EXHIBIT 4.20
(Translation)
LAND TRANSFER AGREEMENT
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Stamp tax is not applied
pursuant to Article 5.2 of
Stamp Duty Law
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Land Transfer Agreement
1. Land to be Transferred
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Location ▇▇-▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ Prefecture
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Lot Area 25,000.10 Land Category Curtilage
square meter
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Description
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2. Transfer Price by Installment (A+B): 9,408,237,420 yen
A. Transfer Value by Immediate Payment: 8,000,032,000 yen
(Value per square meter: 320,000 yen)
1. Initial Payment: 1,600,006,400 yen
2. Total amount of installment principal: 6,400,025,600 yen
B. Total amount of Installment Interest: 1,408,305,420 yen
This Land Transfer Agreement is entered into by and between Urban Development
Corporation as the assignor (hereinafter referred to as the "Assignor") and
Crosswave Communications Inc. as the assignee (hereinafter referred to as the
"Assignee") under the following terms and conditions. In witness whereof, the
Assignor and the Assignee have caused this Agreement to be executed in two (2)
originals by affixing their names and seals hereto, the Assignor and the
Assignee respectively retaining one copy each.
September 29th, 2000
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Assignor:
Rei Iguchi
Manager of Kanagawa Regional Branch
Urban Development Corporation
3, 3-ban, 2-chome, Minatomirai, Nishi-ku, Yokohama City,
Kanagawa
Assignee:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Representative Director
Crosswave Communications Inc.
▇▇-▇▇▇▇▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
▇
Article 1 (General Provisions)
1. The Assignor shall transfer the land first specified above
(hereinafter referred to as the "Land") under the terms and conditions
set forth in this Agreement, and the Assignee shall accept and pay for
such transfer by the method of installment payment.
2. The Assignee shall use the Land as the site of the business facility
specified below (hereinafter referred to as the "Facility").
Name of the Facility: Data Center
Article 2 (Transfer Price)
The transfer price of the Land by installment payments pursuant to this
Agreement (hereinafter referred to as the "Transfer Price") shall be as
first specified above.
Article 3 (Payment of Transfer Price)
1. The Assignee shall make an initial payment and payments of principal
and interest by installments to the Assignor by the method determined
by the Assignor, and such payment amounts and due dates shall be as
set forth in the price list attached hereto.
2. The amount of the installment interest shall be the amount calculated
in a manner determined by the Assignor based on the annual interest
rate of 2.85%.
3. Notwithstanding paragraph 1 of this Article, the Assignee may make a
prepayment of the remaining balance of the installment payments, in
full or in part, at any time during the payment period. The amount of
such prepayment and the payment method of such balance amount, etc.
shall be as determined by the Assignor.
Article 4 (Timing of Delivery and Registration of Transfer of Title)
The Assignor shall transfer the title of the Land and deliver the same to
the Assignee simultaneously at the
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time of execution of this Agreement.
Article 5 (Establishment of Right of Pledge)
Simultaneously at the time of transfer of title of the Land, to secure the
Assignor's claim for payment of the remaining balance of the Transfer
Price, the Assignee shall establish the first mortgage on the Land for a
claim amount of equal to such remaining balance.
Article 6 (Approval of Construction Plan of Facility)
With respect to the construction of the Facility on the Land, the Assignee
shall submit the construction plan of the Facility (hereinafter referred to
as the "Construction Plan of the Facility") to the Assignor in advance in a
manner determined by the Assignor and receive the Assignor's approval. The
same shall apply when the Assignee intends to alter such plan.
Article 7 (Obligation of Construction etc.)
1. The Assignee shall construct the Facility following the
Construction Plan of the Facility within five (5) years of the date of
execution of this Agreement and shall commence and continue its
business operations at the Facility after the completion of said
construction; provided, however, that if the Construction Plan of the
Facility is divided into separate plans based on the construction
period, the Assignee shall construct the Facility as per such
construction period based plans specified in the Construction Plan of
the Facility.
2. The Assignee shall not construct any buildings on the Land
except for the Facility (and its annex buildings). The foregoing,
however, does not apply in the event the Assignor gives its prior
approval.
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3. The Assignee shall construct the Facility in compliance with
the Building Standards Law (Law No. 201, 1950) and other applicable
laws and regulations of Japan.
