ORIGINAL
XXX XXXXXXXXXXX No. 11954
EMC^2
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT (hereinafter called the "Master Agreement") is
entered into by and between XXX Xxxxxxxxxxx, a Massachusetts corporation
(hereinafter called "Lessor"), having its principal place of business at 000
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and Xxxx.xxx, Inc. (hereinafter called
"Lessee"), having a principal place of business at 00 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx, XX 00000
I. THE LEASE
1.1 Lease of Equipment. In accordance with the terms and conditions of this
Master Agreement, Lessor agrees to lease to Lessee, and Lessee agrees to
lease from Lessor, the units of personal property (hereinafter
individually called a "Unit" and collectively called "Equipment")
described in supplement(s) which are executed pursuant to and incorporate
the terms of this Master Agreement (each hereinafter, a "Supplement").
Each Supplement shall constitute a separate, distinct, and independent
lease and contractual obligation of Lessee. The term "Lease" as used
hereinafter shall refer to an individual Supplement which incorporates the
terms of this Master Agreement. Lessor or its assignee shall retain the
full legal title to the Equipment, it being expressly agreed by both
parties that this Master Agreement and each Lease shall constitute an
agreement of lease only. Each Lease shall be binding upon Lessor and
Lessee from the date of acceptance and execution of the applicable
Supplement, by Lessor at its headquarters.
1.2 Term of Lease. The original term of lease for each Unit (hereinafter the
"Original Term") shall commence on the date specified in the applicable
Supplement and, subject to Section 2.5 below, shall terminate as specified
in such Supplement. No Lease may be canceled by Lessee for any reason
whatsoever.
1.3 Disclaimers; Warranties. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR MAKES
NO EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO LESSEE'S USE
OR OPERATION OF THE EQUIPMENT. LESSOR EXPRESSLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR THE
EQUIPMENT OR OTHER PRODUCTS, DOCUMENTATION AND SERVICES PROVIDED HEREIN.
IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR ASSOCIATED WITH THE EQUIPMENT
OR THE LEASE THEREOF EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
1.4 Rental Payments. Lessee shall pay rental to Lessor for the Unit(s) in the
amounts and on the dates specified in the applicable Supplement. If any
rental or other amount due hereunder is not paid within five (1.5) of the
due date thereof, Lessee shall pay to Lessor on demand, as additional
rental, interest thereon from the due date until payment at a rate equal
to the lesser of (i) eighteen (18%) per annum, or (ii) the maximum rate
permitted by law. All rental and other amounts payable by Lessee to Lessor
hereunder shall be paid to Lessor at the address specified above, or at
such other place as Lessor may designate in writing to Lessee. Time is of
the essence with respect to all of Lessee's obligations under any Lease.
1.5 Return of Equipment. Upon expiration of the Original Term, Lessee will
immediately return the Equipment to Lessor as provided in Section 2.3
below. Should Lessee not return the Equipment at the end of the Original
Term, the Equipment shall continue to be held and leased hereunder, and
the Lease shall thereupon be extended for successive three (3) month
terms, at the same monthly rental, subject to the right of either Lessee
or the Lessor to terminate the Lease upon ninety (90) days written notice,
whereupon the Lessee shall forthwith deliver the Equipment to the Lessor.
If Lessee fails to return the Equipment upon demand therefor by Lessor,
Lessee shall pay Lessor, as the reasonable measure of Lessor's damages,
the value, at replacement cost, of the Equipment so converted.
II. COVENANTS OF LESSEE
2.1 Payment of Rental and Other Monies. Each lease is a net lease and Lessee
acknowledges and agrees that Lessee's obligation to pay all rental and
other sums payable hereunder, and the rights of Lessor in and to such
payments, shall be absolute and unconditional and shall not be subject to
any abatement, reduction, setoff, counterclaim or other defense for any
reason whatsoever. It being the intent of Lessor, and an inducement to
Lessor, to enter into the Lease, to claim all available tax benefits of
ownership with respect to the Equipment, Lessee acknowledges and agrees
that (i) no right, title or interest in the Equipment has been or is
intended to be passed to Lessee, other than the right to maintain
possession and use of the Equipment for the Original Term, conditioned on
Lessee's performance of the terms and conditions of the Lease, (ii) Lessee
has not taken and will not at any time during the Original Term take any
action which shall cause Lessor to lose any tax benefits of ownership, and
(iii) the Stipulated Loss Values (defined in the applicable Lease) agreed
to under this Lease are intended to provide recovery by Lessor of such
lost tax benefits of ownership.
2.1.1 Acceptance of Equipment. Lessee's acceptance of the Equipment shall be
conclusively and irrevocably evidenced by Lessee executing the Certificate
of Delivery and Acceptance and upon acceptance the Lease of such Equipment
shall be noncancellable for the Original Term unless otherwise agreed to
in writing by Lessor.
2.2 Use of Equipment. Lessee shall use the Equipment solely in the conduct of
its business, in a manner and for the use contemplated by the manufacturer
thereof, and in compliance with all laws, rules and regulations of every
governmental authority having jurisdiction over the Equipment and with the
provisions of all policies of insurance carried by Lessee pursuant to
Section 2.6 below; provided, however, Lessee shall have the right to allow
third parties, under Lessee's supervision, to use the Equipment, so long
as Lessee shall retain uninterrupted possession and control of the
Equipment. Lessee shall pay all costs, expenses, fees and charges incurred
in connection with the use and operation of the Equipment.
2.3 Delivery, Installation, Maintenance and Repair. Lessee shall be solely
responsible, at its own expense, for the delivery of the Equipment to
Lessee, the packing, rigging and delivery of the Equipment back to Lessor
upon expiration of the Original Term in good repair, condition, and
working order, ordinary wear and tear excepted, at the location(s) within
the continental United States specified by Lessor. Lessee is also solely
responsible for the installation, de-installation, maintenance and repair
of the Equipment. Lessee shall, at its expense, (a) keep the Equipment in
good repair, condition and working order, ordinary wear and tear excepted,
and (b) at the expiration of the Original Term or any renewal term have
the Equipment inspected and certified as acceptable for maintenance
service by the manufacturer. Lessor shall be entitled to inspect the
Equipment at Lessee's location at reasonable times.
2.4 Taxes. Lessee agrees to pay, and to indemnify and hold Lessor harmless
from, all license fees, assessments, and sales, use, property, excise and
other taxes and charges ("Imposts") (other than those measured by Lessor's
net income) now or hereafter imposed by any governmental body or agency
upon or with respect to (a) the Equipment or the possession, ownership,
use or operation thereof or (b) this Master Agreement, any Lease, or the
consummation of the transactions herein contemplated. All required
personal property tax returns relating to the Equipment shall be filed by
Lessee unless otherwise provided in writing. Lessee shall reimburse Lessor
promptly upon demand for the amount of any Imposts remitted by Lessor
which are required hereunder to be borne by Lessee.
2.5 Loss of Equipment. Lessee shall bear the entire risk of the Equipment
being lost, destroyed or otherwise rendered permanently unfit or
unavailable for use from any cause whatsoever (hereinafter called an
"Event of Loss") after its delivery to Lessee. If an Event of Loss shall
occur with respect to any Unit, Lessee shall promptly and fully notify
Lessor thereof. On the rental payment date following such notice Lessee
shall pay to Lessor an amount equal to the rental payment or payments due
and payable for such Unit on such date plus a sum equal to the Stipulated
Loss Value (as defined in the applicable Supplement) of such Unit as of
the date of such payment set forth in such Supplement. Upon the making of
such payment by Lessee regarding any Unit, the rental obligation for such
Unit shall cease, the Lease as to such Unit shall terminate and (except in
the case of loss, theft or complete destruction) Lessor shall be entitled
to recover possession of such Unit at Lessee's expense in accordance with
the provisions of Section 2.3 above. Provided that Lessor has received the
Stipulated Loss Value for any Unit, Lessee shall be entitled to the
proceeds or any recovery in respect of such Unit from insurance or
otherwise.
2.6 Insurance. Lessee shall obtain and maintain for the entire term of the
Lease, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including, without
limitation, loss by fire (including so-called extended coverage), theft
and such other risks of loss as are required on the type of Equipment
leased hereunder and by businesses in which Lessee is engaged in such
amounts in such form and with such insurers as shall be satisfactory to
Lessor, provided however, that such insurance for loss or damage of any
Unit shall always be at a minimum, the amount of the Stipulated Loss Value
of such Unit. Each insurance policy will name Lessee as insured and Lessor
as an additional insured and loss payee thereof as Lessor's interests may
appear and shall provide that it may not be canceled or altered without at
least 30 days prior written notice to Lessor or its successors and
assigns. Lessee shall provide to Lessor a certificate of insurance as
evidence of insurance coverage prior to delivery of any Unit.
