Exhibit 10.52
TERMINATION AGREEMENT
relating to
POINT OF VIEW
TUPOLEVLAAN 101-109, SCHIPHOL-RIJK
THE NETHERLANDS
(the "Property")
among
DEKA Immobilien Investment GmbH
and
EQUINIX INC.
dated 18th Februrary 2002
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TABLE OF CONTENTS
Page nr.
Article 1. Definitions .......................... 4
Article 2. Terminations & vacation .............. 5
Article 3. Bank guarantees & compensation ....... 5
Article 4. Condition precedent .................. 7
Article 5. Settlement of costs .................. 8
Article 6. Release & waiver ..................... 9
Article 7. Miscellaneous ........................ 9
Annex Proxy Deka
Exhibit A Lease
Exhibit B Notification Letter
Exhibit C Acknowledgement Letter
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THIS AGREEMENT (the "Termination Agreement") is made and entered into this day
of 2001 by and among:
1. EQUINIX INC., a company incorporated under the laws of the state of
Delaware, United States of America, having its registered office at 2450
Bayshore Parkway, Mountain View, CA 94043, United States of America
(hereinafter "Equinix") duly represented by its Managing Director Mr.
Christopher L. Birdsong;
and
2. DEKA IMMOBILIEN INVESTMENT GMBH, a Company incorporated under the laws of
the Federal Republic of Germany, having itsregistered office at (62309)
Frankfurt, Germany (hereinafter "Deka") duly represented by Mr J. Gottler
and Ms E. Laqua on the strength of the power of attorney attached to this
Termination Agreement;
Parties 1-2 jointly "Parties" and separately a "Party".
WHEREAS
A. On 28 April 2000 a certain lease pertaining to the Property "Point of View"
at Tupolevlaan 101-109, Schiphol-Rijk, the Netherlands, was entered into by
Equinix as lessee and GIP Airport B.V. as lessor (the "Lease"), attached to
this Termination Agreement as Exhibit A. The Property was transferred from
GIP Airport B.V. to Deka as a result of which Deka is successor in title as
"Lessor" under the Lease by operation of the law.
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B. In 2001 Equinix requested negotiations on the early termination of the
Lease and Deka is prepared to co-operate with early termination of the
Lease against payment of a compensation for its (estimated) costs and
damages, including the loss of rent, the costs of re-letting and the costs
of reinstating the Property as set out in Schedule 7 to the Lease, all this
subject to and as provided in this Termination Agreement;
NOW THEREFORE the Parties hereby agree as follows:
Article 1. Definitions
When used in this Termination Agreement capitalized terms shall heave the
meaning attributed thereto in the Article, Recital or Introduction next to such
item
Bank Guarantees Article 3.1
Compensation Article 3.2
Deka Introduction
Equinix Introduction
Lease Recital A
Property Recital A
Reinstatement Bank guarantee Article 3.1
Rent Bank Guarantee Article 3.1
Termination Date Article 2.1
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Article 2. Termination & vacation
2.1 Termination
Parties agree that subject to the proper and timely fulfilment of the
condition precedent as set out in Article 4, the Lease shall terminate with
effect as of the 31st December 2001 or so much later as the condition of
Article 4 will have been met (the "Termination Date").
2.2 Vacation
On the Termination Date Equinix shall have vacated the property and shall
have returned to Deka all records and objects pertaining to the Property
such as keys, security passes and codes etc. On the Termination Date the
Property shall be inspected by the Parties and a delivery report shall be
compiled.