Article 8 (Acceptance of Loss Resulting from Partial Incompletion of Urban
Development)
In the event that the urban development business performed by the
Assignor is partially incomplete, the Assignee shall accept the loss
resulting from such incompletion.
Article 9 (Matters Subject to Assignor's Approval)
In case the Assignee intends to commit any of the following during the
period commencing from the date of execution of this Agreement until the
date of the Assignee's completion of payment of the Transfer Price (in case
the Assignee completes its payment of the Transfer Price within seven (7)
years of the date of execution hereof, said period shall be seven (7) years
after such date of execution), the Assignee (and the other party in the
event of item 1) shall receive prior approval from the Assignor:
1. transfer the title of the Land, in full or in part, or establish or
transfer any rights as a security, such as surface rights, rights of
pledge, mortgages, etc., or any rights for use and earnings, such as rights
by loan for use, tenancy, etc.;
2. change the original form of the Land to an extent beyond that which
is normally necessary as a result of the construction of the Facility; or
3. not continue its operation of business after completion of
construction of the Facility pursuant to Article 7.1 hereunder.
Article 10 (Obligation of Notice to Assignor)
In case any of the following occurs with respect to
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the Assignee during the period commencing from the date of execution of
this Agreement until the date of completion of payment of the Transfer
Price (in case the Assignee completes its payment of the Transfer Price
within seven (7) years of the date of execution hereof, said period shall
be seven (7) years after such date of execution), the Assignee (including
its heirs, legal representative, etc.) shall provide notice to the Assignor
of such occurrence immediately:
1. dissolution, merger, or suspension, termination, or
transference of its business;
2. change of its name, representative, address, or the location
of its main office;
3. any petition for attachment due to delinquency in payment,
compulsory execution, temporary attachment, temporary injunction, or
auction is filed against it, or the Assignee files any petition for
commencement of rehabilitation proceedings;
4. any petition for commencement of company arrangement or
special liquidation is filed by or against the Assignee, or any order
of commencement of the same is given by notification;
5. any petition for commencement of enforcement of enterprise
security interest, bankruptcy, or commencement of reorganization
proceedings is filed by or against the Assignee;
6. the title of the Land or the Facility is transferred by
general succession;
7. the Land is expropriated or used pursuant to the provisions of
applicable laws and regulations; or
8. the Land is significantly impaired.
Article 11 (Assignor's Demand of Lump Sum Payment)
In the event that the Assignor deems that any of the
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following has occurred with respect to the Assignee during the period
commencing from the date of execution of this Agreement until the
completion of payment of the Transfer Price, the Assignor may demand a lump
sum payment of the resulting balance of the Transfer Price (excluding the
amount equal to installment interest accrued from the day following the
date of such claim) from the Assignee:
1. an installment payment is delayed for three (3) months or more; or
2. any event in items 3, 4, 5, or 7 of the preceding Article occurs.
Article 12 (Assignor's Right to Terminate Agreement, etc.)
1. In the event the Assignor deems that any of the following has
occurred with respect to the Assignee, the Assignor may terminate this
Agreement without providing any notice to the Assignee, or may repurchase
the Land:
(1) the construction of the Facility is not completed within the
period provided for in Article 7.1 hereunder;
(2) the Assignee accepts the transfer of the Land by committing an
unethical act with regard to its application, such as making a false
statement on the application form, etc.;
(3) the Land is used for any purpose other than as the site of the
Facility;
(4) the Assignee commits any act listed in Article 9 hereunder without
obtaining the approval of the Assignor as provided for in the same Article;
(5) any of items 3, 4, or 7 of Article 10.1 occurs to the Assignee, or
when a dissolution, suspension, termination of, or transfer of the
Assignee's business occurs, and if deemed particularly necessary by the
Assignor;
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(6) the Assignor demands a lump sum payment pursuant to the provisions
of the preceding Article, and the amount in relation to such demand is not
paid by the due date designated by the Assignor; or
(7) any other events causing a breach of this Agreement occur.
2. The term in which the Assignor may terminate this Agreement
pursuant to the preceding paragraph shall be during the period commencing
from the date of execution of this Agreement until the date of the
completion of the Assignee's payment of the Transfer Price (in case the
Assignee completes its payment of the Transfer Price within seven (7) years
of the date of execution hereof, said period shall be seven (7) years after
such date of execution).
