labor, whose office is at the 5th Floor of Building 12, Governor
H. Xxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Labor" or "State") and Applied Theory Corporation,
Inc., a corporation authorized to do business in the State of New York, with an
office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, X.X. 00000 (hereinafter referred to as
"AppliedTheory" or "Contractor").
W I T N E S S E T H:
WHEREAS, the parties entered into Comptroller's Contract No. C000857
(hereinafter "Contract") approved by the State Comptroller on November 30, 2000,
for the provision of Software development and maintenance, Web Hosting and Help
Desk services (hereinafter "Software Services"), and
WHEREAS, the Contract provided tor the Department to spend $19,000,000
for Software Services and to increase additional expenditures in an amount of up
to $82,000,000 over a term of five (5) years subject to the periodic extension
of funding (hereinafter "Contract Funding") from the United States Department of
Labor, and
WHEREAS, Amendment No. 1 increased the Contract Funding $4,833,407 to
provide additional Software Services, and
WHEREAS, Amendment No 2 increased the Contract Funding $25,540,000 to
provide additional Software Services, and
WHEREAS, the State has received new grants from the United States
Department of Labor in an amount of $4,384,994 to continue procuring the
Software Services, and
WHEREAS, the State is desirous of amending the Contract to effectuate
an increase in the Contract Funding and to increase the billable hourly rates in
accordance with the terms of the Contract, and
WHEREAS, the Contractor has notified Labor that on June 13, 2002 it
completed the sale of substantially all of its assets used in connection with
Managed Web Hosting and Professional Services business, including the sale of
this contract, to ClearBlue Technologies Management, Inc. pursuant to an
assignment made pursuant to an order of the U.S. Bankruptcy Court for the
Southern District of New York dated June 11, 2002 (the "Bankruptcy Court Order")
as set forth in a letter dated July 31, 2002, a copy of which is annexed hereto
as Exhibit A and incorporated herein; and
WHEREAS, the ClearBlue Technologies Management, Inc. has requested that
Labor consent to assignment of the above mentioned contract to ClearBlue
Technologies Management, Inc. and agreed that it will assume all the
Contractor's contractual responsibilities; and
WHEREAS, Labor has no objection to assignment of the above mentioned
contract to ClearBlue Technologies Management, Inc.; and
WHEREAS, the parties wish to amend the agreement to identify the
Contractor named therein as ClearBlue Technologies Management, Inc. (hereinafter
"Assignee"); and
WHEREAS, the parties are ready, willing and able to enter into such an
amendment (hereinafter "Contract Amendment").
NOW THEREFORE, in consideration of the mutual undertakings and
covenants herein contained the parties agree as follows:
1. The Contract Funding is hereby increased to permit the
Department to spend an additional $4,384,994 for Software
Services in accordance with the rates and terms contained in
the Contract and
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the Scope of Services, attached hereto and hereby incorporated
by reference.
2. Pursuant to Article 4. Compensation and Payment Terms of the
Contract, the hourly billable rates shall be increased in
accordance with the Consumer Price Index for Syracuse, as set
forth in Exhibit B, a copy of which is annexed hereto and
incorporated herein.
3. Effective June 13, 2002, the contract is assigned to Assignor
and Contractor named therein is hereby changed from Applied
Theory Corporation, Inc. to Clear Blue Technologies
Management, Inc., with an address of 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, X.X. 00000
4. ClearBlue Technologies Management, Inc.'s agrees to the
assumption and performance of all duties, liabilities and
obligations under the aforesaid contract subject to the
express condition that it shall not operate to discharge any
claims, demands or causes of action which Labor heretofore
had, has or hereafter may have with Applied Theory under
Contact except as provided in the bankruptcy order.
5. This Agreement shall be deemed executory only to the extent of
money available to the State for the performance of the terms
hereof and no liability on account thereof shall be incurred
by the State of New York beyond moneys available for purpose
thereof.
6. This Agreement shall be governed by the laws of the State of
New York.
7. Appendix A, standard clauses for New York State contracts,
attached hereto, is hereby expressly made a part of this
Agreement as fully as if set forth at length herein.
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8. In all respects not inconsistent with this Contract Amendment,
the terms of the Contract as originally entered into shall
remain in full force and effect and binding upon the parties
hereto.
9. This Contract Amendment and the Contract, constitute the
entire Agreement between the parties hereto and no statement,
promise, condition, understanding, inducement or
representation, oral or written, expressed or implied, which
is not contained herein shall be binding or valid and this
Agreement shall not be changed, modified or altered in any
manner except by an instrument in writing executed by both
parties hereto.
10. This Contract Amendment shall not be deemed executed, valid or
binding unless and until approved in writing by the Attorney
General and the State Comptroller.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONTRACT NUMBER C000857
Agency Certification
"In addition to the acceptance of
this contract, I also certify
that original copies of this
signature page will be attached
to all other exact copies of this
contract."
APPLIED THEORY THE PEOPLE OF THE STATE
CORPORATION OF NEW YORK
BY: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------- -----------------------------
TITLE: President & CEO TITLE: Principal Accountant (ES)
FEDERAL I.D. NO.:00-0000000 NYSDOL
CLEARBLUE TECHNOLOGIES APPROVED
MANAGEMENT, INC. DEPT. OF AUDIT & CONTROL
OCTOBER 25, 2002
By: /s/ Xxxx Xxxxxxxxx By: /s/ Illegible
------------------ -----------------------------
TITLE: President For The State Comptroller
FEDERAL I.D. NO.: 00-0000000
APPROVED AS TO FORM APPROVED
XXXXX XXXXXXX H. XXXX XXXXXX
ATTORNEY GENERAL STATE COMPTROLLER
September 5, 2002
