EXHIBIT 10.70
EXHIBIT A
Lease Termination Agreement
This Lease Termination
Agreement (this “Agreement”) is dated as of
July 2, 2007 (“ Effective Date ”),
by and between NAP of the
Americas West, Inc., a Florida corporation (together
with its successors and assigns, “ Terremark
”) and Equant
Inc. , a Delaware corporation and successor-in-interest
to Global One Communications L.L.C., a Delaware limited liability
company (“ Tenant ”).
1. Recitals
A. DPJV II, LLC, BDP
Partners, L.P., EJLJ Mathews Family Partners, L.P., and EGP
Partners, L.P., collectively as successors in interest to Effingham
Partners, L.L.C., a California limited liability company (“
Landlord ”) are the current owners of certain
real property located in Santa Clara County, California commonly
known as 2970-3000 Corvin Drive, Santa Clara, California (the
“ Property ”).
B . Pursuant to that
certain Lease dated for reference purposes only August 21,
2000 (the “ Lease ”), Tenant currently
leases from Landlord a portion of the Property located at 3000
Corvin Drive, Santa Clara, California, which portion consists of
the entire rentable area of a free-standing industrial building
containing approximately 24,003 square feet (the “
Premises ”).
C. Landlord and
Terremark have entered into that certain Real Property Purchase
Agreement dated as of March 9, 2007 (as amended from time to
time, the “ PSA ”), pursuant to which
Landlord has agreed to sell and Terremark has agreed to purchase,
the Property. Upon the closing of the purchase and sale of the
Property pursuant to the PSA (the “ Closing
Date ”), Terremark will succeed Landlord as the
landlord under the Lease.
D. On and subject to
the condition that Terremark consummate the purchase of the
Property, Terremark desires to obtain physical possession of the
Premises on the Closing Date, and Tenant desires to terminate its
ongoing obligations under the Lease. Accordingly, conditioned on
such purchase Terremark and Tenant have agreed to amend the Lease
to provide for a termination of all future rights and obligations
under the Lease effective as of the Closing Date, a termination of
Tenant’s right to occupy the Premises as of such time, and a
mutual release of both parties, all upon the terms and conditions
set forth hereinafter. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings assigned to them in
the Lease.
Agreement
Now Therefore, for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Terremark and Tenant hereby agree as
follows:
1. Recitals
Incorporated. The foregoing recitals are incorporated herein by
reference as though set forth at length and each of the parties
agrees that it is not aware of any information that would indicate
that said recitals are inaccurate.
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2. Lease Termination .
Effective as of the Closing Date, and subject to satisfaction of
the Conditions Precedent defined and set forth in Section 3
below,
2.1 The Term of the Lease shall be amended so that the Lease
shall terminate and expire on the Closing Date (the “
Termination Date ”); and
2.2 Except as specifically provided to the contrary herein,
at 11:59 p.m. on the Closing Date, the Lease and all of
Tenant’s and Terremark’s (as successor in interest to
Landlord) respective rights and obligations under the Lease will
terminate, including, without limitation, Tenant’s right to
possession of the Premises and any and all Options to Extend the
Lease. Notwithstanding the preceding sentence to the contrary:
(a) Tenant does agree to remain responsible through the
Termination Date for its obligations under the Lease, including
without limitation, the payment of all monies due Landlord
thereunder , the payment for insurance under Paragraph 8.1 of
the Lease, and the payment of Real Property Taxes under
Paragraph 53 of the Lease, and (b) Terremark as successor
in interest to Landlord shall have all the rights and remedies with
respect to such obligations as set forth in the Lease to the extent
those rights and remedies are not pursued against Tenant by the
Landlord.
3. Conditions . This
Agreement is specifically conditioned upon satisfaction of the
following conditions (the “ Conditions
Precedent ”):
3.1 Landlord’s surrender and delivery to First
American Title Insurance Company, 1737 North First Street,
Suite 500, San Jose, California 95112, Attention: Liz Zankich,
Fax: (408) 451-7928 (the “ Escrow Agent
”) prior to the Closing Date of the letter of credit issued
by Citibank, N.A. pursuant to Paragraph 52 of the Lease, and
Landlord’s execution and delivery to Escrow Agent prior to
the Closing Date of any documents reasonably required by Citibank
to effect the cancellation of such letter of credit, provided such
documents are provided to Landlord no later than ten (10) days
prior to the Closing Date (it being understood and acknowledged
that such letter of credit and documents shall be released to
Tenant immediately following the Closing); and
3.2 Closing of the escrow for the sale of the Property to
Terremark pursuant to the PSA (the “ Closing
”); and
3.3 Landlord’s execution of a general release (“
Landlord’s Release ”) in favor of Tenant,
in a form acceptable to Tenant in its sole discretion, with respect
to all of Tenant’s obligations under the Lease other than
Tenant’s obligations to remain responsible through the
Termination Date for its obligations under the Lease, including
without limitation, the payment of all monies due Landlord
thereunder, the payment for insurance under Paragraph 8.1 of
the Lease, and the payment of Real Property Taxes under
Paragraph 53 of the Lease. Terremark shall cause Landlord or
Escrow Agent to provide to Tenant’s counsel, Criton
Constantinides, Orange Business Services, 400 Galleria Parkway,
Atlanta, GA 30339, Fax: (770) 955-5029, e-mail:
criton.constantinides@orange-ftgroup.com, no less than twenty-one
(21) days prior to the Closing Date a copy of the
Landlord’s Release fully executed by Landlord, the original
of which will be provided to Tenant immediately following the
Closing. Tenant hereby agrees that it shall execute the
Landlord’s Release and deliver same to the Escrow Agent no
less than twenty-one
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(21) days prior to the Closing Date, and Tenant’s
signature shall be held in escrow by the Escrow Agent pending the
Closing, at which point it shall be released to Landlord.