3. The term in which the Assignor may repurchase the Land pursuant to
the provisions of paragraph 1 of this Article shall be seven (7) years from
the date of execution of this Agreement.
4. In the event that the Assignor terminates this Agreement or
repurchases the Land pursuant to the provisions of paragraph 1 of this
Article, the Assignor shall return to the Assignee the amount already
received from the Assignee as the Transfer Price, and the Assignee shall
immediately restore the Land to its original state as at the time of
execution of this Agreement and return the same to the Assignor in a manner
determined by the Assignor. The amount returned by the Assignor to the
Assignee shall bear no interest.
5. The costs required to restore the Land to its original state
pursuant to the provision of the preceding paragraph shall be borne by the
Assignee.
Article 13 (Obligation of Payment of Fees for Use Due to Termination of
Agreement, etc.)
1. In the event that the Assignor terminates this Agreement or
repurchases the Land pursuant to the provisions of paragraph 1 of the
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preceding Article, the Assignee shall pay the Assignor, in a manner
determined by the Assignor, the amount equal to the fees for use
accrued from the month which contains the date of execution of this
Agreement up to the month which contains the date of the Assignee's
return of the Land to the Assigner pursuant to the provisions of
paragraph 4 of the preceding Article.
2. The annual amount of the fees for use described in the
preceding paragraph shall be the amount obtained by multiplying the
immediate Transfer Price of the Land first specified above
(hereinafter referred to as the "Immediate Transfer Price") by the
ratio of 6%, and in the event there are any fractional figures less
than one (1) year, the monthly fee for use shall be the amount
obtained by multiplying said annual amount by one twelfth.
Article 14 (Payment of Penalty)
1. In the event that the Assignor terminates this Agreement or
repurchases the Land pursuant to the provisions of Article 12.1
hereunder, the Assignee shall pay the Assignor, in a manner determined
by the Assignor, an amount equal to 20% of the Immediate Transfer
Price as a penalty (if said amount contains any fractional amount less
than 1,000 yen, such fractional amount shall be rounded up to the
nearest 1,000 yen) in addition to an amount equal to the fees for use
described in the preceding Article.
2. In the event that the Assignor terminates this Agreement or
repurchases the Land pursuant to the provisions of Article 12.1
hereunder, and if the monetary amount resulting from damages suffered
by the Assignor due to such termination or repurchase exceeds the
total sum of the penalty
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prescribed in the preceding paragraph plus the amount equal to the
fees for use described in the preceding Article, the Assignee shall
pay the Assignor, upon the request of the Assignor, an amount equal to
such excess amount.
Article 15 (Delay Interest)
In the event of a delay in the performance of the Assignee's
monetary obligation, the Assignee shall pay the Assignor delinquent
charges with respect to such delayed amount, which shall be calculated
based on the rate of 14.6% per annum (on a 365-day year basis) in
proportion to the number of days during the period in which such delay
occurs.
Article 16 (Offset)
In the event that the Assignor terminates this Agreement or
repurchases the Land pursuant to the provisions of Article 12.1
hereunder, the Assignor shall offset the obligation of money payable
by the Assignee to the Assignor, such as the fees for use, penalties,
and other fees, against the obligation of money payable by the
Assignor to the Assignee with respect to the corresponding amounts.
Article 17 (Consultation Regarding Plan of Facility)
The Assignee shall thoroughly consult with the Assignor and the
City of Yokohama about the Construction Plan of the Facility.
Article 18 (Measures Against Troubles of Radio Waves etc.)
The Assignee shall pursue measures at its own responsibility with
regard to any trouble caused by radio waves to the surrounding areas
resulting from
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the construction of the Facility.
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Article 19 (Use of Cable TV)
The Assignee shall receive television broadcasting through the
cable television services.
Article 20 (Inspection on Performance of Agreement, etc.)
The Assignee shall extend its cooperation when the Assignor
conducts an inspection with respect to the use of the Land or when it
requests that the Assignee report with respect to the same.
Article 21 (Registration)
1. The Assignor shall register, immediately after the execution
hereof, the transfer of the title of the Land, the establishment of
the mortgage, and the special agreement of repurchase pursuant to this
Agreement, and the Assignee shall cooperate with the Assignor on such
registration.