2.7 Indemnity. Lessee shall and does hereby indemnify Lessor and its
successors and assigns against, and hold Lessor and its successors and
assigns harmless from, any and all claims, demands, actions and suits,
proceedings, costs, expenses, damages and liabilities, including
reasonable attorneys' fees, hereinafter ("Claims"), arising out of,
connected with or resulting from this Master Agreement, any Lease, or the
Equipment, including, without limitation, the selection, ownership,
control, maintenance, lease, purchase, delivery, possession, condition,
use, operation, or return of the Equipment. Lessee shall give Lessor
immediate notice of any Claim and Lessee shall satisfy, pay and discharge
any and all judgments and fines that may be recovered against Lessor in
connection with any such Claim. Lessor shall give Lessee written notice of
any such Claim of which Lessor has knowledge. Except to the extent arising
out of Lessor's negligence, bad faith or willful misconduct.
2.8 Possession; Assignment; Pledge. Without the prior written consent of
Lessor, which such consent as it pertains to subsections (a) and (d),
shall not be unreasonably withheld or delayed, Lessee shall not (a)
sublease the Equipment, or any part thereof, provided, that Lessee may,
without the prior written consent of Lessor, permit any parent or
subsidiary of Lessee to use the Equipment, or any part thereof, in the
ordinary course of its business, (b) assign, this Master Agreement or any
Lease or its interest hereunder or thereafter, (c) create or incur any
lien or encumbrance with respect to the Equipment, or any part thereof,
(d) move the Equipment, or any part thereof, or permit any of the
Equipment to be moved from the location at which it is first installed, or
(e) permit the Equipment, or any part thereof, to be removed outside the
continental limits of the United States.
2.9 Identification. At any time during the term of a Lease, Lessor may require
Lessee to legibly xxxx each Unit subject to such Lease in a reasonably
prominent location with a label, disc or other marking stating that the
Equipment is owned by Lessor.
2.10 Alterations or Modifications. Lessee shall not make any alterations of or
additions to the Equipment without the prior written consent of Lessor. At
any time during the Original Term, of any Lease there may be added to
such Lease additional Units of the same type as are rented thereunder for
a term equal to the remaining Original Term and, subject to the terms and
conditions hereof, at the rental rates applicable to such Equipment and
term in effect at the time the order is placed, provided that the order is
in writing and accepted by Lessor. Such acceptance shall be at the sole
discretion of Lessor. All additions, attachments or accessories to or
improvements of the Equipment shall immediately belong to and become
property of the Lessor unless, at the request of Lessor, such additions,
attachments or accessories to or improvements of the Equipment are removed
prior to the return of said Equipment by Lessee. Lessee shall be
responsible for the costs of such removal and shall restore the Equipment
to the same operating condition as when it became subject to the Lease.
2.11 Equipment to be Personal Property. Lessee agrees that the Equipment shall
be and remain personal property notwithstanding the manner in which it may
be attached or affixed to realty, and Lessee shall do all acts and enter
into all agreements necessary to ensure that the Equipment remains
personal property.
2.12 Financial Statements. Lessee shall promptly furnish, or cause to be
furnished, to Lessor such financial or other statements respecting the
condition and operations of Lessee or respecting the Equipment as Lessor
may from time to time reasonably request.
2.13 Lessee Representations. Lessee hereby represents, warrants and covenants
that with respect to this Master Agreement and each Lease entered into
hereunder:
(a) The execution, delivery and performance thereof by the Lessee have
been duly authorized by all necessary corporate action;
(b) The individual executing such was duly authorized to do so;
(c) This Master Agreement and each Lease constitute the legal, valid and
binding obligations of the Lessee enforceable in accordance with
their respective terms.
III. DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any of the following shall constitute
an Event of Default hereunder: (a) Lessee shall fail to pay on the due
date any rental or other payment due under any lease and such failure
shall not be cured within 10 days after notice thereof from Lessor to
Lessee, (b) any provision of this Master Agreement or any Lease or any
provision in any document provided by Lessee for this Master Agreement or
any Lease, or in any document furnished pursuant to the provisions hereof
or otherwise, shall prove to have been false or misleading in any material
respect as of the date when it was made, (c) Lessee shall fail to perform
any provision, covenant, condition or agreement made by it under this
Master Agreement or Lease, and such failure shall continue for twenty (20)
days after notice thereof from Lessor to Lessee or (d) bankruptcy,
receivership, insolvency, reorganization, dissolution, liquidation, or
other similar proceedings shall be instituted by or against Lessee or all
or any part of its property under the Federal Bankruptcy Code or other law
of the United States or of any state law, and if against Lessee it shall
consent thereto or shall fail to cause the same to be discharged within
twenty (20) days, or (e) Lessee shall default under any agreement with
respect to the purchase or installation of the Equipment, or (f) if Lessee
or any guarantor of Lessee's obligations hereunder shall default under any
other agreement with Lessor.
3.2 Remedies. If an Event of Default hereunder shall occur and be continuing,
Lessor may exercise any one or more of the following remedies: (a)
immediately terminate this Master Agreement and any or all Leases and
Lessee's rights hereunder and thereunder, (b) proceed, by appropriate
court action or actions either at law or in equity, to enforce performance
by Lessee of the applicable covenants of the Lease or to recover damages
for the breach thereof, (c) by notice in writing to Lessee, recover all
amounts due on or before the date of the event of default, plus, as
liquidated damages for loss of a bargain and not as a penalty, accelerate,
and declare to be immediately due and payable all rentals and other sums
payable under any or all such Leases, without any presentment, demand,
protest or further notice (all of which hereby are expressly waived by
Lessee), whereupon the same shall be and become immediately due and
payable, and (d) personally, or by its agents take immediate possession of
the Equipment, or any part thereof, from Lessee and for such purpose,
enter upon Lessee's premises where any of the Equipment is located with or
without notice or process of law and free from all claims by Lessee. The
exercise of any of the foregoing remedies by Lessor shall not constitute a
termination of any Lease unless Lessor so notifies Lessee in writing. Upon
such an acceleration and declaration or other exercise of remedy, if
Lessee shall pay all amounts payable hereunder through the expiration of
the term and shall cure any and all defaults, Lessee shall be entitled to
keep the equipment installed through the expiration of the term on the
terms and conditions set forth herein.
3.3 Disposition of Equipment. In the event Lessor repossesses Equipment,
Lessor may (a) lease the Equipment, or any portion thereof, in such a
manner, for such time and upon such term(s) as Lessor may determine or (b)
sell the Equipment, or any portion thereof, at one or more public or
private sales, in such manner, and at such times and upon such terms as
Lessor may determine. In the event that Lessor leases any such Units, any
rentals received by Lessor for the Remaining Lease Term(s) (the period
ending on the date when the Original Term for the Unit(s) would have
expired if an Event of Default had not occurred) for such Units shall be
applied to the payment of (i) all costs and expenses (including attorneys'
fees) incurred by Lessor in retaking possession of, and removing, storing,
repairing, refurbishing and leasing such Units, and (ii) the rentals for
the remainder of the Original Term and all other sums, including past due
rentals, remaining unpaid under the Lease. The balance of such rentals, if
any, shall be applied first to reimburse Lessee for any sums previously
paid by Lessee as liquidated damages, and any remaining amounts shall be
retained by Lessor. All rentals received by Lessor for the period
commencing after the expiration of the Remaining Lease Term(s) shall be
retained by Lessor. Lessee shall remain liable to Lessor to the extent
that the aggregate amount of the sums referred to in clauses (i) and (ii)
above shall exceed the aggregate rentals received by Lessor under such
leases for the respective Remaining Lease Term(s) applicable to the Units
covered by such leases. In the event that Lessor shall sell or otherwise
dispose of (other than pursuant to a lease) any such Unit, the proceeds
thereof shall be applied to the payment of (i) all costs and expenses
(including reasonable attorneys' fees) incurred by Lessor in retaking
possession of, and removing, storing, repairing, refurbishing and selling
or otherwise disposing of such Unit(s), (ii) the rentals that either did
or would have accrued under the Lease but are unpaid up to the time of
such sale or other disposition, (iii) any and all other sums (other than
rentals) then owing to Lessor by Lessee under, and (iv) the Stipulated
Loss Value of such Unit(s) determined as of the date of such sales or
other disposition in accordance with the schedule set forth in the Lease
for such Unit(s). The balance of such proceeds, if any, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages, and any remaining amounts shall be retained by Lessor.