Article 3. Bank guarantees & compensation
3.1 Bank Guarantees
Under the Lease two bank guarantees were issued by ABN Amro Bank to the
amount of NLG 12,145,668 (in words: twelve million one hundred and forty
five thousand six hundred and sixty eight Dutch Guilders) (the "Bank
Guarantees"). Of the two Bank Guarantees one was issued to cover for rent
payments of up to one year's rent including service charges and VAT to the
amount of NLG 3,812,053 (in words: three million eight hundred twelve
thousand and fifty three Dutch Guilders) the "Rent Bank Guarantee"), and
one to cover for the costs of reinstating the Property in its original
design as set out in Schedule 7 to the Lease to the amount of NLG
8,333,615,00 (in words: eight million three hunderd thirty three thousand
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six hundred and fifteen Dutch Guilders) (the "Reinstatement Bank
Guarantee").
3.2 Compensation
In consideration for the cooperation of DEKA with early termination,
Equinix will pay the amount of NLG 12,145,668.-- (in words: twelve million
one hundred forty five thousand six hundred sixty eight Dutch Guilders
("The Compensation")), in one lump sum prior to the Termination Date,
towards DEKA's costs and damages itemized as follows:
a) the rent, service charges and VAT up to and including the Termination
Date (it being understood that the rent for the fourth quarter of 2001
has been paid and that this item sub a will cover the rent etc. as
from 1 January 2002 in the event that the Termination Date is after 1
January 2001);
b) a compensation for lost income out of rent payments under the Lease up
to the amount of NLG 3,812,052.-- (in words: three million eight
hundred twelve thousand fifty two Dutch Guilders), inclusive of VAT,
representing one year's rent without indexation;
c) the costs of reinstating the Property as set out in Schedule 7 to the
lease, the costs of installing temporary heating and gas- and
electricity connections;
d) the reletting costs, including brokers' fees, advertisements,
discounts and/or fitting-out contributions for new tenants;
e) the loss of income out of rent over and above the compensation sub (b)
above, if any;.
3.3 The part of the Compensation in the amount of NLG 8,333,615.-- (in words:
eight million three hundred thirty three thousand six hundred fifteen Dutch
Guilders)
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shall be applied as an advance for the losses, damages and costs as
referred to sub c, d and e, which advance will be settled against the
actual losses, damages and costs in the manner as provided hereunder in
article 5.
3.4 Equinix understands, accepts and agrees that Deka is entitled to call the
Bank Guarantees on account of default under the Lease by Equinix and that
Deka shall call the Bank Guarantees in order to effect the payment of the
Compensation. Equinix shall cause ABN Amro Bank to make the payment(s) in
the aggregate of NLG 12,145,668.-- to Deka per value 31.12.01, against
surrender of the two Bank Guarantees.
3.5 On the date of signing this Agreement, Deka shall send ABN Amro Bank ("the
Bank") the Notification letter in conformity with the draft attached hereto
as Exhibit B and Equinix shall acknowledge in writing to the Bank in
conformity with the draft, attached hereto as Exhibit C, that the Bank
should pay to Deka NLG 12,145,668.-- per value 31.12.01 against full and
final discharge of the Bank's obligations under the Bank Guarantees. Deka
shall return the originals of the two Bank Guarantees to the Bank, upon
receipt of NLG 12,145,668.-- from the Bank.
Article 4. Condition precedent
4.1 The entering into force of this Termination Agreement is subject to the
proper and timely fulfilment of the conditions precedent that Equinix has
paid or has caused ABN Amro Bank to have paid the Compensation as set out
in article 3.2;
4.2 In case the condition precedent set out in Article 4.1 above has not, or
not in full
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been fulfilled on or before 1 February 2002, this Termination Agreement
shall not come into effect and the Lease shall remain in full force between
Parties, without prejudice to Deka's right to rescind the Lease in such an
event on account of default and anticipated default of Equinix, with the
right of Deka to recover from Equinix all its losses, damages, interests
and costs, not limited to the amount of the Compensation. In the event
that, as is to be foreseen, upon rescission of the Lease the claim of Deka
for losses, damages and costs shall be highter than the aggregate amount to
be received from ABN Amro Bank upon excussion of the two Bank Guarantees,
Equinix shall be obliged to pay the difference forthwith, with legal
interest as from 1 February 2002.