Tenant hereby acknowledges that
Tenant’s delivery of (i) the funds described in
Section 5.1 and (ii) the Note and Letter of Credit
described in Section 5.2 are conditions precedent to the
Closing. Terremark hereby acknowledges and agrees that
Landlord’s execution and delivery to Tenant of the documents
described in Section 3.1 and 3.3 above are conditions
precedent to Tenant’s issuance of the Note and Letter of
Credit.
4. Lease Surrender .
Tenant agrees to surrender the Premises to Terremark on the
Termination Date. Terremark shall provide Tenant’s counsel
with written notification of the Termination Date (by electronic
mail or facsimile with a copy to follow promptly via overnight
delivery by a generally recognized carrier, it being understood
that such notification shall be deemed given upon the actual
receipt of the same by Tenant’s counsel) no less than thirty
(30) days prior to such date. Notwithstanding anything in the
Lease to the contrary, Terremark agrees to accept surrender of the
Premises in its present condition and configuration as of the
Effective Date, and Tenant shall not be required to remove any
alterations or improvements to the Premises, or otherwise perform
any maintenance, cleaning, repair, or restoration work of any kind
in connection with the surrender of the Premises.
5. Termination Fee. As
partial consideration for the early termination of the Lease, on
the Termination Date, Tenant agrees to pay Terremark an amount
equal to the aggregate sum of Two Million Seven Hundred Thousand
and No/100 Dollars ($2,700,000.00) (the “ Termination
Fee ” ), subject to reduction as set forth
below, and payable as follows:
5.1 Tenant shall pay Terremark on the Closing Date (or, if
reasonably requested by Terremark or Escrow Agent in order to
facilitate the Closing, on the day immediately preceding the
Closing Date) One Million and No/100 Dollars ($1,000,000.00) in
immediately available funds through the escrow established by the
Escrow Agent for the Closing; provided, however , that such
$1,000,000.00 payment shall be reduced by an amount equal to the
aggregate total of all rent payable by Tenant under the Lease for
the period commencing on July 1, 2007 and ending on the
Closing Date and for any utilities and Real Property Taxes paid by
Tenant with respect to any period beyond the Closing Date;
and
5.2 Tenant shall pay Terremark the balance of One Million
Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) in two
equal installments of Eight Hundred Fifty Thousand and No/100
Dollars ($850,000.00), pursuant to the terms of a secured
promissory note substantially in the form attached hereto as
Exhibit A (the “ Note
”), which Note shall be secured by the Letter of Credit
described in Section 6. The two installments will be payable
March 14, 2008 and March 16, 2009. The Note and Letter of
Credit shall be delivered by Tenant into the escrow established for
the Closing on the Closing Date (or, if reasonably requested by
Terremark or Escrow Agent in order to facilitate the Closing, on
the day immediately preceding the Closing Date).
The Termination Fee is the amount
which the parties have negotiated and agreed upon as a fee or
compensation which is intended as their fair estimate of losses and
damages to be suffered by Terremark in connection with early
termination of the Lease, which are difficult to
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calculate and which Terremark may sustain due to the corresponding
advance of the Expiration Date (as defined in the Lease), including
the unamortized portion of any concessions, commissions, allowances
and other expenses incurred by Terremark in connection with the
Premises leased by Tenant under the Lease, and Terremark’s
loss of future rent in connection therewith. Such amount shall be
Terremark’s earned fee and liquidated damages for such
estimated losses and damages, whether such losses and damages in
fact are greater or less than the applicable amount of the
Termination Fee.