2. The costs required for the registration of the transfer of the
title and the establishment of the mortgage provided for in the
preceding paragraph shall be borne by the Assignee, and the costs
required for the registration of the special agreement of repurchase
provided for in the same shall be borne by the Assignor.
Article 22 (Responsibility for Taxes and Public Charges)
1. For the taxes and public charges imposed upon the Assignor
with respect to the Land, such as fixed assets taxes, city planning
taxes, and other charges, and according to a calculation on a monthly
basis assuming April 1st of the year of execution of this Agreement
(or the April 1st of the following year if such execution date occurs
during the period from January 1st until March 31st of such following
year)
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to be the commencement date for said calculation, the Assignor shall
be responsible for the obligation of said taxes and public charges for
the period from the month which contains such commencement date to the
month which contains the date of execution of this Agreement, while
the Assignee shall be responsible for the same from the month
following the date of such execution and thereafter.
2. The Assignee shall pay the Assignor the Assignee's share of
the taxes and public charges pursuant to the provision of the
preceding paragraph by such method and due date as determined by the
Assignor.
Article 23 (Place to Receive Repayment Money)
If there is any obligation of money to be returned by the
Assignor to the Assignee, the Assignee shall receive such money at a
place designated by the Assignor.
Article 24 (Jurisdiction etc.)
If any doubts arise with respect to this Agreement, the Assignor
and the Assignee shall consult with each other. Any disputes between
the Assignor and the Assignee with regard to any rights and
obligations stipulated herein shall be subject to the jurisdiction of
the Yokohama District Court of Japan.
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Price List
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Due Date Amount Due
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Initial Payment Date of Execution 1,600,006,400 yen
of Agreement
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Installment Interest 02/25/2001 74,459,480 yen
(1st Due Date)
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08/25/2001 91,210,360 yen
(2nd Due Date)
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02/25/2002 91,210,360 yen
(3rd Due Date)
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08/25/2002 91,210,360 yen
(4th Due Date)
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02/25/2003 91,210,360 yen
(5th Due Date)
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08/25/2003 91,210,360 yen
(6th Due Date)
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02/25/2004 91,210,360 yen
(7th Due Date)
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08/25/2004 91,210,360 yen
(8th Due Date)
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(Continued on the next page)
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Due Date Amount Due
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Installment Interest 02/25/2005 91,200,360 yen
(9th Due Date)
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Installment Principal 08/25/2005 91,200,360 yen
and Installment Interest (10th Due Date)
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02/25/2006 Installment Principal
(11th Due Date) 599,356,870 yen
Installment Interest
91,949,960 yen
(Total 691,306,830 yen)
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08/25/2006 Installment Principal
(12th Due Date) 608,647,300 yen
Installment Interest
82,659,530 yen
(Total 691,306,830 yen)
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02/25/2007 Installment Principal
(13th Due Date) 617,320,530 yen
Installment Interest
73,986,300 yen
(Total 691,306,830 yen)
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08/25/2007 Installment Principal
(14th Due Date) 626,117,340 yen
Installment Interest
65,189,490 yen
(Total 691,306,830 yen)
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02/25/2008 Installment Principal
(15th Due Date) 635,039,510 yen
Installment Interest
91,267,320 yen
(Total 691,306,830 yen)
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(Continued on the next page)
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Due Date Amount Due
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Installment Principal 08/25/2008 Installment Principal
and Installment Interest (16th Due Date) 644,088,830 yen
Installment Interest
47,218,000 yen
(Total 691,306,830 yen)
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02/25/2009 Installment Principal
(17th Due Date) 653,267,090 yen
Installment Interest
38,039,740 yen
(Total 691,306,830 yen)
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08/25/2009 Installment Principal
(18th Due Date) 662,576,150 yen
Installment Interest
28,730,680 yen
(Total 691,306,830 yen)
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02/25/2010 Installment Principal
(19th Due Date) 672,017,860 yen
Installment Interest
19,288,970 yen
(Total 691,306,830 yen)
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08/25/2010 Installment Principal
(20th Due Date) 681,594,120 yen
Installment Interest
9,712,710 yen
(Total 691,306,830 yen)
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(Note) In case any of the above Due Dates falls on a holiday for
financial institutions, the affected Due Date shall be the first business
day after the subsequent date of such holiday.
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