Exhibit 10.50
Agreement
by and between
1. Naxos Schmirgelwerk Mainkur GmbH
Gutleutstra(beta)e 175, 60327 Frankfurt,
represented by the manager with single
representative power Gunter Rothenberger,
and
2. A.A.A. Aktiengesellschaft Allgemeine Anlageverwaltung vorm. Seilwolff
AG von 1890, Gutleutstra(beta)e 175, 60327 Frankfurt,
represented by the board member with
single representative power Gunter
Rothenberger,
as Civil Code Partnership under the name
Naxos-Union Grundstucksverwaltungs-
gesellschaft GbR,
- hereinafter "Landlord" -
and
Equinix, Inc.
2450 Bayshore Parkway,
Mountain View,
CA 94043, USA,
a Delaware Company.
- hereinafter "Tenant" -
represented by Mr. Chris Birdsong by
notarized proxy dated April 19, 2002,
receipt of which is confirmed by the
Landlord.
The parties hereto agree as follows:
1
1. Preamble
Landlord and Tenant are parties to a
Lease for the property Orber
Stra(beta)e 8, Frankfurt-Fechenheim
(hereinafter "Property"), in the
version of July 3, 2001.
1.1 The contract provides
a) for a term of 20 years, ending
August 7, 2020. The Tenant has not
yet used the Property.
b) the Tenant's obligation to
reconstruct the roof of the
building on the Property at an
estimated expense of
DM 2.700.000,00 plus ancillary
costs,
c) the Tenant's obligation to clean
and paint the buildings structural
steel on the Property,
d) the Tenant's obligation to keep the
Property in good order that
comprises the obligation to heat
the buildings sufficiently in
winter to avoid water damage.
1.2 The Tenant has been granted an
easement over the Property.
1.3 The Tenant's obligations to the
Landlord are secured by a LC by The
Chase Manhattan Bank, England,
dated October 18, 2001 in the
amount of EUR 1.073.271,10
(DM 2.099.136,00) for the benefit of
the Landlord.
1.4 The Tenant has entered into a
Supply of Electricity Agreement
with Mainova AG and has made an
advance payment of EUR 1.022.583,70
plus VAT (DM 2.000.000,00 plus 16 %
VAT, altogether DM 2.320.000,00) to
Mainova for certain work to be
performed by Mainova in this
context.
1.5 Because of an Agreement between the
Landlord (the Civil Code Company)
and A.A.A. Aktiengesellschaft
Allgemeine Anlageverwaltung vorm.
Seilwolff AG von 1890 of June 20,
2001, the Landlord shall suffer a
damage of at least EUR 746.114,00
by the early termination of the
lease.
1.6 The damage that is caused to the
Landlord by the early termination
amounts to EUR 15 million - 30
million.
2. Following the negative development
of the Tenant's industry and
business, the Tenant has announced
to the Landlord that it will have
to cease its rental payments after
the payment of the rent for May
2002. The Tenant faces potential
adverse financial consequences, in
the alternative. For this reason,
the Tenant has given termination
notice to the Landlord, effective
May 31, 2002.
Furthermore, the Tenant has failed
to perform his obligations pursuant
to Sections 1.1 b) - d) above which
has resulted in substantial rust
and water damage in the Property.
3. Settlement
In view of the premises the Parties
agree to settle their dispute as
follows:
3.1 The Landlord accepts the
termination for cause of the Lease
by the Tenant per May 31, 2002 on
condition that the following
payment- and other obligations of
the Tenant are fully paid and
performed.
3.2 The Tenant shall make the following
payments to the Landlord:
a) the May 2002 rent in the amount of
EUR 148.754,12 as agreed.
b) the payment of EUR 64.997,98 to
Allgemeine Hypothekenbank
Rheinboden AG, Frankfurt, by May
31, 2002.
c) an amount of EUR 250.000,00 (in
addition to the payment pursuant to
Sections 3.3 and 3.7) as damages
for the failure to reconstruct the
roofs of the buildings on the
Property, by May 10, 2002.
d) an amount of EUR 1.750.000,00 to
compensate for the water and rust
damage in the building as well as
for other damage, that was caused
by the Tenant's failure to paint
the steel structure and heat the
building as well as by the early
termination of the Lease, by the
10th of May, 2002.
3.3 The Tenant will not raise any
objections against the Landlord's
drawing of the Chase uc in the
amount of EUR 1.073.271,10 and
acknowledges the Landlord's right
to do this.
3.4 The Tenant gives its consent to
cancel the easement in the land
register of the Property. The
Tenant will sign the required
document to this effect and shall
submit all required powers-of
attorney/approvals to the land
register by June 1, 2002.
3.5 The Tenant hereby assigns any and
all rights for repayment of its
advance payment made to Mainova AG
to the Landlord as partial
compensation for the damage
suffered by the Landlord and will
repeat such assignment in a
separate document as per Appendix
1.
The Tenant does not enter into any
obligation, however, that Mainova
AG will pay anything or is obliged
to pay anything but still use its
best efforts to support the
Landlord to pursue its payment
claims. Any reasonable costs of the
Tenant that arise in this context
shall be compensated by Landlord.
