Exhibit 10.94
F OURTH M ODIFICATION TO G ROUND L EASE
T HIS F OURTH M ODIFICATION TO G
ROUND L EASE (this
“ Modification ”) is made as of November 21,
2003 by and between iS TAR S AN
J OSE , LLC,
a Delaware limited liability company (“ Lessor
”), and E QUINIX
, I NC ., a
Delaware corporation (“ Lessee ”).
R
E C I T A L S
A. Lessor and Lessee entered into
that certain Ground Lease dated as of June 21, 2000 (the “
Original Lease ”), as amended by that certain First
Modification to Ground Lease dated as of September 26, 2001, that
certain Second Modification to Ground Lease dated as of March 20,
2002 (the “ Second Amendment ”), that certain
letter agreement dated September 24, 2002 (the “ Letter
Agreement ”), and that certain Third Modification to
Ground Lease dated as of September 30, 2002 (the “ Third
Amendment ”) (collectively, the “Lease”),
which Lease covers approximately 39.223 acres of unimproved real
property, located in the City of San Jose, County of Santa Clara,
State of California, as more particularly described in the Lease.
Capitalized terms used but not defined herein shall have the
meanings set forth in the Lease.
B. Concurrently with the execution
of the Original Lease, Lessor and Lessee executed a Memorandum of
Lease and Purchase Option, dated as of June 21, 2000 (the “
Original Memorandum ”), which Original Memorandum was
recorded on June 21, 2000, as Document No. 15286834 in the Official
Records of Santa Clara County, California (the “ Official
Records ”). The Original Memorandum was amended and
restated by that certain Amended and Restated Memorandum of Lease
and Purchase Option dated as of October 1, 2001 and recorded on
, 2001 as Document No.
in the Official Records.
C. Lessee has requested that Lessor
modify Section 4.1(b) of the Lease, and to make such other
modifications to the Lease as are set forth herein.
D. Lessor is willing to agree to
such changes to the Lease on the terms and conditions set forth
herein.
A
G R E E M E N T
N OW T
HEREFORE , in consideration of the agreements of Lessor
and Lessee herein contained and other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Lessor and
Lessee hereby agree to modify the Lease as follows:
1. R ENT M ODIFICATION
Notwithstanding anything to the
Contrary in the Lease, Section 4.1(b) of the Lease shall be deleted
in its entirety and replaced with the following:
“(b) Notwithstanding anything
to the contrary set forth herein:
(1) Lessor acknowledges that Lessee
has prepaid all Annual Base Rent owing for the period from October
1, 2002 through December 31, 2003 and Lessee shall have no further
obligation for Annual Base Rent due hereunder for such
period.
1
(2) During the period from January
1, 2004 through June 30, 2004, Lessee shall only be obligated to
pay on a current basis one-half of the monthly Annual Base Rent
specified pursuant to Section 4.1(a) above (representing a monthly
payment of $199,665.30), and during the period from July 1, 2004
through December 31, 2004 Lessee shall only be obligated to pay on
a current basis three-quarters of the monthly Annual Base Rent
specified pursuant to Section 4.1(a) above (representing a monthly
payment of $299,497.96). Any portion of the Annual Base Rent that
is not paid on a current basis pursuant to the provisions of this
Section 2.(b)(2) shall be deferred, shall be referred to herein as
“Deferred Annual Base Rent” and shall be paid as
provided in Sections 2.(b)(3) and (4) below.
(3) For each quarter of 2005 (e.g.
January-March (“Q1”), April-June (“Q2”),
July-September (“Q3”) and October-December
(“Q4”)), Lessee shall pay to Lessor within thirty (30)
days after the end of such quarter an additional sum (the “
Cash Flow Reimbursement ”) equal to the lesser of (x)
the cumulative accrued but unpaid amount of Deferred Annual Base
Rent, and (y) an amount equal to 15% of Lessee’s Aggregate
Excess Cash, as defined below, for the applicable