Lessee shall remain liable to Lessor to the extent that the aggregate
amount of the sums referred to in clauses (i) through (iv) above shall
exceed the aggregate proceeds received by Lessor in connection with the
sale or disposition of the Equipment (other than pursuant to a lease).
4.1 Performance of Lessee's Obligations. Upon Lessee's failure to pay any sum
or perform any obligation hereunder when due, Lessor shall have the
option, but shall in no case be obligated, to pay such sum or perform such
obligation, whereupon such sum or the cost of such performance shall
immediately become due and payable as additional rent from Lessee to
Lessor with interest at the highest legal rate from the date payment or
performance was due.
4.2 Assignment. No right, obligation or interest of Lessee with respect to
this Master Agreement, any Lease or Equipment shall, without the prior
written consent of Lessor, be assignable by Lessee and any such purported
assignment shall be null and void. Lessor may, at anytime, without the
consent of Lessee, assign the Master Agreement and any Lease or any
interest herein or therein to any party. In the event of any assignment of
Lessor, the assignee shall have all of Lessor's rights hereunder, but none
of its obligations, and upon receipt by Lessee of written notice of any
such assignment, Lessee shall make all payments thereafter becoming due
under any assigned Lease to such assignee without regard to any set-off,
defense or counter claim that Lessee may have against Lessor.
4.3 Quiet Enjoyment. So long as Lessee shall not be in default hereunder and
Lessor continues to receive all rent and other sums payable by Lessee
hereunder in accordance with the terms hereof, neither Lessor nor its
assignee, shall interfere with Lessee's right of quiet enjoyment and use
of the Equipment.
4.4 Further Assurances. Lessee agrees that at any time, and from time to time,
after the execution and delivery of this Lease, it shall, upon the request
of Lessor, execute and deliver such further documents and do such further
acts and things as Lessor may reasonably request in order fully to effect
the purposes of this Lease including without limitation, the filing of
financial and confirmation statements. Lessee authorizes Lessor to file a
financing statement or any confirmation statements signed only by Lessor
in accordance with the Uniform Commercial Code or signed by Lessor as
Lessee's attorney in fact.
4.5 Rights, Remedies, Powers. Each and every right, remedy and power granted
to Lessor hereunder shall be cumulative and in addition to any other
right, remedy or power herein specifically granted or now or hereafter
existing in equity, at law, by virtue of statute or otherwise, and may be
exercised by Lessor from time to time concurrently or independently and as
often and in such order as Lessor may deem expedient. And any failure or
delay on the part of Lessor in exercising any such right, remedy or power,
or abandonment or discontinuance of steps to enforce the same, shall not
operate as a waiver thereof or affect Lessor's right thereafter to
exercise the same, and any single or partial exercise of any such right,
remedy or power shall not preclude any other or further exercise thereof
or the exercise of any other right, remedy or power.
4.6 Notices. Any notice, request, demand, consent, approval or other
communication provided or permitted hereunder shall be in writing and
shall be conclusively deemed to have been received by a party hereto on
the day it is delivered to such party at its address set forth above (or
at such other address as such party shall specify to the other party in
writing), or if sent by registered or certified mall, return receipt
requested, on the third business day after the day on which mailed,
addressed to such party at such address.
4.7 Section Headings. Section headings are inserted for convenience only and
shall not affect any construction or interpretation of any Lease.
4.8 Binding Effect. Each Lease, subject to the provisions of Sections 2.8 and
4.3 hereof, shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the Lessee and Lessor.
4.9 Governing Law. Each Lease shall be governed in all respects by the laws of
the Commonwealth of Massachusetts.
4.10 Entire Lease. Each Lease, consisting of the terms and conditions of this
Master Agreement, a Supplement, and any Amendments, Schedules or Riders to
either of them, constitutes the entire agreement between Lesser and
Lessee. No waiver, consent, modification or change of terms of this Lease
shall bind either party unless in writing signed by both parties, and then
such waiver, consent, modification or change shall be effective only in
the specific instance and for the specific purpose given. There are no
understandings, agreements, representations or warranties, express or
implied, not specified therein regarding any Lease or the Equipment leased
thereunder. Any terms and conditions of any purchase order or other
document (with the exception of Supplements) submitted by Lessee in
connection with any Lease which are in addition to or inconsistent with
the terms and conditions of such Lease will not be binding on Lessor and
will not apply to the Lease. LESSEE BY THE SIGNATURE BELOW OF ITS
AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT IT HAS READ THIS MASTER
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS WITH RESPECT TO ANY LEASE ENTERED INTO HEREUNDER.
LEASE ACCEPTED BY:
XXX XXXXXXXXXXX, (Lessor) Xxxx.xxx, Inc. (Lessee)
BY: BY: /s/ Xxxxx X. XxXxxxxxx
----------------------------- -----------------------------
TITLE: TITLE: EVP & CFO
-------------------------- --------------------------
Addendum One
to
Master Lease Agreement No. 11954
between
Xxxx.xxx, Inc. and XXX Xxxxxxxxxxx
5.1 Option To Extend. Provided that no Event of Default exists under the Lease,
Lessee shall have the option to renew or extend the Lease of any or all of the
Equipment at the end of the Initial Term or any extension thereof ("Extended
Term") for an Extended Term of one year, two years or three years. The Monthly
Rental during any Extended Term shall be the Fair Market Value rental for the
Equipment at the commencement of any Extended Term for the term chosen. Such
option may be exercised by Lessee by giving written notice to Lessor not less
than sixty (60) days prior to the expiration of the Initial Term or any Extended
Term then in effect.
5.2 Option to Purchase. Provided that no Event of Default exists under the
Lease, the Lessee shall have the option to purchase any or all of the Equipment
at the expiration of the Initial Term or any Extended Term for a purchase price
equal to the Fair Market Value of the Equipment at such point in time. Such
option may be exercised by Lessee by giving written notice to the Lessor not
less than sixty (60) days prior to the expiration of the Initial Lease Term or
any Extended Term then in effect. On the expiration date of the Initial Term or
any Extended Term, if Lessee has elected to purchase the Equipment, Lessee shall
purchase from Lessor, and Lessor shall sell to Lessee the Equipment on an AS IS,
WHERE IS, BASIS except that Lessor shall warrant title and that the equipment is
free and clear of all liens and encumbrances arising by or through the Lessor,
except for taxes or other impositions for which Lessee is obligated to pay under
the Lease or conversion to Purchase. Lessor shall provide Lessee with a Xxxx of
Sale following the payment in full. Monthly lease payments shall continue to
accrue at the then current lease rate until the full Purchase Price plus any and
all tax is paid to Lessor.
5.3 Fair Market Value. Fair Market Value shall be determined on the basis of and
shall mean the amount which would be obtainable and paid in an arms length
transaction between an informed and willing buyer or lessee, as the case may be,
(other than lessee currently in possession) and an informed and willing seller
or lessor. If Lessor and Lessee can not agree upon the Fair Market Value for the
Equipment, the Fair Market Value shall be determined in accordance with the
following: Lessor and Lessee shall each obtain an appraisal of the Equipment
from an independent appraiser selected by each party. The average of such two
(2) appraisals shall be the Fair Market Value for the Equipment. Notwithstanding
the foregoing, if the two (2) appraisals vary in value by more than fifteen
percent (15%), than the two (2) appraisers selected by Lessor and Lessee shall
select a third independent appraiser who will provide an appraisal of the
Equipment. The results of the appraisal of the third independent appraiser shall
be the Fair Market Value of the Equipment. The expense of such appraisals shall
be borne equally by Lessor and Lessee.
5.4 Prepayment. Provided that no Event of Default exists under the Lease, Lessee
may prepay the remaining lease payments owed and outstanding under the lease
discounted by 5%. At such time as this has been done, Lessee may exercise the
Option to Purchase in Paragraph 5.2 above.