The Parties are aware that the
matter may end up in German court.
The above second paragraph has
precedence over Section 3 of
Appendix 1 hereto.
3.6 As partial compensation of the
damage, the Landlord shall be
entitled to purchase 1.150.000
Equinix, Inc. shares that are
traded at the stock exchange for
US$11.500,00 (payable to Equinix,
Inc.). Without additional payment,
the Landlord can request delivery
of 1.150.000 Equinix, Inc. shares
which can be sold and traded at the
stock exchange after the lapse of a
one year holding period pursuant to
US Securities Laws. The closing
value of an Equinix, Inc. share on
April 25, 2002 was US$ 0,63.
The Tenant agrees to issue to the
Landlord share-warrants for
1.150.000 (one million one
hundred-fifty-thousand) warrant
shares of Equinix, Inc. (the
Tenant). The Parties agree to sign
the separate warrant agreement that
is attached hereto as Appendix 2,
for this purpose.
3.7 The Parties agree that with the
performance of the Tenant's
obligations pursuant to Sec. 3.1 -
3.6 hereof, as well as payment of
the LC to the Landlord or its bank
by Chase on or before June 10,
2002, any and all obligations of
the Tenant to the Landlord
including any VAT obligation under
and in connection with the Lease
are finally settled and cancelled,
no matter whether known or unknown
and whether based on contract, tort
or any other reason. This also
applies for any Landlord's rights
and claims against affiliates or
banks of the Tenant in the same
context.
3.8 With the signing hereof, the
Landlord is entitled to rent out
the Property for its own benefit
and to otherwise freely use it.
3.9 This Agreement is entered into
under the condition precedent that
the supervisory board of A.A.A.
Aktiengesellschaft Allgemeine
Anlagenverwaltung vorm. Seilwolff
AG von 1890 grants its consent by
May 6, 2002, 4 p.m.
4. Sundry Provisions
4.1 The Parties agree to keep this
Agreement confidential unless they
are obliged by law or other
contract to make it known to
others.
4.2 This Agreement is subject to German
law. Frankfurt/Main is place of
venue.
4.3 In case of discrepancies between
the English and German texts of
this Agreement, the English version
shall prevail.
Frankfurt, this 26th day of April 2002 Frankfurt, den 26. April 2002
Landlord/Vermieter Tenant/Mieter
Naxos Schmirgelwerk Mainkur GmbH Equinix, Inc.
/s/Gunter Rothenberger /s/Chris Birdsong
- -------------------------------------- -----------------------------
Gunter Rothenberger Chris Birdsong
A.A.A. Aktiengesellschaft Allgemeine
Anlageverwaltung vorm. Seilwolff
AG von 1890
/s/Gunter Rothenberger
- ----------------------------------------------
Gunter Rothenberger
Appendix 1
Contract of Assignment
Between
Equinix, Inc. a company under the law of Delaware, 2450 Bayshore Parkway,
Mountain View, CA 94043, USA, represented by Christopher L. Birdsong
(hereafter referred to as "Equinix")
and
Naxos-Union Estate Management Company GbR, comprising of
1. Naxos Schmirgelwerk (Emery Works) Mainkur GmbH, Gutleutstra(beta)e
175, 60327 Frankfurt am Main, represented by their Manager Gunter
Rothenberger.
2. A.A.A. Aktiengesellschaft Allgemeine Anlageverwaltung (Public Limited
Company General Management) formerly Seilwolff AG from 1890,
Gutleutstra(beta)e 175, 60327 Frankfurt am Main represented by Herr
Gunter Rothenberger und Mr Sven Rothenberger.
(hereafter referred to as "Naxos GbR")
1. Equinix has leased the property at Oberstra(beta)e 7 /
Wachtersbacherstra(beta)e 83 in Frankfurt am Main from Naxos GbR with the
Leasing Contract of 07.08.2000, the currently valid version is the 4th amendment
from 03.07.2001. To cover the particularly high requirements for electricity for
their business, Equinix has acquired the right to future provision of an
increased amount of electricity (12 MVA) via an offer from Mainova AG of the
30.05.2000 and the Reservation Contract between Equinix and Mainova AG of
6.10./11.10./13/10/2000 . Equinix has paid a building cost allowance and a
reservation fee of DM 2,320,000.00 according to payment requirements of Mainova
AG of 20.10.2000.
2. Contrary to their original plans, Equinix is discontinuing its business in
Germany. Equinix therefore no longer has interest in the increased provision of
electricity to the property by Mainova AG.
Equinix hereby transfers all claims they had against Mainova AG, regardless of
the reasons for the claims, to Naxos GbR. Naxos GbR will take on this transfer.
3. Equinix is hereby obliged to support Naxos GbR in any way required, which is
required in order to enforce the transferred rights against Mainova AG.
Equinix [signature] For Naxos GbR [signature]
26 April 2002 (Gunter Rothenberger)
As the sole authorised
represented Manager for the
only represented partner if
Naxos Scmirgelwerk Mainkur
GmbH