6. Letter of Credit .
Tenant shall deliver to Terremark, as collateral for the full and
faithful performance by Tenant of all of its obligations under the
Note, an irrevocable and unconditional negotiable letter of credit,
in the form and containing the terms required herein, payable at
the offices of Citibank’s Trade Finance Department, Tampa,
Florida in favor of Terremark or its assignee issued by a solvent
nationally recognized bank with a long term rating of BBB or
higher, under the supervision of the Superintendent of Banks of the
State of California, or a National Banking Association, in the
amount of One Million Seven Hundred Thousand and No/100 Dollars
($1,700,000.00) (the “ Letter of Credit
”). The Letter of Credit shall be (a) at sight and
irrevocable and unconditional, (b) maintained in effect,
whether through replacement, renewal or extension, until payment in
full satisfaction of all amounts owed under the Note has been made
(the “ Letter of Credit Expiration Date
”) and Tenant shall deliver a new Letter of Credit or
certificate of renewal or extension to Terremark at least thirty
(30) days prior to the expiration of the Letter of Credit,
without any action whatsoever on the part of Terremark,
(c) subject to the Uniform Customs and Practices for
Documentary Credits (1993-Rev) International Chamber of Commerce
Publication #500, (d) acceptable to Terremark in its
reasonable discretion, (e) permit partial draws, and
(f) non-assignable except (i) by operation of law,
(ii) by Terremark to Landlord, or (iii) with the prior
consent of Tenant. In addition to the foregoing, the form and terms
of the Letter of Credit (and the bank issuing the same) shall
provide, among other things, in effect that: (1) Terremark, or
its then managing agent, shall have the right to draw down an
amount up to the face amount of the Letter of Credit upon the
presentation to the issuing bank of Terremark’s (or
Terremark’s then managing agent’s) statement that such
amount is due to Terremark under the terms of the Note, it being
understood that if Terremark or its managing agent be a limited
liability company, corporation, partnership or other entity, then
such statement shall be signed by a managing member (if a limited
liability company) an officer (if a corporation), a general partner
(if a partnership), or any authorized party (if another entity);
and (2) the Letter of Credit will be honored by the issuing
bank without inquiry as to the accuracy thereof and regardless of
whether the Tenant disputes the content of such statement; and
(3) in the event of Terremark’s assignment of the Note
(subject to Paragraph 8 of the Note), Terremark shall transfer
the Letter of Credit (as permitted above in subsection (f) of
this Section 6, in whole or in part (or cause a substitute
letter of credit to be delivered, as applicable), to the
transferee, and thereupon Terremark shall, without any further
agreement between the parties, be released by Tenant from any
liability for the acts or omissions of the transferee with respect
to the Letter of Credit, and it is agreed that the provisions
hereof shall apply to every transfer or assignment of the whole or
any portion of said Letter of Credit to a new holder of the Note..
Tenant hereby acknowledges and agrees that Terremark is entering
into this Termination Agreement in material reliance upon the
ability of Terremark to draw upon the Letter of Credit upon the
occurrence of any default on the part of Tenant under the Note.
Tenant further acknowledges and agrees that if Terremark cannot
draw upon the Letter of Credit within the times and in the manner
as anticipated by Terremark herein, Terremark may suffer
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irreparable damage, harm and injury. Should the Letter of Credit
need to be amended, modified or reissued, Terremark and Tenant
hereby covenant and agree to cooperate with one another to promptly
effectuate any such amendments, modifications and new issuances,
including without limitation, executing and submitting to the
issuing bank any and all documents or instruments as may be
reasonably required to effectuate same. Each and every time there
is a change in the identity or address of the parties, including
without limitation, any change in the identity of the holder of the
Note due to a permitted assignment of the Note to any other party,
person or entity, the Letter of Credit shall promptly be amended or
reissued to reflect such changes and the parties hereby agree to
execute and submit to the issuing bank such further applications,
documents and instruments as may be necessary to effectuate same.
It is the intention of the parties that each and every successor
and permitted assign of both Terremark and Tenant be bound by and
subject to the terms and provisions of this Section 6.
Terremark may not, at any time except as set forth in subsection
(f) of this Section 6, assign all or any portion of its
interest in and to the Letter of Credit to another party, person or
entity. Tenant covenants and warrants that it will neither assign
nor encumber the Letter of Credit or any part thereof and that
neither Terremark nor its successors or permitted assigns will be
bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance. Without limiting the generality of the
foregoing, if the Letter of Credit expires earlier than the Letter
of Credit Expiration Date, Terremark will accept a renewal thereof
or substitute letter of credit (such renewal or substitute letter
of credit to be in effect not later than thirty (30) days
prior to the expiration thereof), which shall be irrevocable and
automatically renewable as above provided through the Letter of
Credit Expiration Date upon the same terms as the expiring letter
of credit. However, if the Letter of Credit is not timely renewed
or a substitution letter of credit is not timely received, or if
Tenant fails to maintain the Letter of Credit in the amount and
terms set forth in this Section 6, Terremark shall have the
right to present such Letter of Credit to the issuing bank in
accordance with the terms of this Section 6, and the entire
sum evidenced thereby shall be paid to and held by Terremark as
collateral for performance of all of Tenant’s obligations
under the Note and for all losses and damages Terremark may suffer
as a result of any default by Tenant under the Note. If there shall
occur a default under the Note,
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