XXX Xxxxxxxxxxx (Lessor) Xxxx.xxx, Inc. (Lessee)
/s/ Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
By By
Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
Name Name
EVP & CFO
-------------------------------- --------------------------------
Title Title
7/29/99
-------------------------------- --------------------------------
Date Date
XXX XXXXXXXXXXX Supplement No. 1
EMC^2
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11954 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
Equipment Description:
Original
Monthly Term Equipment
Item Qty. Equipment Rent (Mos.) Cost
---- ---- --------- ---- ------ ----
1. 1 3930-36 Symmetrix Frame Step Payments: 36 $2,599,280.00
2. 32 3030-36M2 Months 1 - 12 @ $72,667.00 Included
3. 8 3030-18M2 Months 13 - 24 @ $72,905.00 Included
4. 4 DP2-FCD2 Months 25 - 36 @ $95,621.00 Included
5. 2 DP2-USD4SW Included Included
6. 1 MEM2-8192 Included Included
7. 8 FC10M-50M Included Included
8. 1 SYMMGR-PKG Included Included
9. 1 PWRPATHENT Included Included
10. 1 TF-OPEN Included Included
11. 2 EC-1000 Included Included
12. 1 SP-1001 Included Included
13. 4 ED-1032-32S Included Included
14. 1 EM-1002 Included Included
15. 4 PM-1032 Included Included
16. 4 V-LOGIX-X9 Included Included
17. 56 FC30M-50M Included Included
18. 1 PS-LVL1-SYM Included Included
19. 1 PS-LVL1-TIME Included Included
20. 1 PS-LVL1-PWP
* The Anticipated Commencement Date is August 1, 1999.
* Includes 36 Months Hardware and Software Warranty.
Equipment Location: Exodus Communications, Internet Data Center,
Harborside Financial Center,
00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000-0000
Monthly Rent: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least sixty (60) days prior notice of its intent not to extend or renew
this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) XXXX.XXX, INC. (Lessee)
By: By: /s/ Xxxxx X. XxXxxxxxx
---------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx X. XxXxxxxxx EVP & CFO
------------------------------- -------------------------------
(Name/Title) (Name/Title)
7/29/99
------------------------------- -------------------------------
(Date) (Date)
(Continued on reverse)
Addendum One
to
Lease Supplement No. 1
to Master Lease Agreement No. 11954
between
Xxxx.xxx, Inc. and XXX Xxxxxxxxxxx
Provided no event of default has occurred and is continuing to occur, at the end
of the initial non-cancellable term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
1. Purchase the equipment as listed on the above referenced Supplement for:
a. The then Fair Market Value according to the terms and conditions of the
Master Lease plus and applicable taxes.
or
b. A Fixed Purchase Option of sixteen percent (16%) of the original
Equipment Cost as shown on the above referenced Supplement, plus any applicable
taxes.
Monthly renewal lease payments will be due and payable under the original lease
until payment in full is received by Lessor for either Option a or b above.
XXX Xxxxxxxxxxx (Lessor) Xxxx.xxx, Inc. (Lessee)
/s/ Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
By By
Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
Name Name
EVP & CFO
-------------------------------- --------------------------------
Title Title
7/29/99
-------------------------------- --------------------------------
Date Date
XXX XXXXXXXXXXX Supplement No. 2
EMC^2
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11954 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
Equipment Description:
Original
Monthly Term Equipment
Item Qty. Equipment Rent (Mos.) Cost
---- ---- --------- ---- ------ ----
1. 1 3930-36 Symmetrix Frame Step Payments: 36 $2,230,065.00
2. 32 3030-36M2 Months 1 - 12 @ $61,810.00 Included
3. 8 3030-18M2 Months 13 - 24 @ $62,089.00 Included
4. 4 DP2-FCD2 Months 25 - 36 @ $77,885.00 Included
5. 2 DP2-USD4SW Included Included
6. 1 MEM2-8192 Included Included
7. 8 FC10M-50M Included Included
8. 1 SYMMGR-PKG Included Included
9. 1 PWRPATHENT Included Included
10. 1 TF-OPEN Included Included
11. 2 CFS-14 Included Included
12. 12 CDM5-2E4 Included Included
13. 2 CCS3-E Included Included
14. 12 CF2-UNIX-LIC Included Included
15. 2 CFS-CSMGR-LIC Included Included
16. 24 C12MINI68S Included Included
17. 1 PS-LVL1-SYM Included Included
18. 1 PS-LVL1-TIME Included Included
19. 1 PS-LVL1-PWP Included Included
20. 2 PS-CFS-PM Included Included
* The Anticipated Commencement Date is August 1, 1999.
* Includes 36 Months Hardware and Software Warranty.
Equipment Location: Exodus Communications, Internet Data Center,
Harborside Financial Center,
00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000-0000
Monthly Rent: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least sixty (60) days prior notice of its intent not to extend or renew
this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) XXXX.XXX, INC. (Lessee)
By: By: /s/ Xxxxx X. XxXxxxxxx
---------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx X. XxXxxxxxx EVP & CFO
------------------------------- -------------------------------
(Name/Title) (Name/Title)
7/29/99
------------------------------- -------------------------------
(Date) (Date)
(Continued on reverse)
Addendum One
to
Lease Supplement No. 2
to Master Lease Agreement No. 11954
between
Xxxx.xxx, Inc. and XXX Xxxxxxxxxxx
Provided no event of default has occurred and is continuing to occur, at the end
of the initial non-cancellable term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
1. Purchase the equipment as listed on the above referenced Supplement for:
a. The then Fair Market Value according to the terms and conditions of the
Master Lease plus and applicable taxes.
or
b. A Fixed Purchase Option of sixteen percent (16%) of the original
Equipment Cost as shown on the above referenced Supplement, plus any applicable
taxes.
Monthly renewal lease payments will be due and payable under the original lease
until payment in full is received by Lessor for either Option a or b above.
XXX Xxxxxxxxxxx (Lessor) Xxxx.xxx, Inc. (Lessee)
/s/ Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
By By
Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
Name Name
EVP & CFO
-------------------------------- --------------------------------
Title Title
7/29/99
-------------------------------- --------------------------------
Date Date
XXX XXXXXXXXXXX Supplement No. 3
EMC^2
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11954 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
Equipment Description:
Original
Monthly Term Equipment
Item Qty. Equipment Rent (Mos.) Cost
---- ---- --------- ---- ------ ----
1. 1 3930-36 Symmetrix Frame Step Payments: 36 $2,001,215.00
2. 32 3030-36M2 Months 1 - 12 @ $56,388.00 Included
3. 8 3030-18M2 Months 13 - 24 @ $56,784.00 Included
4. 4 DP2-FCD2 Months 25 - 36 @ $70,910.00 Included
5. 2 DP2-USD4SW Included Included
6. 1 MEM2-8192 Included Included
7. 8 FC10M-50M Included Included
8. 1 SYMMGR-PKG Included Included
9. 1 PWRPATHENT Included Included
10. 1 TF-OPEN Included Included
11. 1 PS-LVL1-SYM Included Included
12. 1 PS-LVL1-TIME Included Included
13. 1 PS-LVL1-PWP Included Included
14. 3 EDE-TIER3 Included Included
15. 6 EFS-TIER1 Included Included
* The Anticipated Commencement Date is August 1, 1999.
* Includes 36 Months Hardware and Software Warranty.
Equipment Location: Exodus Communications, Internet Data Center,
Harborside Financial Center,
00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000-0000
Monthly Rent: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least sixty (60) days prior notice of its intent not to extend or renew
this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) XXXX.XXX, INC. (Lessee)
By: By: /s/ Xxxxx X. XxXxxxxxx
---------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
EVP & CFO
------------------------------- -------------------------------
(Name/Title) (Name/Title)
7/29/99
------------------------------- -------------------------------
(Date) (Date)
(Continued on reverse)
Addendum One
to
Lease Supplement No. 3
to Master Lease Agreement No. 11954
between
Xxxx.xxx, Inc. and XXX Xxxxxxxxxxx
Provided no event of default has occurred and is continuing to occur, at the end
of the initial non-cancellable term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
1. Purchase the equipment as listed on the above referenced Supplement for:
a. The then Fair Market Value according to the terms and conditions of the
Master Lease plus and applicable taxes.
or
b. A Fixed Purchase Option of sixteen percent (13%) of the original
Equipment Cost as shown on the above referenced Supplement, plus any applicable
taxes.
Monthly renewal lease payments will be due and payable under the original lease
until payment in full is received by Lessor for either Option a or b above.
XXX Xxxxxxxxxxx (Lessor) Xxxx.xxx, Inc. (Lessee)
/s/ Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
By By
Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
Name Name
EVP & CFO
-------------------------------- --------------------------------
Title Title
7/29/99
-------------------------------- --------------------------------
Date Date
XXX XXXXXXXXXXX Supplement No. 4
EMC^2
MASTER LEASE AGREEMENT SUPPLEMENT
This Supplement to Master Lease Agreement Number 11954 (hereinafter called the
"Master Agreement") between Lessor and the Lessee whose name appears below,
together with the Master Agreement, constitutes a lease of the Equipment
described below (hereinafter, collectively, this "Lease"). All the terms and
conditions of the Master Agreement apply to this Lease with the same force and
effect as if all said terms and conditions were fully set forth herein and said
terms and conditions are incorporated herein and made part hereof by reference.