Article 5. Settlement of costs of reinstating the property
5.1 Should it appear that the costs of reinstating the Property as set out in
Schedule 7 to the Lease and the costs of installing temporary heating and
gas- and electricity connections (the cost items of Article 3.2 sub c
above) as actually incurred by Deka, are in excess of NLG 8,333,615.--,
Equinix shall be obliged to pay the shortfall to Deka.
5.2 Upon
(i) delivery of the work to be executed for reinstating the Property as
set out in Schedule 7 to the Lease, and
(ii) the entire reletting of the Property,
Deka will submit to Equinix a statement of account, specifying the actual
costs, losses and damages as itemized in article 3.2 sub c), d) and e).
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In the event of vacancy in the Property after the first year after the
Termination Date, the costs of vacancy (item sub e of Article 3.2) shall be
calculated on the basis of the rent per year plus indexation as provided in
the Lease, for the relevant period. In the event that (partial) reletting
is effected at a lower rent-level than as provided in the Lease, taking
indexation into account, the difference shall be capitalized for the
(first) period of the new lease and this amount shall be included in item
sub e of Article 3.2.
5.3 Should it appear that the aggregate of the actual costs, losses and damages
incurred by Deka as meant sub 5.2 above, are less than NLG 8,333,615.--.
Equinix, or as the case may be ABN Amro Bank, shall be entitled to such
remaining amount.
Article 6. Release & waiver
6.1 Parties agree that as of the Termination Date they shall have nothing other
to claim from one another than as set out in Article 5 and will, subject to
the provisions of Article 4, release one another from all other duties and
obligations and waive all other rights arising out of the Lease as from the
Termination Date.
Article 7. Miscellaneous
7.1 Partial invalidity
If any one or more of the provisions of this Termination Agreement shall be
invalid, illegal or unenforceable in any respect, the Parties agree that
each of them shall endeavour, in good faith negotiations, to replace any
such invalid, illegal or
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unenforceable provision(s) the economic effect of which is as close as
possible to that of the invalid, illegal or unenforceable provision(s).
7.2 Forum
The competent court in Amsterdam, the Netherlands, shall settle any dispute
or controversy arising under or in connection with this Termination
Agreement.
7.3 Applicable law
This Termination Agreement and any disputes arising thereof shall be
governed by, construed and enforced in accordance with the laws of the
Netherlands.
7.4 Amendments and Waiver
No amendment, waiver or consent with respect to any provision of this
Termination Agreement shall in any event be effective, unless the same
shall be in writing and signed by the Parties hereto and then such
amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
7.5 Notices
Any notice, request, instruction and other communication hereunder shall be
in writing and delivered to the Parties in person or sent by certified or
registered mail, postage prepaid, and by facsimile as follows:
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PARTY ADDRESS
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Equinix Attn: Mr. Christopher Birdsong
2450 Bayshore Parkway
Mountain View
CA 94043
Fax: +1 650 316 6900
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Deka Attn: Ms. Evelyn Laqua
Mainzer Landstrasse 37
60329 Frankfurt
Germany
P.O. Box 0523
60040 Frankfurt
Germany
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Language
The principal and ruling language of this Termination Agreement shall be
the English language and all correspondence and notices sent, pursuant to
this Termination Agreement shall be in English.
7.6 Entire Agreement
This Termination Agreement contains the entire agreement between the
Parties with respect to its subject matter and supersedes all prior written
or oral agreements and understandings between the Parties with respect to
that subject matter.
7.7 Headings
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The Articles and other headings contained in this Termination Agreement are
for convenience of reference only and shall not affect the meaning or
interpretation of this Termination Agreement.
7.8 Counterparts
This Termination Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which together shall be deemed to be one and the same
agreement.
IN WITNESS WHEREOF the Parties have executed this Termination Agreement on the
date first written above.
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Equinix Inc.
By:
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Deka GmbH
By: