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Exhibit 10.41
AMENDMENT DATED MARCH 14, 2001 ("AMENDMENT")
TO
FACILITIES MAINTENANCE AGREEMENT
DATED DECEMBER 17, [SIC], 1999 (THE "AGREEMENT")
BETWEEN
DATA GENERAL, A DIVISION OF EMC CORPORATION ("DG")
AND
GOAMERICA COMMUNICATIONS CORPORATION ("GOAMERICA")
Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Agreement. The parties, DG and GoAmerica, hereby amend
the Agreement as follows:
1. Section 11.1 of the Agreement is deleted in its entirety, and the following
substituted therefor:
The term of the Agreement (the "Initial Term") shall hereafter, for all
purposes of the Agreement, be coterminous with the "Demised Term" as defined in
the Data Center Lease, which is currently scheduled to expire on February 29,
2004. Provided that there shall then exist no default of GoAmerica under the
Agreement, DG agrees to cooperate with GoAmerica in order to obtain, prior to
April 30, 2003, the written consent of DG's landlord under the Data Center Lease
("Owner") to the assignment by DG to GoAmerica of all of DG's rights and
obligations under the Data Center Lease as of February 29, 2004 (the
"Assignment"). The Assignment shall (a) provide for the complete release of DG
and EMC from any and all liabilities or obligations under the Data Center Lease
accruing after February 29, 2004, (b) shall be completely executed in form and
substance reasonably acceptable to DG prior to February 28, 2003, and (c) shall
not become effective unless Owner shall have consented to and approved the
Assignment in writing prior to April 30, 2003. If all of the foregoing terms
have been satisfied and all conditions to the effectiveness of the Assignment
have been met prior to April 30, 2003, DG agrees to exercise the extension
option contained in the Data Center Lease for an additional two (2) years beyond
February 29, 2004 (the "Extension Term"), it being understood between the
parties that upon the exercise of such extension GoAmerica shall assume and
become solely responsible and liable for all performance obligations of the
tenant under the Data Center Lease accruing after February 29, 2004. DG makes no
representation or warranty as to the effective rent or other applicable terms of
the Data Center Lease during the Extension Term, it being understood that
negotiation of all such terms shall be the sole responsibility of GoAmerica.
2. Pursuant to and subject to the terms of an amendment to the Data Center
Lease executed on or about the date hereof between DG and Owner (the "Lease
Amendment"), a copy of which has been reviewed and approved by GoAmerica,
the Data Center shall be expanded to include the "Additional Space"
described in the Lease Amendment upon delivery thereof to DG by Owner and
completion of the buildout of such Additional Space by DG.
3. From and after the date hereof, the pricing of Services shall be as set
forth in Exhibit C attached hereto, and such Exhibit shall amend and
replace Exhibit C to the original Agreement. Furthermore, it is understood
and agreed by the parties that Services shall be provided by DG on a
completely net basis, and that in the event of any unforeseen increases in
utilities or other costs incurred by DG in providing the Services, Exhibit
C may be amended in order to allow DG to pass on such increased costs to
GoAmerica.
4. The parties agree to amend certain other provisions of the Agreement as
follows:
a. The first WHEREAS clause on the first page of the Agreement is
deleted, and the following inserted therein: "GoAmerica agrees to
license from DG the Data Center, as more particularly described
herein, subject to and upon all of the terms and conditions
hereinafter set forth."
b. Section 2.1 is amended by deleting the term "best efforts" and
replacing such term with "commercially reasonable efforts".
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c. Section 2.4 is amended by inserting the words "zoning or building
department" before the word "consents".
d. Section 7.2 is amended and restated in its entirety as follows:
"GoAmerica's aggregate liability for any claims arising from this Agreement
shall not exceed two (2) times the accrued amounts owed by GoAmerica to DG
for Services during the immediately preceding twelve (12) month period
prior to the claim that gave rise to the damages. The foregoing limitation
shall not apply to any liabilities of GoAmerica to DG for damages resulting
from GoAmerica's failure to vacate the Data Center upon the expiration or
earlier termination of the term of this Agreement."
e. Section 9 is amended by changing the definition of "Data Center Lease"
to include the Data Center Lease, "as amended by the Lease Amendment."
