EXHIBIT 99.5
THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment") is
entered into as of September 5, 2001, by and between SYLVAN LEARNING SYSTEMS,
INC., a Maryland corporation ("Buyer"), and CALIBER LEARNING NETWORK, INC., a
Maryland corporation ("Seller").
WHEREAS, Buyer and Seller are parties to that certain Asset Purchase
Agreement dated as of August 13, 2001 (the "Asset Purchase Agreement"), as
amended by that certain Amendment to Asset Purchase Agreement, dated as of
August 23, 2001, and that certain Second Amendment to Asset Purchase Agreement,
dated as of September 4, 2001, pursuant to which Seller has agreed to sell to
Buyer, and Buyer has agreed to purchase, the "Purchased Assets" (as defined
therein; all capitalized terms used herein shall have the respective meanings
set forth in the Asset Purchase Agreement), on the terms and subject to the
conditions set forth therein;
WHEREAS, Section 6.9 of the Asset Purchase Agreement, as amended, currently
provides that Buyer's obligation to purchase the Purchased Assets is subject to
Buyer's satisfactory completion of its Due Diligence Review, and that Buyer will
be deemed to have irrevocably waived such condition unless Buyer gives written
notice to Seller that the Due Diligence Review is not satisfactory to Buyer at
or before 11:59 p.m. on September 5, 2001; and
WHEREAS, Buyer has been diligently conducting the Due Diligence Review, and
Seller and Buyer have agreed that Buyer needs additional time to finish such
review, and consequently, Buyer and Seller have agreed to execute this
Amendment.
NOW THEREFORE, in consideration of the foregoing recitals, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. AMENDMENT TO ASSET PURCHASE AGREEMENT. Te Asset Purchase Agreement, as
previously amended, is hereby further amended as follows:
(a) By deleting each of the references to "September 5, 2001" in
Sections 5.3 and 6.9 thereof, as amended, and substituting, in lieu thereof,
"September 6, 2001";
(b) By deleting the reference to "September 6, 2001" in Section
10.1(c)(iii) thereof, as amended, and substituting, in lieu thereof, "September
7, 2001"; and
(c) By deleting the reference to "September 6, 2001" in Schedule 2.1(d)
thereof, as amended, and substituting, in lieu thereof, "September 7, 2001."
2. CONTINUED EFFECT. The Asset Purchase Agreement, as amended by this
Amendment, shall continue in full force and effect in accordance with its terms.
3. MISCELLANEOUS. This Amendment shall be binding upon, and shall inure to
the benefit of, each of the parties hereto, and their respective successors and
assigns. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
WITNESS/ATTEST: SYLVAN LEARNING SYSTEMS, INC.
By: /s/ XXXX X. XXXXXXX (SEAL)
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Name: Xxxx X. Xxxxxxx
Title: Vice President, Corporate
Finance, Interim Chief
Financial Officer
CALIBER LEARNING NETWORK, INC.,
as debtor in possession
By: /s/ XXXX X. XXXXXX (SEAL)
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Name: Xxxx X. Xxxxxx
Title: President, Chief Financial
Officer
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