All capitalized terms not defined in this Supplement shall have the meanings
given such terms in the Master Agreement. It is the intent of the parties that
this Supplement be separately enforceable as a complete and independent lease,
independent of all other Supplements to the Lease.
Equipment Description:
Original
Monthly Term Equipment
Item Qty. Equipment Rent (Mos.) Cost
---- ---- --------- ---- ------ ----
1. 1 3930-36 Symmetrix Frame Step Payments: 36 $1,552,596.00
2. 32 3030-36M2 Months 1 - 12 @ $41,638.00 Included
3. 8 3030-18M2 Months 13 - 24 @ $41,777.00 Included
4. 4 DP2-FCD2 Months 25 - 36 @ $55,903.00 Included
5. 2 DP2-USD4SW Included Included
6. 1 MEM2-8192 Included Included
7. 8 FC10M-50M Included Included
8. 1 SYMMGR-PKG Included Included
9. 1 PWRPATHENT Included Included
10. 1 TF-OPEN Included Included
11. 1 PS-LVL1-SYM Included Included
12. 1 PS-LVL1-TIME Included Included
13. 1 PS-LVL1-PWP Included Included
14. 1 LP-7000-E-N1 Included Included
15. 1 FC64-1063-EMC Included Included
* The Anticipated Commencement Date is August 1, 1999.
* Includes 36 Months Hardware and Software Warranty.
Equipment Location: Exodus Communications, Internet Data Center,
Harborside Financial Center,
00 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000-0000
Monthly Rent: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the same date of each succeeding month. The Lease Term for each Unit will
automatically extend for successive three (3) month periods after the expiration
of the original term in accordance with all the terms and conditions of this
Lease including the same monthly rent, until either party shall give the other
party at least sixty (60) days prior notice of its intent not to extend or renew
this Supplement.
SUPPLEMENT ACCEPTED BY:
XXX XXXXXXXXXXX (Lessor) XXXX.XXX, INC. (Lessee)
By: By: /s/ Xxxxx X. XxXxxxxxx
---------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx X. XxXxxxxxx EVP & CFO
------------------------------- -------------------------------
(Name/Title) (Name/Title)
7/29/99
------------------------------- -------------------------------
(Date) (Date)
(Continued on reverse)
Addendum One
to
Lease Supplement No. 4
to Master Lease Agreement No. 11954
between
Xxxx.xxx, Inc. and XXX Xxxxxxxxxxx
Provided no event of default has occurred and is continuing to occur, at the end
of the initial non-cancellable term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
1. Purchase the equipment as listed on the above referenced Supplement for:
a. The then Fair Market Value according to the terms and conditions of the
Master Lease plus and applicable taxes.
or
b. A Fixed Purchase Option of sixteen percent (14.5%) of the original
Equipment Cost as shown on the above referenced Supplement, plus any applicable
taxes.
Monthly renewal lease payments will be due and payable under the original lease
until payment in full is received by Lessor for either Option a or b above.
XXX Xxxxxxxxxxx (Lessor) Xxxx.xxx, Inc. (Lessee)
/s/ Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
By By
Xxxxx X. XxXxxxxxx
-------------------------------- --------------------------------
Name Name
EVP & CFO
-------------------------------- --------------------------------
Title Title
7/29/99
-------------------------------- --------------------------------
Date Date
EMC^2
The Enterprise Storage Company
XXX XXXXXXXXXXX
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") dated the __________ day of
________________________ 199____, is between XXX Xxxxxxxxxxx, identified herein
as "EMC", and Xxxx.xxx, Inc. identified herein as "Customer". The parties hereby
agree to the following terms and conditions:
1. DEFINITIONS
Acceptance. Acceptance for Software shall occur seven (7) days after shipment of
such Software by EMC.
Core Software: EMC microcode and firmware that enable a Designated EMC System to
perform its basic storage functions. Core Software does not include any
Enterprise Storage Software.
Designated EMC System: The storage system owned by Customer at the Designated
Site identified by the serial number set forth on the storage system cabinet,
Designated Site: Customer's facility where the Host CPU or Designated EMC System
is located.
Enterprise Storage Software: Software separately identified by EMC other than
Core Software and Maintenance Aids, which consists of:
I. Host-based Software: Software that is licensed for use on one or more
Host CPUs, as designated by EMC.
II. Symmetrix-based Software: Software that is licensed for use on the
Designated EMC System and, if applicable, one or more Host CPUs, as designated
by EMC.
Host CPU: A central processing unit designated by Customer for operation with
the Designated EMC System.
Maintenance Aids: Hardware, software and other aids used by EMC in furnishing
Maintenance Services.
Maintenance Services: Maintenance services for Core Software and Enterprise
Storage Software provided under this Agreement.
Software: Core Software, Enterprise Storage Software and any other software
licensed by EMC to Customer. Software does not include Maintenance Aids.
Software Release: New revisions by EMC consisting of:
I. Maintenance Release: A new revision of Software that includes
corrections, updates and minor modifications to existing features.
II. New Release: A new revision of Software that expands or extends
currently existing features, functions or capabilities,
III. New Version: A new revision of Software that includes substantial new
features, functions or capabilities.
2. SOFTWARE LICENSE
(1). EMC grants to Customer a non-exclusive, non-transferable license to use the
Software solely in conjunction with the Designated EMC System or Host CPU, as
applicable, for which the Software was licensed, provided Customer pays all
applicable one-time and annual usage fees in accordance with the provisions of
this Agreement
(2). Customer shall not, without EMC's prior written consent, provide, disclose
or otherwise make available Software in any form to any person other than
Customer's employees, independent contractors or consultants, who shall use the
Software solely for Customer's internal business purposes in a manner consistent
with this Agreement. Customer shall be fully responsible to EMC for the actions
of its employees, independent contractors and consultants.
(3). Customer may make one copy of the Software for back-up and archival
purposes for use only in the case of a malfunction of Software, EMC Designated
System or Host CPU, as applicable.
(4). Customer may, only after written notice to EMC, change the location of a
Designated EMC System or Host CPU upon which the licensed Software is used to a
replacement location. If Customer moves the Software to another Designated EMC
System or Host CPU which has a different model number than the originally
Designated EMC System or Host CPU, Customer agrees to pay. if applicable, an
upgrade fee based on EMC's then-current price and upgrade policy and, at the
next support anniversary date, agrees to pay applicable fees based upon the
replacement model number.
(5). If Customer is granted a license to use Software in conjunction with a
Statement of Work (a "Project License"), Customer shall have a non-transferable
right to use the Software only for the purpose of conducting a specific project
under such Statement of Work. The Project License term shall be for one (1) year
or the completion of the project, whichever occurs first.
(6). Customer shall not use the Software on any device other than the Designated
EMC System or Host CPU, as applicable, except that the Enterprise Storage
Software may be temporarily transferred to a replacement Designated EMC System
or Host CPU, as applicable (and deleted from the original Designated EMC System
or Host CPU) if the Designated EMC System or Host CPU is inoperable due to
malfunction or Initiation of a disaster recovery program or if the Designated
EMC System or Host CPU is otherwise not able to use the Enterprise Storage
Software.
(7). Ownership: No title to, or ownership of, the Software is transferred to
Customer, and any references to "sale" or "purchase", with respect to the
Software, shall be deemed to mean "license on the terms contained in this
Agreement." Customer shall reproduce and include EMC's copyright and other
proprietary notices on and in any copies, including but not limited to partial,
physical or electronic pies of the Software. Neither Customer nor any of its
agents, independent contractors or consultants shall modify, enhance.
supplement, create derivative works from, reverse assemble, reverse engineer,
reverse compile or otherwise reduce the Software to human readable form without
EMC's prior written consent. If Customer requires access to the source code of
the Software in order to achieve interoperability of the Software with other
software in the European Union or Norway, Customer shall provide EMC with
written notice. EMC can then decide either: (i) to perform the work in order to
achieve such interoperability and charge EMC's then-current rates for such work
to Customer; or (ii) to permit Customer to reverse engineer parts of the
Software in order to obtain such source code, but only to the extent necessary
to achieve such interoperability. Customer shall promptly report to EMC any
violation of this clause and shall take such further steps as may be reasonably
requested by EMC to remedy any such violation and to prevent future violations.
