AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.3
AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
This Amendment No. 1 to Equity Distribution Agreement (this “Amendment”) is entered into as of October 27, 2023, by and among Equinix, Inc., a Delaware corporation (the “Company”), on the one hand, and Citigroup Global Markets Inc. (“Citigroup”), BofA Securities, Inc. (“BofA”), Deutsche Bank Securities Inc. (“DB”), Xxxxxxx Xxxxx & Co. LLC (“Goldman”), HSBC Securities (USA) Inc. (“HSBC”), ING Financial Markets LLC (“ING”), X.X. Xxxxxx Securities LLC (“JPM”) and Santander US Capital Markets LLC, as successor to Santander Investment Securities Inc. (“Santander”) (each in its capacity as a “Manager” under the Equity Distribution Agreement (as defined below)), Citibank, N.A., Bank of America, N.A., Deutsche Bank AG, London Branch, Goldman, HSBC Bank USA, National Association, JPMorgan Chase Bank, National Association, New York Branch and Banco Santander, S.A. (each in its capacity as purchaser under any Forward Contract, as a “Forward Purchaser” under the Equity Distribution Agreement (as defined below)) and Citigroup, BofA, DB, Goldman, HSBC, JPM and Santander (each, as agent for its affiliated Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares, as a “Forward Seller” under the Equity Distribution Agreement (as defined below)), on the other hand. All capitalized terms used herein shall have the meanings set forth in the Equity Distribution Agreement (as defined below), unless otherwise indicated.
RECITALS
WHEREAS, the Company, the Managers, certain of the Forward Purchasers and certain of the Forward Sellers are parties to that certain Equity Distribution Agreement, dated November 4, 2022 (the “Original Equity Distribution Agreement” and, as amended, supplemented or otherwise modified from time to time, the “Equity Distribution Agreement”); and
WHEREAS, the parties hereto desire to amend the Original Equity Distribution Agreement as set forth herein to (a) acknowledge the succession by Santander US Capital Markets LLC to the rights and obligations of Santander Investment Securities Inc. as a Manager under the Equity Distribution Agreement, (b) add Banco Santander, S.A. as a Forward Purchaser under the Equity Distribution Agreement, (c) add Santander US Capital Markets LLC as a Forward Seller under the Equity Distribution Agreement, and (d) amend certain definitions.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto agree as follows:
1. Parties. The Original Equity Distribution Agreement is hereby amended to change every reference to “Santander Investment Securities Inc.” to “Santander US Capital Markets LLC”.
2. Joinder.
(a) By executing and delivering this Amendment, Santander US Capital Markets LLC agrees to become a party to, and be bound by, and to comply with, the provisions of the Equity Distribution Agreement as a “Manager” under the Equity Distribution Agreement in the same manner as if Santander US Capital Markets LLC were an original signatory to such agreement as a Manager. For purposes of Section 10 of the Original Equity Distribution Agreement, the address for Santander US Capital Markets LLC is: 000 Xxxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx XX 00000.
(b) By executing and delivering this Amendment, Banco Santander, S.A. agrees to become a party to, and be bound by, and be obligated to comply with, the provisions of the Equity Distribution Agreement as a “Forward Purchaser” under the Equity Distribution Agreement in the same manner as if Banco Santander, S.A. were an original signatory to such agreement as a Forward Purchaser. For purposes of Section 10 of the Original Equity Distribution Agreement, the address for Banco Santander, S.A. is: Ciudad Grupo Santander - Edificio Dehesa, Xxxxxx 0, Xxxx. Cantabria, s/n, 28660 - Boadilla del Monte – Madrid, Spain, Attention: Swaps Department, with a copy to Santander US Capital Markets LLC, 000 Xxxxxxxxxxx Xxxxx – Xxxxx 000, Xxxxxx, XX 00000, Attention: Middle Office.
(c) By executing and delivering this Amendment, Santander US Capital Markets LLC agrees to become a party to, and be bound by, and to comply with, the provisions of the Equity Distribution Agreement as a “Forward Seller” under the Equity Distribution Agreement in the same manner as if Santander US Capital Markets LLC were an original signatory to such agreement as a Forward Seller. For purposes of Section 10 of the Original Equity Distribution Agreement, the address for Santander US Capital Markets LLC is: 000 Xxxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx XX 00000.
3. Amendment to Definitions. The definition of “Master Forward Confirmation” is hereby amended by deleting the existing definition in its entirety and substituting the following therefor:
“Master Forward Confirmation” means any Master Confirmation, entered into on or after November 4, 2022, by and between the Company and any Forward Purchaser, including all provisions incorporated by reference therein, substantially in the form attached as Exhibit C.
4. Effectiveness. This Amendment shall take effect, as of the date first written above, upon the execution and delivery of this Amendment by the Company and each Manager, Forward Seller and Forward Purchaser named in the first paragraph hereof.
5. No Other Amendments. Except as expressly amended by this Amendment, the terms and provisions of the Equity Distribution Agreement shall remain in full force and effect.
6. Conflicting Terms. Wherever the terms and conditions of this Amendment and the terms and conditions of the Original Equity Distribution Agreement are in conflict, the terms of this Amendment shall be deemed to supersede the conflicting terms of the Original Equity Distribution Agreement.
7. Headings. The Section headings in this Amendment have been inserted as a matter of convenience of reference and are not a part of this Amendment.
8. Governing Law. This Amendment and the Equity Distribution Agreement, and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating thereto, directly or indirectly, shall be governed by, and construed in accordance with, the internal laws of the State of New York.
9. Counterparts. This Amendment may be signed by the parties in one or more counterparts which together shall constitute one and the same agreement among the parties. Counterparts may be delivered via facsimile, electronic mail (including via xxx.xxxxxxxx.xxx and any other electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have executed and delivered this Amendment No. 1 to Equity Distribution Agreement as of the date first written above.
| EQUINIX, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | ||
| Title: Chief Financial Officer | ||
[Signature Page – Amendment No. 1 to Equity Distribution Agreement]
ACCEPTED as of the date first above written
CITIGROUP GLOBAL MARKETS INC.
As Manager and Forward Seller,
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Director |
CITIBANK, N.A.
As Forward Purchaser,
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx Title: Authorized Signatory |
ACCEPTED as of the date first above written
BOFA SECURITIES, INC.
As Manager and Forward Seller,
| By: | /s/ Xxxx Xxx | |
| Name: Xxxx Xxx Title: Managing Director |
BANK OF AMERICA, N.A.
As Forward Purchaser,
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx Title: Managing Director |
ACCEPTED as of the date first above written
DEUTSCHE BANK SECURITIES INC.
As Manager and Forward Seller, and as agent for Deutsche Bank AG, London Branch,
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx Title: Managing Director |
| By: | /s/ Xxx Xxxxxxxx | |
| Name: Xxx Xxxxxxxx Title: Director |
DEUTSCHE BANK AG, LONDON BRANCH
As Forward Purchaser,
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx Title: Managing Director |
| By: | /s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx Title: Director |
ACCEPTED as of the date first above written
XXXXXXX XXXXX & CO. LLC
As Manager, Forward Purchaser and Forward Seller,
| By: | /s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx Title: Managing Director |
ACCEPTED as of the date first above written
HSBC SECURITIES (USA) INC.
As Manager and Forward Seller,
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx Title: Managing Director |
HSBC BANK USA, NATIONAL ASSOCIATION
As Forward Purchaser,
| By: | /s/ Xxxxxxx Xxxxx-Xxxxxx | |
| Name: Xxxxxxx Xxxxx-Xxxxxx Title: AVP I Derivatives Documentation Supervisor I HSBC Bank USA |
ACCEPTED as of the date first above written
ING FINANCIAL MARKETS LLC
As Manager,
| By: | /s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx Title: Director |
| By: | /s/ Xxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxx Title: Director |
ACCEPTED as of the date first above written
X.X. XXXXXX SECURITIES LLC
As Manager and Forward Seller,
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Managing Director |
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
As Forward Purchaser,
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Managing Director |
ACCEPTED as of the date first above written
SANTANDER US CAPITAL MARKETS LLC
As Manager,
| By: | /s/ Xxxxx Xxx | |
| Name: Xxxxx Xxx Title: Managing Director |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Managing Director |
BANCO SANTANDER, S.A.
As Forward Purchaser,
| By: | /s/ Xxx Xxxxxx Xxxx | |
| Name: Xxx Xxxxxx Xxxx Title: Authorized Signatory |
| By: | /s/ Xxxxx Xxxxxxxxx Xxx | |
| Name: Xxxxx Xxxxxxxxx Xxx Title: Authorized Signatory |
SANTANDER US CAPITAL MARKETS LLC
As Forward Seller,
| By: | /s/ Xxxxx Xxx | |
| Name: Xxxxx Xxx Title: Managing Director |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx Title: Managing Director |