Furthermore, insert "Subject to the Data Center Lease" at the
beginning of the last sentence of Section 9.
f. Section 11.3 is amended by inserting the following at the end of
clause (i): ", provided that DG may terminate this Agreement at any
time following (A) failure of GoAmerica to cure a default of any
payment obligation under this Agreement within thirty (30) days after
written notice to GoAmerica of such default, or (B) failure of
GoAmerica to immediately cure any default of its obligations under
Section 9 which results in any action on the part of Owner to declare
a default under the Data Center Lease."
g. Section 11.4 is amended by adding the following sentence at the end
thereof: "None of the foregoing shall be construed to permit
GoAmerica, under any circumstances, to occupy any part of the Data
Center following expiration or earlier termination of the term of the
Data Center Lease."
h. Section 14.5 is amended by changing the reference to "Section 10" to
instead refer to "Section 9".
i. Section 14.6 is amended by requiring that any notice given to DG also
be sent simultaneously and in the same manner to:
EMC Corporation
35 Parkwood Drive
Hopkinton, MA 01748
Attention: General Counsel
And to: EMC Corporation
228 South Street
Hopkinton, MA 01748
Attention: Director, Global Real Estate
IN WITNESS WHEREOF, this Amendment has been executed by the duly authorized
representatives of the parties as of this Amendment date first written down.
Data General, A Division of EMC GoAmerica Communications
Corporation Corporation
By /s/ Angelo Perri By /s/ Joseph Korb
----------------------------- ----------------------------------
Name Angelo Perri Name Joseph Korb
----------------------------- ----------------------------------
Title Director Title President
----------------------------- ----------------------------------
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EXHIBIT C
RECURRING MONTHLY OPERATIONAL EXPENSES - MARCH 1, 2001 TO JUNE 30, 2003
STAFFING
Operations Manager (240 days per year)
Subtotal - Staffing
UTILITIES (Includes Facilities Usage charge, Electric, Janitorial, Water, phone
system, diesel generator fee, insurance)
MAINTENANCE AND REPAIRS
(Includes Fire Suppression, UPS, A/C, A/C water charge, generator, Fire dept.
permits, security)
TOTAL MONTHLY RECURRING COST FROM MARCH 1, 2001 TO JUNE 30, 2003:
AMOUNT FINANCED:
TOTAL MONTHLY RECURRING INCREMENTAL COST TO BE INVOICED SEPARATELY:
RECURRING MONTHLY OPERATIONAL EXPENSES - JULY 1, 2003 TO FEBRUARY 29, 2004
STAFFING
Operations Manager (240 days per year)
Subtotal - Staffing
UTILITIES (Includes Facilities Usage charge, Electric, Janitorial, Water, phone
system, diesel generator fee, insurance)
MAINTENANCE AND REPAIRS
(Includes Fire Suppression, UPS, A/C, A/C water charge, generator, Fire dept.
permits, security)
TOTAL MONTHLY RECURRING COST FROM JULY 1, 2003 TO FEBRUARY 29, 2004:
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Exhibit C
RECURRING MONTHLY OPERATIONAL EXPENSES - MARCH 1, 2001 TO JUNE 30, 2002
STAFFING
Operations Manager (240 days per year) $15,000
Subtotal - Staffing $15,000
Utilities (includes Facilities Usage charge, Electric, Janitorial,
Water, phone system, diesel generator fee, insurance) $25,340
MAINTENANCE AND REPAIRS
(includes Fire Suppression, UPS, A/C water charge, generator,
Fire dept. permits, security) $789
TOTAL MONTHLY RECURRING COST FROM MARCH 1, 2001 TO JUNE 30, 2003: $41,137
AMOUNT FINANCED: $31,895
TOTAL MONTHLY RECURRING INCREMENTAL COST TO BE INVOICED SEPARATELY: $9,142
RECURRING MONTHLY OPERATIONAL EXPENSES - JULY 1, 2003 TO FEBRUARY 23, 2004
Staffing
Operations Manager (240 days per year) $20,000
Subtotal - Staffing $20,000
Utilities (includes Facilities Usage charge, Electric, Janitorial,
Water, phone system, diesel generator fee, insurance) $26,876
MAINTENANCE AND REPAIRS
(includes Fire Suppression, UPS, A/C, A/C water charge, generator,
Fire dept. permits, security) $1,730
TOTAL MONTHLY RECURRING COST FROM JULY 1, 2003 TO FEBRUARY 23, 2004: $48,606