(8). Secondary Purchaser: Unless the business is transferred or merged,
Customer's right to use the Software may not be assigned, sublicensed or
otherwise transferred; provided however, that if Customer sells or transfers the
Designated EMC System, EMC shall offer to license the Core Software and to
render Equipment and Core Software Maintenance Services to any bona fide end
user (hereinafter "Secondary Purchaser") to whom Customer has transferred the
Designated EMC System pursuant to EMC's then-current standard terms and
conditions, so long as such Secondary Purchaser is not deemed, in EMC's
reasonable discretion, to be a competitor of EMC's. Whenever the Core Software
is licensed to a Secondary Purchaser in accordance with this Paragraph, EMC
shall offer to provide de-installation services for Customer and re-installation
and certification for Equipment and Core Software Maintenance Services for the
Secondary Purchaser at EMC's then-current applicable fees.
(9). Software Releases: EMC shall provide Software Releases as part of
Maintenance Services. A Software Release does not include new Software products.
A Software Release is treated as Software and is covered by the license to the
original Software.
(10). Maintenance Aids: Maintenance Aids (including diagnostic tools) for aiding
the provision of Maintenance Services are owned by EMC and provided at
Customer's site for use by EMC's personnel. Customer agrees to use its best
efforts to prevent the unauthorized use or disclosure of Maintenance Aids.
Customer will not allow copies to be made of any Maintenance Aids. Customer
further agrees to allow EMC, upon reasonable notice, to enter the Designated
Site(s) to remove Maintenance Aids. Nothing hereunder grants to Customer a
license to make use of Maintenance Aids in any way.
3. PATENTS AND COPYRIGHTS
(1). If Customer notifies EMC promptly in writing of any action (and all prior
related claims) brought against Customer alleging that Customer's use of any
Software or its receipt of any Service infringes a valid patent or copyright,
EMC will defend that action at its expense and will pay the costs and damages
awarded against Customer in the action, provided (i) that EMC shall have sole
control of the defense of any such action and all negotiations for its
settlement or compromise and (ii) Customer provides all reasonable assistance
requested by EMC. If a permanent injunction is obtained in such action against
Customer's use or receipt of such Software or if in EMC's opinion such Software
is likely to become the subject of a permanent injunction, EMC will at its
option and expense either procure for Customer the right to continue using or
receiving such Software, replace or modify such Software so that it becomes
non-infringing or pay Customer a refund based on a straight line depreciation of
the price of such Software over five (5) years upon return of the Software to
EMC or refund the unused amounts paid to EMC for discontinued Maintenance
Services, as the case may be.
(2). EMC shall have no liability to Customer if the alleged infringement is
based on (i) use, sale or receipt of any of the Software in combination with
other equipment, software or services not sold to Customer by EMC; (ii) use of
any of the Software in a manner or for a purpose for which they were not
designed; (iii) use of the Software, when use of a Software Release which EMC
has made commercially available would have avoided such infringement; (iv) any
modification to any of the Software not made by EMC,
1
or any modifications to any of the Software made by EMC pursuant to Customers
specific instructions; or (v) any intellectual property right owned or licensed
by Customer or any of its Affiliates
(3) THIS PATENTS AND COPYRIGHTS SECTION STATES EMC'S ENTIRE LIABILITY WITH
RESPECT TO ANY ALLEGED INFRINGEMENTS OF PATENTS, COPYRIGHTS AND OTHER
INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART OF THEM OR BY THEIR
OPERATION, USE OR RECEIPT.
4. WARRANTY
(1). Warranty for Software
(a). EMC warrants that the Core Software shall be free from material defects in
materials and workmanship and that the Core Software shall perform substantially
in accordance with EMC's written specifications for such Core Software for two
(2) years from Acceptance, under normal use and regular recommended service.
(b) EMC warrants that the Enterprise Storage Software shall, under normal use.
perform substantially in accordance with EMC's written specifications for such
Enterprise Storage Software. The warranty period for Enterprise Storage Software
shall be for a period of ninety (90) days from Acceptance.
(c). EMC's entire liability and Customers exclusive remedy under the above two
warranties described in the two preceding paragraphs shall be for EMC to use
reasonable efforts to remedy material defects covered by these warranties within
a reasonable period of time or, at EMC's option, either to replace the
non-conforming Software or to refund the amount paid by Customer for such
Software, as depreciated on a straight line basis over a five (5) year period
upon return of such Software to EMC. EMC does not warrant that the operation of
the Software will be uninterrupted or error free, or that all Software defects
can be corrected. Customer shall return the replaced Software to EMC upon EMC's
request.
(2). The warranties described above do not include efforts to remedy, repair or
replace as a result of: (i) accident or neglect; (ii) problems relating to or
residing in other hardware, software or services with which the Software is
used; (iii) installation of the Software not in accordance with EMC's
instructions or specifications; (iv) use of the Software in an environment, in a
manner or for a purpose for which it was not designed; and (v) installation,
modification, alteration or repair of the Equipment or the Software by anyone
other than EMC or its authorized representatives.
(3). Disclaimer of Warranties: EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY
SECTION, EMC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY
OPERATION OF LAW OR OTHERWISE, OF ANY SOFTWARE FURNISHED UNDER OR IN CONNECTION
WITH THIS AGREEMENT. EMC DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THOSE ARISING
BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
5. MAINTENANCE SERVICES
(1). Warranty Period: Maintenance Services shall be provided at no additional
cost during the respective warranty periods for (i) Core Software and (ii)
licensed Enterprise Storage Software.
(2). Automatic Enrollment After the warranty period ends for Core Software,
Customer shall be automatically enrolled for continued Core Software Maintenance
Services for such Core Software and invoiced accordingly; provided Customer may
decline such automatic enrollment in writing sixty (60) days prior to the end of
the applicable warranty or continued support period. Customer shall be enrolled
for Enterprise Storage Software Maintenance Services for so long as Customer
maintains its right to use Enterprise Storage Software pursuant to this
Agreement.
(3). Support Procedures: Customer shall designate in writing a reasonable number
of authorized contacts, as determined by Customer and EMC ("Support Contacts),
who shall initially report problems and receive support from EMC hereunder. A
change to the authorized Support Contacts by Customer must be submitted in
writing to EMC by one of Customers duty authorized representatives.
(4). Continuous Support: Core Software Maintenance Services shall be subject to
the terms of this Agreement and shall include (a) EMC keeping the Core Software
in good operating condition in conformance with applicable specifications, which
includes remedial maintenance and the installation of engineering changes deemed
necessary by EMC; (b) 24-hour English-language help line service, seven days per
week, via telephone or other electronic media; (c) Maintenance Releases and New
Releases; (d) documentation updates, as they become available; and (e)
replacement of the Core Software at no charge if the media becomes destroyed or
damaged so that such Core Software becomes unusable.
(5). Non-continuous Support: In the event the Core Software was not maintained
by EMC immediately prior to Customers order, Core Software Maintenance Services
will commence upon EMC's certification that the Core Software is in good
operating condition. Efforts to make such a certification shall be at EMC's
then-current rates for such certification services. Customer shall also be
invoiced for all applicable fees.
(6) Enterprise Storage Software Support: Enterprise Storage Software Maintenance
Services shall be subject to the terms of this Agreement and shall include the
following: (a) 24-hour English-language help line service, seven days per week,
via telephone or other electronic media; (b) Software Release; (c) documentation
updates, as they become available; and (d) replacement of the Enterprise Storage
Software at no charge if the media becomes destroyed or damaged so that such
Software becomes unusable.
(7) Limitations On Maintenance Services And Warranties: EMC shall not be
required to support any releases of any Software other than the current release
and the immediately prior release of such Software.
6. TERMINATION
EMC shall have the right to terminate without liability any of Customers
licenses to the Software granted pursuant to this Agreement (a) if Customer
fails to comply with the terms and conditions of this Agreement and then fails
to cure such failure within thirty (30) days after receiving written notice
thereof from EMC, or (b) if Customer fails to pay applicable fees. Upon notice
of termination, Customer shall immediately cease to use all copies of the
terminated Software, and shall return or destroy, and certify destruction of,
the terminated Software and all portions and copies thereof.
7. DISCLAIMER AND LIMITATIONS OF LIABILITY
(1). EXCEPT AS IS PROVIDED IN THE PATENTS AND COPYRIGHTS SECTION OF THIS
AGREEMENT, EMC'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
THE LICENSE OF SOFTWARE, THE PROVISION OF SERVICES AND THE USE, PERFORMANCE,
RECEIPT OR DISPOSITION OF SUCH SOFTWARE OR SERVICES, WHETHER BASED UPON
WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE ACTUAL
AMOUNTS PAID BY CUSTOMER (OTHER THAN REIMBURSEMENT OF EMC'S EXPENSES) FOR SUCH
SOFTWARE AND/OR SERVICES DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD OR ONE
MILLION US DOLLARS ($1,000,000). EMC'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO
DAMAGES CAUSED BY EMC'S SOLE NEGLIGENCE, AND IS FURTHER LIMITED BY THE WARRANTY
SECTION OF THIS AGREEMENT. CUSTOMER WAIVES THE RIGHT TO BRING ANY CLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN EIGHTEEN MONTHS AFTER THE
CAUSE OF ACTION UPON WHICH THE CLAIM IS BASED.
(2). IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR LOSSES.
8. GOVERNING LAW:
This Agreement shall be governed, interpreted and construed in accordance with
the laws of the Commonwealth of Massachusetts, U.S.A., excluding its conflict of
laws rules.
Signed by authorized representatives of both parties.
XXX Xxxxxxxxxxx
("EMC")
--------------------------------------------------------------------------------
Signature
--------------------------------------------------------------------------------
Printed Name
--------------------------------------------------------------------------------
Title
Xxxx.xxx, Inc.
--------------------------------------------------------------------------------
("Customer")
/s/ Xxx Xxxxxxx
--------------------------------------------------------------------------------
Signature
Xxx Xxxxxxx
--------------------------------------------------------------------------------
Printed Name
SVP
--------------------------------------------------------------------------------
Title
2
[LETTERHEAD OF XXXX.XXX]
June 4,1999
Xxxxx Xxxx
Senior Account Manager
XXX Xxxxxxxxxxx
00 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xxxxx:
Please accept this letter our order for the configuration below.
Symmetrix Hardware
Qty. Model Description
---- ----- -----------
4 3930-36 Symmetrix ICDA 3930 36 GB Frame
128 3030-36M2 36 GB mirrored drives (72.4 GB usable RAID-1)
32 303 l-18M2 18 GB mirrored drives (32.2 GB usable RAID-1)
16 DP-FCD2-MM 2-Port Multi-Mode Fibre-Channel Director
8 DP-USD4SW 4-Pot Ultra-SCSI Channel Director
4 MEM2-8 192 8 GB Cache Memory
32 FClOM-5OM 10 Meter Fibre-Channel Cables
Investment: $3,742,096
Symmetrix Software
Qty. Model Description
---- ----- -----------
4 SYMMGR-BAS Symmetrix Manager Software-Base Component
4 SYMMGR-DDR Symmetrix Manager Software-Dynamic Disk Reallocation
4 SYMMOR-CTL Symmetrix Manager Software-Control Component
4 SYMMGR-WLA Symmetrix Manager Software-Workload Analyzer Component
4 POWERPATH-ENT Powerpath Software for Enterprise-Class Service
4 TF-OPEN Timefinder Software for Open Systems
Investment: $ 844,000
Enterprise Storage Network Solution
Qty. Model Description
---- ----- -----------
2 EC-l000 Connectrix Cabinet
1 SP-l00l Connectrix Service Processor Kit
4 ED-1032-325 Connectrix Director-32 Port
1 EM-1002 Connectrix Manager Software
4 PM-1032 Connectrix PRD MOR
4 V-LOGIX-X9 Volume Logix Software
56 FC3OM-50M Fiber 30M 50/125 Cable
Investment: 791,892
Celerra File Server
Qty. Model Description
---- ----- -----------
2 CFS-14 Celerra Cabinet
12 CDM5-2E4 2x Quad Ethernet Datamover
2 CCS3-E Celerra Control Station
12 CPS-UNIX-LIC Celerra SW License
2 CFS-CSMGR-LIC Control Station Manager SW
24 C12MI4-68S 12M SCSI Cable
Investment: 572,187
Professional Services
Qty. Model Description
---- ----- -----------
4 PS-LVLl-SYM Professional Services-Planning Install, Implementation-Symm Mgr.
4 PS-LVL1-TIME Professional Services-Planning, Install, Implementation-Timefinder
4 PS-LVL1-PWP Professional Services-Planning, Install, Implementation-Powerpath
2 PS-CFS-PM Professional Services-Planning, Install, Implementation-Celerra
1 PS-ESN-PM Professional Services-Planning, Install, Implementation-ESN
Investment: $ 322,000
EMC Database Edition for Oracle by VERITAS
Qty. Model Description
---- ----- -----------
3 EDE-TIER3 EMC DB Edition for Oracle for 2 Sun hosts and Symmetrix 3930
6 EFS-TIERl EMC Foundation Suite by Veritas for Sun 450
Investment: $ 348,000
Fibre-Channel Host Bus Adapters
Model Description Price (each) Qty Extended Price
----- ----------- ------------ --- --------------
XX-0000-X-XX Xxxxxx Fibre-Channel Host-Bus adapter for $1,800 40 $72,000
Sun PCI-based machines
FC64-1063-EMC Jaycor Fibre-Channel Host-Bus adapter for $2,705 14 $37,870
Sun S-bus-based machines
Pricing on both adapters indicated above includes a 3-year warranty.
Investment: $ 109,870
Support
3-year Hardware Support: $786,768
3-year Software Support: $866,343
Total 3-year Support Investment $1,653,111
Solution Summary
o Four Symmetrix 3930 Frames, with;
o 20 TB ICDA Capacity (scalable to 57 TB raw capacity)
o 32 GB Cache
o 32 Fibre-Channel Connections and 32 Ultra-SCSI connections
o 2 EMC Connectrix Systems with 128-port Enterprise Fibre-Channel
connectivity, Service Processor
o 2 EMC Celerra File Servers with:
o 12 Data Movers with 8 Ethernet interfaces each,
o Control Stations
o Symmetrix Manager (GUI Symmetrix Management) including Control, Dynamic
Disk Reallocator, and Workload Analyzer and Optimizer components, for Unix
or NT
o EMC Timefinder Software
o Powerpath software for 4 Sun 6000-class servers
o Connectrix Manager Software Suite
o Volume Logix Software
o Celerra Manager Software Suite
o EMC Database Edition for Oracle by Veritas Software for 6 Sun hosts.
o EMC Foundation Suite by Veritas for 6 Sun 450-class servers.
o Installation, Software Professional Services, Cables and related costs as
indicated.
o 3-year 24x7x365 Hardware/Software Support including remote support from
EMC's Worldwide Customer Service Center
Please ship the configuration above no later than June 18th, 1999 to:
Exodus Communications
Internet Data Center
Harborside Financial Center
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000-0000
Additional terms and conditions to this purchase are as follows:
- Xxxx.xxx will lease the equipment as listed above thru EMC according to
the payment schedule detailed above.
- Performance and acceptance criteria will be mutually agreed to by both EMC
and Xxxx.xxx prior to delivery of the above listed product
- We agree to start good faith negotiations with XXX Xxxxxxxxxxx to
establish mutually agreeable terms and conditions based on EMC's standard
Customer Agreement, as attached. In the interim period, we agree that
EMC's Customer Agreement (with exception of Paragraphs 6E and 6G, which
will be superceded by the terms and conditions described in this order
letter) will control the purchase of the above Products. When a new
agreement has been signed by both parties, we agree that this new
agreement shall apply retroactively to cover this transaction. However, we
agree that the business terms describe here are now firm and not subject
to re-negotiation.
- EMC agrees that pricing for Xxxx.xxx moving forward shall not exceed the
pricing extended at this time. Pricing for all hardware shall decrease by
3% quarterly starting July 1, 1999,
- EMC will extend a tradeout credit of $l00,000 per 1 TB Raw Capacity for
currently deployed MTI equipment up to 8 TB and $250,000 per 1 TB Raw
Capacity for currently deployed Network Appliance Equipment up to 4 TB.
The minimum EMC purchase in conjunction with this credit must be 12 TB,
independent from this transaction, executed with the equipment returned to
EMC by December 31, 1999, and in accordance with the pricing detailed in
this agreement,
- The proposed solution has the following scalability available within the
framework being delivered:
1. An additional 56 spare ports available on the Connectrix for
connectivity/growth which enables 42 additional hosts to be added at no
additional cost for connectivity.
2. An additional 96 drives (or up to 3456GB Capacity) can be added to each
Symmetrix 3930-36 unit for capacity expansion. The upgrade costs for these
are as follows:
Drive Type Minimum Capacity Upgrade Upgrade Pricing Upgrade Unit to Full Capacity
---------- ------------------------ --------------- -----------------------------
18GB 288GB $36,000 $432,000
36GB 566GB $57,600 * $345,600
* Appropriate Cache Is Included
3. Each Symmetrix unit can also support an additional 8GB of cache memory.
The upgrade cost of this item is $120,000 per unit.
