FIRST AMENDMENT TO TURN KEY DATACENTER LEASE
Exhibit 10.1
THIS FIRST AMENDMENT TO TURN KEY DATACENTER LEASE (this “Amendment”) is made and
entered into as of the latest date of execution as set forth on the signature page hereof (the
“1A Effective Date”), by and between DIGITAL XXXXXX, LLC, a Delaware limited liability
company (“Landlord”), and CONSTANT CONTACT, INC., a Delaware corporation
(“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have heretofore entered into that certain Turn Key Datacenter
Lease having an effective date of December 31, 2010 (the “TKD Lease”), covering
approximately 3,600 total square feet of area (the “Premises”) located in Suite 140 (the
“Datacenter”), in that certain building located at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx (the “Building”);
WHEREAS, Landlord and Tenant have heretofore entered into that certain POP Room Rider having
an effective date of December 31, 2010 (the “POP Rider”), which amends and modifies the TKD
Lease and covers (i) two (2) one-quarter (1/4) racks in Suite 155 of the Building, and (ii) two (2)
one-quarter (1/4) racks in Suite 142 of the Building (the TKD Lease and the POP Rider are referred
to herein, collectively, as the “Lease”);
WHEREAS, any capitalized term or phrase used in this Amendment shall have the same meaning as
the meaning ascribed to such term or phrase in the Lease unless expressly otherwise defined in this
Amendment; and
WHEREAS, Landlord and Tenant desire to further modify the terms of the Lease in accordance
with the terms and conditions herein provided.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration paid by each party hereto to the other, the receipt and
sufficiency of which are hereby mutually acknowledged, Landlord and Tenant hereby agree as follows:
1. Early Access.
A. Definitions. As used herein:
(i) “Early Access” shall mean and refer to Tenant’s ability to enter Premises-A prior to the
Commencement Date and Premises-B prior to the Phase II Expansion Date, for the purposes of
inspecting same and for performing Tenant Work.
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(ii) “Early Access Date” shall mean and refer to the date upon which Landlord provides Tenant
the Early Access Notice. Landlord agrees to use commercially reasonable efforts to cause the Early
Access Date to occur on or before April 1, 2011.
(iii) “Early Access Notice” shall mean and refer to the notice from Landlord to Tenant
notifying Tenant that Landlord has advanced the Commencement Date Conditions sufficiently to allow
Tenant to engage in certain activities of Tenant Work prior to the Commencement Date.
(iv) “Early Access Period” shall mean and refer to (a) the period between the Early Access
Date and the Commencement Date, as it relates to Premises-A, and (b) the period between the Early
Access Date and the Phase II Expansion Date, as it relates to Premises-B.
(v) “Tenant Work” shall mean and refer to all installations in the Premises, other than the
completion of the Commencement Date Conditions, including the installation of Tenant’s Personal
Property.
B. License. Landlord agrees to permit Tenant and the other Tenant Parties to have Early
Access in the Premises, on and after the Early Access Date, except during the performance of
Commissioning of the Datacenter. Any such permission shall constitute a license only, conditioned
upon Tenant and Tenant’s contractors’ obtaining Landlord’s prior written consent (not to be
unreasonably withheld) with regard to each item of Tenant Work that any of such parties desire to
undertake during the Early Access Period. Notwithstanding anything in the Lease or this Amendment
to the contrary, the Early Access Period may be reduced by Landlord to the extent such Early Access
materially interferes with Landlord’s ability to complete the Commencement Date Conditions on or
before the Target Commencement Date. Tenant’s Early Access shall be subject to (and, during such
period, Tenant must comply with) all of the terms and provisions of this Lease, excepting only the
payment of Base Rent; provided, however, Tenant’s Early Access to Premises-B during Phase I shall
not affect Tenant’s obligation to pay Base Rent during the Phase I period. Additionally, Tenant
agrees that (a) Landlord’s obligations to provide services to Premises-A and/or the equipment
serving Premises-A shall commence on the Commencement Date and shall not apply during the Early
Access Period for Premises-A, (b) Landlord’s obligations to provide services to Premises-B and/or
equipment serving Premises-B shall commence on the Phase II Expansion Date and shall not apply
during the Early Access Period for Premises-B, and (c) Tenant shall be required to pay any and all
electricity charges that accrue to the Premises during the Early Access Period. For the avoidance
of doubt, Tenant agrees that Tenant will only perform Tenant Work in the Premises during the Early
Access Period, and that Tenant will not commence business operations in Premises-A prior to the
Commencement Date, nor will Tenant commence business operations in Premises-B prior to the Phase II
Expansion Date.
2. Confidentiality. Each party agrees that (i) the terms and provisions of this
Amendment are confidential and constitute proprietary information of the parties; and (ii) as such,
the terms and provisions of this Amendment are, and shall be, subject to the terms of Section 17.19
of the Standard Lease Provisions of the TKD Lease.
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3. Miscellaneous.
A. In the event that the terms of the Lease conflict or are inconsistent with those of this
Amendment, the terms of this Amendment shall govern.
B. The Lease is hereby amended as and where necessary to give effect to the express terms of
this Amendment. Except as amended by this Amendment, the terms of the Lease remain in full force
and effect.
C. This Amendment shall become effective only upon execution and delivery by both Landlord and
Tenant.
D. This Amendment may be executed simultaneously in two or more counterparts each of which
shall be deemed an original, but all of which shall constitute one and the same Amendment.
Landlord and Tenant agree that the delivery of an executed copy of this Amendment by facsimile or
e-mail shall be legal and binding and shall have the same full force and effect as if an original
executed copy of this Amendment had been delivered.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be executed on the
respective dates set forth below, to be effective as of the 1A Effective Date.
LANDLORD:
DIGITAL XXXXXX, LLC,
a Delaware limited liability company
a Delaware limited liability company
| By: | Digital Realty Trust, L. P., | |||
| a Maryland limited partnership, | ||||
| its member and manager | ||||
| By: | Digital Realty Trust, Inc., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Vice President Portfolio Management, West Region | |||
| Date: | Xxxxx 00, 0000 |
XXXXXX:
CONSTANT CONTACT, INC.,
a Delaware corporation
a Delaware corporation
| By: | /s/ Xxxx X. Xxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxx, Xx. | |||
| Title: | Senior Vice President, Engineering and Operations | |||
| Date: | March 27, 2011 |
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