EXHIBIT 10.32
SALE AND PURCHASE AGREEMENT
Exodus Communications K.K. ("Purchaser"), The Nomura Real Estate Development
Co., Ltd. ("NRE") and Nomura Research Institute, Ltd. ("NRI") entered into this
Sale and Purchase Agreement as of April 25, 2000 (this "Agreement") regarding
the sale and purchase of real estate etc. under which Purchaser is the purchaser
and NRE and NRI are the sellers on April 25, 2000 as follows.
Article 1
(Definitions)
In this Agreement, each term in the following subparagraphs shall have the
meaning as defined below.
1. "Land" shall mean the land specified in the Land Schedule attached
hereto.
2. "Building" shall mean the building specified in the Building Schedule
attached hereto. The Building includes the Equipment/Fixtures I.
3. "Equipment/Fixtures I" shall mean the equipment and fixtures owned by
NRE specified in the Equipment/Fixtures Schedule attached hereto.
4. "Equipment/Fixtures II" shall mean the equipment and fixtures owned by
NRI specified in the Equipment/Fixtures Schedule attached hereto.
5. "Property" shall mean the Land, the Building and the Equipment/Fixtures
II, collectively.
6. "Exodus" shall collectively mean Purchaser, Exodus Communications Inc.,
or their directors, officers, employees, working staffs, agents,
contractors, service consignees and other relevant persons.
7. The "Memorandum of Agreement Regarding Sublease" shall mean the
Memorandum of Agreement Regarding Sublease dated February 24, 2000
entered into among Exodus Communications K.K., NRE and NRI.
8. The "Office Space Sublease Agreement" shall mean the office space
sublease agreement regarding Nomura Fudosan Shinjuku Building as of
February 24, 2000 entered into between Exodus Communications K.K. and
NRI.
Article 2.
(Sale and Purchase between Purchaser and NRE)
1. NRE shall sell to the Purchaser, and the Purchaser shall purchase from NRE,
the Land and the Building, in accordance with this Agreement.
2. The purchase price in the preceding paragraph shall be 5,544,319,200 yen.
The details of the purchase price shall be as follows.
1. The Land: 4,842,516,000 yen
2. The Building: 668,384,000 yen and the consumption tax of 33,419,200 yen
3. The Purchaser and NRE hereby confirm that the consumption tax in the
preceding paragraph is calculated on the basis that the consumption tax rate
(i.e., the total of the tax rates under the Consumption Tax Law and the
Local Consumption Tax Law) effective as of the execution date hereof is 5%,
and they agree that the amount of the consumption tax in the preceding
paragraph will automatically change as a result of any change in the tax
rate applicable to the sale and purchase hereunder after the execution date
hereof.
4. Should any new tax similar to the consumption tax be imposed on this
Agreement due to a change in the tax system after the execution date hereof,
the Purchaser shall bear the burden of such tax.
Article 3.
(Sale and Purchase between Purchaser and NRI)
1. NRI shall sell to the Purchaser, and the Purchaser shall purchase from NRI,
the Equipment/Fixtures II, in accordance with this Agreement.
2. The purchase price in the preceding paragraph shall be 828,555,000 yen
(which consists of the Equipment/Fixtures II of 789,100,000 yen and the
consumption tax of 39,455,000 yen).
3. The Purchaser and NRI hereby confirm that the consumption tax in the
preceding paragraph is calculated on the basis that the consumption tax rate
(i.e., the total of the tax rates under the Consumption Tax Law and the
Local Consumption Tax Law) effective as of the execution date hereof is 5%,
and they agree that the amount of the consumption tax in the preceding
paragraph will automatically change as a result of any change in the tax
rate applicable to the sale and purchase hereunder after the execution date
hereof.
4. Should any new tax similar to the consumption tax be imposed on this
Agreement due to a change in the tax system after the execution date hereof,
the Purchaser shall bear the burden of such tax.
Article 4.
(Payment Date and Payment Method)
1. The Purchaser shall pay NRE 554,481,920 yen in total of the purchase price
as set forth in Article 2, representing 551,090,000 yen plus 3,341,920 yen
as consumption tax on the taxable portion thereof upon the execution of this
Agreement and shall, subject to Paragraph 2 of Article 12, pay NRE the
remaining balance of the purchase price no later than March 31, 2001, by
wire transferring each amount to the bank deposit account designated by NRE
(any wire transfer charges shall be borne by the Purchaser). Transfer of
ownership of the Land of and the Building shall occur as set forth in
Paragraph 1 of Article 13.
2. The Purchaser shall pay NRI 82,855,500 yen in total of the purchase price as
set forth in Article 3 upon the execution of this Agreement and shall,
subject to Paragraph 3 of Article 12, pay NRI the remaining balance of the
purchase price no later than March 31, 2001, by wire transferring each
amount to the bank deposit account designated by NRI (any transfer charges
shall be borne by the Purchaser). Transfer of ownership of the
Equipment/Fixtures II shall occur as set forth in Paragraph 2 of Article 13.
3. The "remaining balance" shall mean an amount calculated after applying by
Articles 2.3, 2.4, 3.3 and 3.4.
4. With respect to the acceptances of the purchase prices in the preceding two
paragraphs, NRE and NRI shall deem the wire transfer receipts issued to the
Purchaser by the bank(s) as the receipts and will not issue any receipt to
the Purchaser. The Purchaser shall not object to this treatment.
5. NRE shall take any measures as specified in Subparagraph 1 of Paragraph 1 of
Article 41, referred to by Paragraph 1 of Article 41-2 of the Building Lots
and Buildings Transaction Business Law (Guarantee Entrustment Agreement with
a Real Estate Guaranty Co., Ltd.) with respect to the amounts received from
the Purchase upon the execution of this Agreement.
Article 5.
(Change of the Subject of Sale and Purchase)
1. If any portion of the Building or the Equipment/Fixtures II is removed due
to construction or other work which Exodus itself or NRE, NRI or any third
party, with Exodus' prior approval, conducts during the period from the
execution hereof to the delivery of the Property, the removal portion shall
automatically be excluded from the subject of this Agreement.
2. The purchase price hereof shall not be changed even in the event of the
preceding paragraph.
Article 6.
(Repairs by NRE and NRI)
1. In the event that there occur any defect, deficiency, abnormality,
malfunction, or suspension of operation etc. with respect to the Property
until the time of the delivery of the Property to the Purchaser, NRE and NRI
shall have a necessary and reasonable duty of repair therefor, in accordance
with their respective ownership portions of the Property, and shall have no
duty of compensatory damages, duty to renovate equipment/fixtures, duty of
increase utility or functionality thereof, nor any other duty to the
Purchaser regardless of any reason whatsoever. Such repair obligation shall
not extend to the improvements or equipment/fixtures installed or added by
the Purchaser.
2. NRE or NRI shall bear the expenses for performing repair works as set forth
in the preceding paragraph; however, if the Purchaser deems repair works
beyond the scope of those set forth in the preceding paragraph necessary,
the Purchaser shall make a prior consultation with NRI and NRE, and if the
parties reach an agreement as to such repair works, the Purchaser shall be
responsible for any amount exceeding the scope of the repair works set forth
in the preceding paragraph, and perform such repair works.
3. Notwithstanding the provision of Paragraph 1, if it is expressly required by
law, ordinances or the orders of the relevant agencies, for the Property to
be repaired, altered or equipment installed immediately without any grace
period, NRI or NRE, as the case may be, shall conduct such repair,
alteration or installation work at its responsibility and expense, in
accordance with their respective ownership portions of the Property;
provided, however, that if such request is related to the portion subject to
the construction work which the Purchaser will conduct or has conducted
under the preceding Article, the Purchaser shall, in its responsibility and
expense, perform the repair, alteration or installation work so requested.
Article 7.
(Sale and Purchase based on Public Register)
The subject area for this sale and purchase transaction of the Land and the
Building shall be based on the area set forth in the real estate registry. Even
if there were any difference between the actual area and the area in the real
estate registry, the Purchaser, NRE and NRI shall not make any claim or
objection such as a claim to increase or decrease the purchase price, against
one another.
Article 8.
(Transfer Registration of Ownership)
1. NRE and the Purchaser shall apply for the transfer registration of the
ownership for the Land and the Building no later than March 31, 2001.
2. The fees and expenses required for the transfer registration under the
preceding paragraph (including, but not limited to, any registration tax,
stamp duty, and fees for a judicial scrivener) shall be borne by the
Purchaser.
Article 9.
(Delivery)
1. NRE and NRI shall deliver their respective subject of the sale and purchase
to the Purchaser on an as-is basis, no later than March 31, 2001.
2. With respect to the delivery under the preceding paragraph, the delivery of
the portion possessed by Exodus shall be made by the method of "summary
delivery (kanni-no-hikiwatashi)" provided for in Paragraph 2 of Article 182
of the Civil Code or the method of "transfer of possession by direction
(sasizu-ni-yoru-senyuiten)" provided for in Article 184 of the Civil Code,
and the delivery of the other portion shall be made by the method of "actual
delivery" provided for in Paragraph 1 of Article 182 of the Civil Code. If
there is a portion possessed by NRI, the delivery by NRE shall be made by
the method of "transfer of possession by direction" provided for in Article
184 of the Civil Code, and the delivery by NRI shall be made by the method
of "possession recharacterization (senyu-kaitei)" provided for in Article
183 of the Civil Code.
3. The Purchaser, NRE and NRI shall, by the time of delivery of the Property,
check and confirm the condition of the Land and the Building (excluding the
Equipment/Fixtures I) and the operative condition of the Equipment/Fixtures
I and the Equipment/Fixtures II in the presence of the three, and shall,
upon the time of delivery of the Property, exchange and deliver the results
thereof in writing to one another.
Article 10.
(Removal of Encumbrances)
1. No later than ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇ and NRI shall remove or deregister any
restrictions or encumbrances such as any security interests including any
mortgage, maximal-hypothec, pledge and assignment-type mortgage, and any
usufructuary rights including superficies and lease, and any provisional
attachment, provisional disposition and any other limitation or burden which
would prevent the Purchaser from exercising its entire ownership-rights in
the Property, whatever the name or form may be. Provided that the foregoing
shall not apply to the possession by Exodus and the possession by NRI
pursuant to its agreement with the Purchaser.
2. NRE and NRI shall, no later than March 31, 2001, remove the Heat Exchangers
No. 1 and No. 2 owned by NRE and a portion of CPU battery equipment (CVCF
rectifier 10 through 12, CVCF recharger 10 through 12, CVCF rectifier for
control and CVCF recharger for control), at its responsibility and expense,
in accordance with their respective ownership portions of the Property. The
Purchaser shall cooperate in NRE's and NRI's activity for such removal, if
necessary.
Article 11.
(Delivery of Document, Key, etc.)
1. NRE shall deliver to the Purchaser the documents specified in Document
Schedule I attached hereto and key etc. separately agreed upon between the
Purchaser and NRE, no later than March 31, 2001.
2. NRI shall deliver to the Purchaser the documents specified in Document
Schedule II attached hereto and key etc. separately agreed upon between the
Purchaser and NRI, no later than March 31, 2001.
3. Paragraph 2 of Article 9 shall apply mutatis mutandis to the delivery under
----------------
the preceding two paragraphs.
Article 12.
(Simultaneous Performance, Etc.)
1. NRE's and NRI's respective repair obligations under Paragraph 1 of Article 6
and removal obligations under Paragraph 2 of Article 10 shall be performed
prior to Purchaser's payment obligations under each paragraph of Article 2,
each paragraph of Article 3 and Paragraphs 1 and 2 of Article 4 and
settlement obligations under the proviso of Paragraph 2 of Article 15.
2. NRE's obligations under Paragraph 1 of Article 8, each paragraph of Article
9, Paragraph 1 of Article 10, Paragraph 1 of Article 11 and the proviso of
Paragraph 2 of Article 15 shall be performed simultaneously with Purchaser's
payment obligations under each paragraph of Article 2 and Paragraph 1 of
Article 4 and settlement obligations under the proviso of Paragraph 2 of
Article 15.
3. NRI's obligations under each paragraph of Article 9, Paragraph 1 of Article
10, Paragraph 2 of Article 11 and the proviso of Paragraph 2 of Article 15
shall be performed simultaneously with Purchaser's payment obligations under
each paragraph of Article 3 and Paragraph 2 of Article 4 and settlement
obligations under the proviso of Paragraph 2 of Article 15.
4. By the agreement among the Purchaser, NRE and NRI, the due date of the
performance of the obligations under the preceding two paragraphs may be
accelerated to any date coming on or after June 1, 2000.
ARTICLE 13.
