EXHIBIT 10.97
AMENDMENT TO ASSET PURCHASE AGREEMENT
This AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment") is
entered into as of December 3, 2001 by and among CoreExpress, Inc., a Delaware
corporation ("CoreExpress"), and Xxxxxxxx Communications, LLC, a Delaware
limited liability company ("Purchaser").
RECITALS:
WHEREAS, reference is hereby made to that certain Asset
Purchase Agreement dated as of October 31, 2001 among CoreExpress and Purchaser
(the "Purchase Agreement"; capitalized terms used and not defined herein shall
have the meanings assigned to them in the Purchase Agreement, as amended
hereby); and
WHEREAS, CoreExpress and Purchaser have agreed to enter into
an amendment to the Purchase Agreement upon the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1 Amendment to Section 1.4. Section 1.4 of the Purchase Agreement is hereby
amended by deleting the amount "Nineteen Million Five Hundred Thousand Dollars
($19,500,000)" which appears in the first sentence thereof and inserting the
amount "Eighteen Million Six Hundred Fifty-Nine Thousand Eighty-Four Dollars
($18,659,084)" in its place.
2. Amendment to Section 2.15. The Purchase Agreement is hereby
amended by adding the following as Section 2.15:
Section 2.15 Sycamore Equipment. Exhibit A to
Schedule 1.3 contains, in all material respects, a complete
list of the equipment manufactured and/or sold by Sycamore
Networks, Inc. to CoreExpress.
3. Amendment to Schedule 1.3. Schedule 1.3 to the Purchase
Agreement (Certain Excluded Capital Assets) is hereby amended by adding the
following as Item 12 in Section V of such Schedule:
12. Sycamore Networks, Inc. - All rights and assets
related to:
a. Purchase and License Agreement (Dated
October 26, 2000) Amendment (Dated
October 27, 2000)
b. Master Lease Agreement and Amendment
(Included in Exhibit D of the Purchase
and License Agreement)
c. Statement of Work
d. Evaluation/Demonstration Agreement;
including, but not limited to, the
equipment set forth on Exhibit A
attached hereto.
3. Miscellaneous.
3.1 Effect; Ratification. The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to be a consent to any
amendment, waiver or modification of any other term or condition of the
Purchase Agreement. Each reference in the Purchase Agreement to "this
Agreement", "herein", "hereof" and words of like import shall mean the
Purchase Agreement as amended hereby. This Amendment shall be construed
in connection with and as part of the Purchase Agreement and all terms,
conditions, representations, warranties, covenants and agreements set
forth in the Purchase Agreement, except as herein amended or waived,
are hereby ratified and confirmed and shall remain in full force and
effect.
3.2 Counterparts. This Amendment may be executed in any number
of counterparts, each such counterpart constituting an original but all
together one and the same instrument.
3.3 Severability. In case any provision in or obligation under
this Amendment shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired
thereby.
3.4 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
COREEXPRESS, INC.
By /s/ XXXXX X. XXXXXXX
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Title: President
XXXXXXXX COMMUNICATIONS, LLC
By /s/ XXXXX X. XXXXXX
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Title: Vice President
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