New Jersey-Secaucus-275 Hartz Way Lease [Amendment No. 1] - Burlington Realty Associates III LP and Equinix Inc.
AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement (this "Amendment") is made as of December
18, 2000, between BURLINGTON REALTY ASSOCIATES III LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Landlord"), and EQUINIX, INC., a Delaware
corporation (the "Tenant").
RECITALS
A. Landlord and Tenant are parties to a Lease Agreement dated as of July
24, 2000 (the "Lease"), with respect to certain premises located at [*],
Secaucus, New Jersey (the "Premises").
B. Tenant is or will become a party to a Credit and Guaranty Agreement,
dated as of December 20, 2000 (as it may hereafter be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among (i)
Tenant and certain affiliates of Tenants as borrowers or guarantors, (ii) CIT
Lending Services Corporation, as the collateral agent ("Agent"), (iii) certain
banks, financial institutions and other entities listed therein, as Lenders,
(iv) Goldman Sachs Credit Partners L.P., as joint lead arranger, joint book
runner and syndication agent, and documentation agent, (v) Salomon Smith Barney
Inc., as joint lead arranger and joint book runner, (vi) Citicorp USA, Inc. as
Administrative Agent, and (vii) certain other parties (capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed thereto
in the Credit Agreement), pursuant to which the Lenders will be making certain
loans (the "Loans").
C. The Loans will be secured by, among other things, a leasehold mortgage,
or deed of trust or deed to secure debt (as amended and from time to time in
effect, the "Leasehold Mortgage") encumbering the interests of Tenant in and to
the Premises (the "Personal Property Collateral").
D. Landlord has consented to the Leasehold Mortgage in accordance with,
and subject to, the terms and conditions set forth in that certain Consent To
Mortgage Agreement dated December 19, 2000 among Landlord, Tenant and Agent.
E. Landlord and Tenant have agreed to amend the Lease upon the terms and
conditions set forth herein.
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*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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NOW, THEREFORE, in consideration of the foregoing, and for good and
valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, Landlord and Tenant hereby agree as follows:
1. Agent shall have the right but not the obligation to cure defaults
under the Lease. Landlord shall endeavor to give Agent copies of any written
notice sent to Tenant of any defaults by Tenant under the Lease concurrently
with the Landlord's delivery of such notice of default to Tenant under the
Lease, but any failure on the part of Landlord to so deliver such a notice shall
not impair or affect Landlord's rights and remedies under the Lease with respect
to such default by the Tenant thereunder. Agent shall have the right, but not
the obligation, to cure such default at any time prior to the expiration of the
Tenant's cure period with respect to such default, if any, it being expressly
agreed and understood that any period within which Agent may cure a default
shall run currently with (and not consecutively after) Tenant's cure period.
2. Landlord and Tenant hereby covenant and agree that so long as the
Leasehold Mortgage shall remain of record and shall not have been released, no
surrender (except a surrender upon the expiration of the term of the Lease or
upon a termination by Landlord pursuant and subject to the provisions of the
Lease) to Landlord of the Lease, or of the Premises, or any part thereof, or any
interest therein shall be valid or effective without the prior written consent
of Agent.
3. Tenant hereby agrees to reimburse Landlord (or pay directly) within
thirty (30) days after request for all attorneys' fees and out-of-pocket costs
incurred by Landlord in connection with the review of the Leasehold Mortgage,
any consent to mortgage requested by Agent, and this Amendment.
4. All notices to Agent under this Agreement shall be in writing and sent
to Agent at its address set forth below by telefacsimile, by United States
certified mail, or by reputable overnight delivery, addressed as follows:
CIT Lending Services Corporation,
as Collateral Agent
c/o The CIT Group, Inc. - Structured Finance Group
44 Whippany Road, Suite 160
Morristown, NJ 07962-4558
Attention: Vice-President - Credit
Telecopier: (973) 401-6715
Copy to: Vice-President - Legal, John P. Sirico, II
Telecopier: (973) 401-6762
5. This Amendment and the rights and obligations of the parties hereunder
shall be governed by, and shall be construed and enforced in accordance with,
the internal laws of the State of New Jersey, without regard to conflicts of
laws principles.
6. Except as expressly set forth herein, all of the terms and conditions
of the Lease shall remain unmodified and in full force and effect and are hereby
ratified and confirmed in their entirety.
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7. Tenant hereby represents to Landlord that (i) to Tenant's actual
knowledge, there is no default by Landlord or Tenant of any of their respective
obligations under the Lease, (ii) it has full power and authority to execute
this Amendment, and (iii) it has taken all action necessary to authorize the
execution of this Amendment.
8. This Amendment may be executed in counterparts with the same force and
effect as if all parties signed the same document.
9. The Lease and this Amendment contain the entire agreement of the
parties hereto, and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein or therein, shall be
of any force and effect.
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IN WITNESS WHEREOF, this Amendment has been executed and delivered as of
the date first set forth above.
LANDLORD:
BURLINGTON REALTY ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Burlington Realty Associates
Corporation, a Maryland corporation,
its sole general partner
By: /s/ Janene P. Behler
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Name: Janene P. Behler
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Title: Regional Director
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TENANT:
EQUINIX, INC., a Delaware corporation
By: /s/ Philip J. Koen
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Name: Philip J. Koen
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Title: CFO
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