EXHIBIT 10.39
*CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
Second Supplement to the Lease Agreement
dated August 7, 2000 ("the Lease")
by and between
1) Naxos Schmirgelwerk Mainkur GmbH, Gutleutstra(beta)e 175, D-60327
Frankfurt, represented by Mr. Gunter Rothenberger and Mr. Sven
Rothenberger;
2) A.A.A. Aktiengesellschaft Allgemeine Anlageverwaltung vorm. Seilwolff
AG von 1890, Gutleutstra(beta)e 175, 60327 Frankfurt/M, represented by
Mr. Gunter Rothenberger and Mr. Sven Rothenberger;
both companies acting in a German Civil Code Partnership (the Parties
at 1. and 2. jointly called: "Landlord"), under the firm name Naxos-
Union Grundstucksverwaltungsgesellschaft GbR, Frankfurt/M, and
3) Equinix, Inc., a Delaware Corporation, 2450 Bayshore Parkway, Mountain
View, CA 94043, USA, represented by Christopher L. Birdsong;
as supplemented by the First Supplement to the Lease Agreement, of October 11,
2000.
The Parties hereto, on this 22nd day of December 2000 agree to modify the Lease,
as supplemented by the First Supplement dated October 11, 2000, as follows:
1. Pursuant to Sec. 7 ("Handover") of the Summary of Basic Lease
Information, the Landlord shall hand over to the Tenant office space
([*] m(2)), First Production Hall ([*] m(2)) and Second Production Hall
([*] m(2)) at the end of six months after the signing of the Agreement.
The Agreement was signed on August 7, 2000. February 7, 2001 thus is
the Handover date.
The Parties hereby agree to move the Handover date from February 7, 2001 by two
months to Saturday, April 7, 2001.
2. Pursuant to Sec. 9(b) ("Rent") of the Summary of Basic Lease
Information, the Parties rent-free period before the start of payment
of Rent for Premises (Site and Building) is [*] months after Handover,
and the start of payment of advance on Service Charges is [*] months
after Handover (October 7 and April 7, 2001 respectively).
2.1 The Parties hereby agree to commence payment of the Rent from [*]. The
monthly Rent will be a fixed amount for 32 (thirty two) months (i.e.
until September 30, 2003) based on the following formula, exclusive of
VAT :
[*]
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[*]
__________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2.2 As of October 1, 2003 the Rent plus Service Charges will be re-adjusted
per the terms of the Lease agreement for the remaining period of the
Lease agreement and will then be the amount shown in Sec. 9a Summary of
Basic Lease Information as eventually increased pursuant to Sections 9c
Summary and Article 4a.2 Lease.
3. With reference to Article 12.1.2, the Parties are in agreement to
assign the Lease agreement from Equinix, Inc. to Equinix GmbH,
Frankfurt, once it has been formed by registration in the commercial
register as a subsidiary of Equinix Netherlands B.V. The transfer of
the rights and obligations under the Lease Agreement from Equinix Inc.
to GmbH shall be done by another supplement to this Lease Agreement.
Landlord agrees to sign a proper supplement to the Lease Agreement
after he has been submitted:
- Written guaranty by the parent company (Equinix Netherlands
B.V.) for all obligations of GmbH under the Lease of the
Landlord, and
- a guaranty by a European Bank with German banking facilities in
the amount of (to be mutually agreed in another supplement to
this Lease Agreement) for all obligations of GmbH to Landlord
under the Lease. The Landlord simultaneously shall agree that
Equinix Inc. is released from all obligations under the Lease
and shall return the guaranty given by Equinix Inc. pursuant to
Art. 4a.1 (1) Lease.
As an alternative to submitting the above-mentioned bank guaranty, GmbH shall be
entitled, at its choice, to put an equal amount into a German bank account over
which the Landlord and GmbH may jointly dispose, as a security for all claims of
the Landlord under the Lease.
4. Pursuant to Art. 13 Lease, Landlord has agreed to register an Easement
on the property ranking before all other encumbrances other than
encumbrances II 1 and 2. The Landlord faces problems financing the
construction of the Leased Premises because of this obligation. For
this reason, the Parties agree as follows: Tenant allows Landlord to
register a land charge or mortgage of up to DM 15,000,000 (Deutsche
Mark fifteen million) in favour of a third party, a Bank and or a
Leasing Company with priority over the Easement to be registered for
Landlord. The Parties agree to take appropriate steps to assure that
any funds drawn by the Landlord under this land charge or mortgage are
exclusively used for the purpose of putting the leased object into the
state of construction which is required by the Lease. In particular,
the Bank shall not make any payments against the land charge or
mortgage without the prior written consent by Tenant.
The Landlord may only approve ("bewilligen") the registration of the
land charge after Tenant and Bank have agreed that the Bank, in case of
failure of the Landlord to pay what it owes to the bank under the loan
agreement for which the land charge/mortgage serves as collateral shall
transfer its rights under the mortgage to the Tenant against payment of
the amount of DM 15,000,000 due plus, at most, interest in the amount
of DM 400,000 on overdue amounts. The bank must further have agreed to
transfer any and all rights that it may have been granted by the Tenant
by assignment of the rent and other claims of the Landlord versus the
Tenant as well as
the assignment of the payment claim for which the land charge or
mortgage serves as collateral to the Tenant, simultaneously against
payment of the above-mentioned amount.
The Landlord hereby agrees that, in such case, it owes all amounts to
Tenant that it owed to the Bank prior to his failure to pay.
The Parties are in agreement that the Tenant then may cease paying rent
and service charges to the Landlord and, instead, may set-off his
obligation to pay Rent and Service Charges against his claim against
the Landlord for repayment of the amount that the Tenant has paid to
the Bank for the Landlord.
The Parties are further in agreement that, in such case, the Tenant
shall be free to employ another service company to render any Services
under the Lease that the Landlord has ceased to render in the
contractually agreed quality and quantity, at the expense of the
Landlord.
All other obligations of the Parties pursuant to the Lease as amended by the
First and Second Supplements to the Lease shall remain intact.
TENANT
Equinix, Inc.
By: /s/ Christopher L. Birdsong
-------------------------------------------
Christopher L. BIRDSONG
Title: Director IBX Development and Operations
Date: 16 Jan 01
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LANDLORD
Naxos Schmirgelwerk Mainkur GmbH
By: /s/ Gunter Rothenberger
-------------------------------------------
Gunter ROTHENBERGER
Title: Managing Director
Date: 18 December 2000
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A.A.A. Aktiengesellschaft Allgemeine Anlagenverwaltung vorm. Seilwolff AG von
1890
By: /s/ Gunter Rothenberger /s/ Sven Rothenberger
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Gunter ROTHENBERGER Sven ROTHENBERGER
Title: President
Date: 18 December 2000
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