4. An additional (8) Datamovers can be added for each Celerra Subsystem
allowing a greater than 2x increase in scalability capability for
performance and connectivity within each footprint,
The upgrade cost for this upgrade (Per Datamover):
Product Unit Price
------- ----------
CDMS-2E4 $19,500
CFS-Unix $22,500
5. Each unit can be upgraded to be SRDF capable by supplying (at a cost not
to exceed as listed) the following components.
Product Qty Unit Price
------- --- ----------
SRDF-3930 1 $160,000
DP-RLD2 2 $ 22,500
Thank you for your consideration regarding this matter and please ship all the
above equipment to arrive no later than June 25, 1999.
Sincerely
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Senior Vice President
[LETTERHEAD OF XXXX.XXX]
June 4,1999
Xxxxx Xxxx
Senior Account Manager
XXX Xxxxxxxxxxx
00 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xxxxx:
Please accept this letter our order for the configuration below.
Symmetrix Hardware
Qty. Model Description
---- ----- -----------
4 3930-36 Symmetrix ICDA 3930 36 GB Frame
128 3030-36M2 36 GB mirrored drives (72.4 GB usable RAID-1)
32 303 l-18M2 18 GB mirrored drives (32.2 GB usable RAID-1)
16 DP-FCD2-MM 2-Port Multi-Mode Fibre-Channel Director
8 DP-USD4SW 4-Pot Ultra-SCSI Channel Director
4 MEM2-8 192 8 GB Cache Memory
32 FClOM-5OM 10 Meter Fibre-Channel Cables
Investment: $3,742,096
Symmetrix Software
Qty. Model Description
---- ----- -----------
4 SYMMGR-BAS Symmetrix Manager Software-Base Component
4 SYMMGR-DDR Symmetrix Manager Software-Dynamic Disk Reallocation
4 SYMMOR-CTL Symmetrix Manager Software-Control Component
4 SYMMGR-WLA Symmetrix Manager Software-Workload Analyzer Component
4 POWERPATH-ENT Powerpath Software for Enterprise-Class Service
4 TF-OPEN Timefinder Software for Open Systems
Investment: $ 844,000
Enterprise Storage Network Solution
Qty. Model Description
---- ----- -----------
2 EC-l000 Connectrix Cabinet
1 SP-l00l Connectrix Service Processor Kit
4 ED-1032-325 Connectrix Director-32 Port
1 EM-1002 Connectrix Manager Software
4 PM-1032 Connectrix PRD MOR
4 V-LOGIX-X9 Volume Logix Software
56 FC3OM-50M Fiber 30M 50/125 Cable
Investment: 791,892
Celerra File Server
Qty. Model Description
---- ----- -----------
2 CFS-14 Celerra Cabinet
12 CDM5-2E4 2x Quad Ethernet Datamover
2 CCS3-E Celerra Control Station
12 CPS-UNIX-LIC Celerra SW License
2 CFS-CSMGR-LIC Control Station Manager SW
24 C12MI4-68S 12M SCSI Cable
Investment: 572,187
Professional Services
Qty. Model Description
---- ----- -----------
4 PS-LVLl-SYM Professional Services-Planning Install, Implementation-Symm Mgr.
4 PS-LVL1-TIME Professional Services-Planning, Install, Implementation-Timefinder
4 PS-LVL1-PWP Professional Services-Planning, Install, Implementation-Powerpath
2 PS-CFS-PM Professional Services-Planning, Install, Implementation-Celerra
1 PS-ESN-PM Professional Services-Planning, Install, Implementation-ESN
Investment: $ 322,000
EMC Database Edition for Oracle by VERITAS
Qty. Model Description
---- ----- -----------
3 EDE-TIER3 EMC DB Edition for Oracle for 2 Sun hosts and Symmetrix 3930
6 EFS-TIERl EMC Foundation Suite by Veritas for Sun 450
Investment: $ 348,000
Fibre-Channel Host Bus Adapters
Model Description Price (each) Qty Extended Price
----- ----------- ------------ --- --------------
XX-0000-X-XX Xxxxxx Fibre-Channel Host-Bus adapter for $1,800 40 $72,000
Sun PCI-based machines
FC64-1063-EMC Jaycor Fibre-Channel Host-Bus adapter for $2,705 14 $37,870
Sun S-bus-based machines
Pricing on both adapters indicated above includes a 3-year warranty.
Investment: $ 109,870
Support
3-year Hardware Support: $786,768
3-year Software Support: $866,343
Total 3-year Support Investment $1,653,111
Solution Summary
o Four Symmetrix 3930 Frames, with;
o 20 TB ICDA Capacity (scalable to 57 TB raw capacity)
o 32 GB Cache
o 32 Fibre-Channel Connections and 32 Ultra-SCSI connections
o 2 EMC Connectrix Systems with 128-port Enterprise Fibre-Channel
connectivity, Service Processor
o 2 EMC Celerra File Servers with:
o 12 Data Movers with 8 Ethernet interfaces each,
o Control Stations
o Symmetrix Manager (GUI Symmetrix Management) including Control, Dynamic
Disk Reallocator, and Workload Analyzer and Optimizer components, for Unix
or NT
o EMC Timefinder Software
o Powerpath software for 4 Sun 6000-class servers
o Connectrix Manager Software Suite
o Volume Logix Software
o Celerra Manager Software Suite
o EMC Database Edition for Oracle by Veritas Software for 6 Sun hosts.
o EMC Foundation Suite by Veritas for 6 Sun 450-class servers.
o Installation, Software Professional Services, Cables and related costs as
indicated.
o 3-year 24x7x365 Hardware/Software Support including remote support from
EMC's Worldwide Customer Service Center
Please ship the configuration above no later than June 18th, 1999 to:
Exodus Communications
Internet Data Center
Harborside Financial Center
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000-0000
Additional terms and conditions to this purchase are as follows:
- Xxxx.xxx will lease the equipment as listed above thru EMC according to
the payment schedule detailed above.
- Performance and acceptance criteria will be mutually agreed to by both EMC
and Xxxx.xxx prior to delivery of the above listed product
- We agree to start good faith negotiations with XXX Xxxxxxxxxxx to
establish mutually agreeable terms and conditions based on EMC's standard
Customer Agreement, as attached. In the interim period, we agree that
EMC's Customer Agreement (with exception of Paragraphs 6E and 6G, which
will be superceded by the terms and conditions described in this order
letter) will control the purchase of the above Products. When a new
agreement has been signed by both parties, we agree that this new
agreement shall apply retroactively to cover this transaction. However, we
agree that the business terms describe here are now firm and not subject
to re-negotiation.
- EMC agrees that pricing for Xxxx.xxx moving forward shall not exceed the
pricing extended at this time. Pricing for all hardware shall decrease by
3% quarterly starting July 1, 1999,
- EMC will extend a tradeout credit of $l00,000 per 1 TB Raw Capacity for
currently deployed MTI equipment up to 8 TB and $250,000 per 1 TB Raw
Capacity for currently deployed Network Appliance Equipment up to 4 TB.
The minimum EMC purchase in conjunction with this credit must be 12 TB,
independent from this transaction, executed with the equipment returned to
EMC by December 31, 1999, and in accordance with the pricing detailed in
this agreement,
- The proposed solution has the following scalability available within the
framework being delivered:
1. An additional 56 spare ports available on the Connectrix for
connectivity/growth which enables 42 additional hosts to be added at no
additional cost for connectivity.
2. An additional 96 drives (or up to 3456GB Capacity) can be added to each
Symmetrix 3930-36 unit for capacity expansion. The upgrade costs for these
are as follows:
Drive Type Minimum Capacity Upgrade Upgrade Pricing Upgrade Unit to Full Capacity
---------- ------------------------ --------------- -----------------------------
18GB 288GB $36,000 $432,000
36GB 566GB $57,600 * $345,600
* Appropriate Cache Is Included
3. Each Symmetrix unit can also support an additional 8GB of cache memory.
The upgrade cost of this item is $120,000 per unit.
4. An additional (8) Datamovers can be added for each Celerra Subsystem
allowing a greater than 2x increase in scalability capability for
performance and connectivity within each footprint,
The upgrade cost for this upgrade (Per Datamover):
Product Unit Price
------- ----------
CDMS-2E4 $19,500
CFS-Unix $22,500
5. Each unit can be upgraded to be SRDF capable by supplying (at a cost not
to exceed as listed) the following components.
Product Qty Unit Price
------- --- ----------
SRDF-3930 1 $160,000
DP-RLD2 2 $ 22,500
Thank you for your consideration regarding this matter and please ship all the
above equipment to arrive no later than June 25, 1999.
Sincerely
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Senior Vice President