(Transfer of Ownership)
1. The ownership of the Land and Building shall be transferred from NRE to the
Purchaser when the Purchaser has fully paid to NRE and NRE has received from
the Purchaser, the purchase price thereof as set forth in Article 2;
provided, however, that in the event that the Purchaser has fully paid the
purchase price as set forth in Article 2 on any date earlier than the due
date set forth in Paragraph 1 of Article 4, NRE shall be entitled to reject
the delivery of, and hold in its possession, the Land and Building
gratuitously until the deadline of delivery as set forth in Paragraph 1 of
Article 9, except for the cases where the parties reach agreement under
Paragraph 4 of Article 12.
2. The ownership of the Equipment/Fixtures II shall be transferred from NRI to
the Purchaser when the Purchaser has fully paid to NRI and NRI has received
from the Purchaser, the purchase price thereof as set forth in Article 3;
provided, however, that in the event that the Purchaser has fully paid the
purchase price as set forth in Article 3 on any date earlier than the due
date set forth in Paragraph 2 of Article 4, NRI shall be entitled to reject
the delivery of, and hold in its possession, the Equipment/Fixtures II
gratuitously until the deadline of delivery as set forth in Paragraph 1 of
Article 9, except for the cases where the parties reach agreement under
Paragraph 4 of Article 12.
ARTICLE 14.
(Boundary)
1. The Purchaser and NRE confirm that NRE has clearly indicated to the
Purchaser the boundary between the Land and the adjoining land (which does
not mean the boundary confirmed with owner of the adjoining land) by a
boundary stone by the execution of this Agreement.
2. NRE shall not take any responsibility regarding the boundary clearly
indicated under the preceding paragraph, even if any dispute arises in the
future with respect to such boundary between the Purchaser and the owner of
the adjoining land and/or the boundary is found to be false.
3. NRE shall not be responsible for making a survey regarding the Land.
ARTICLE 15.
(Allocation of Taxes and Other Public Charges)
1. With respect to taxes, other public charges and expenses for gas, water
supply, electricity and any other expenses or duties, those expenses or
duties arising on or before the immediately proceeding day of the delivery
date shall be borne by NRE and NRI and those arising on and after the
delivery date shall be borne by the Purchaser; provided, however, that if
NRI holds the Building in its possession after the delivery date, the
parties method and other terms of burdening the above charges and expenses
shall be set forth in the lease agreement between the Purchaser and NRI. The
initial date to count the fixed assets tax and city planning tax shall be
January 1.
2. Settlement under the preceding paragraph (including payment of consumption
tax incidental to such settlement, to be paid from the Purchaser to NRE and
NRI) shall upon determination of the actual amount to be paid, be made among
the Purchaser. NRE and NRI without delay; provided, however, that if there
is any actual amount which has been determined until the time of performance
by the Purchaser, NRE and NRE of their respective obligations under Article
12, settlement shall be made for such actual amount, simultaneously with the
said performance of such obligations.
3. The real estate acquisition tax imposed on the acquisition of the Property
shall be borne by the Purchaser.
ARTICLE 16
(Due Diligence)
1. The Purchaser hereby confirms and represents to NRE and NRI without
objection that:
(1) The Purchaser has conducted adequate research on the Property with
respect to, including, without limitation, its current condition,
operating condition, repair history, and durability, by the on-the-spot
confirmation, geological survey or other methods, with the cooperation
of NRE and NRI, taking advice of the experts employed by the Purchaser
prior to the execution of this Agreement;
(2) The Purchaser has received adequate explanation prior to the execution
of this Agreement from NRE and NRI pursuant to the Outline of
Equipment/Fixtures attached hereto or otherwise that the Building and
the Equipment/Fixtures II show phenomena resulting from deterioration
caused by the lapse of time or natural wear and tear, and that dirt,
damage, destruction, malfunction, abnormality, failure, erratic
operation or the like due to such deterioration and wear and tear are
likely to occur;
(3) NRE and NRI have disclosed to the Purchaser the documents set forth in
the Disclosure Document Schedule attached hereto, and the Purchaser has
perused and fully understood the contents thereof prior to the
execution of this Agreement;
(4) The Purchaser enters into this Agreement after having taken the result
of the above subparagraphs into consideration.
2. NRE and NRI shall not be responsible for any obligations or liability,
regardless of the cause of claim such as warranty of no-latent defects,
arising out of or in connection with the defects which the Purchaser is or
could have been aware of as a result of the survey etc. under each
subparagraph of the preceding paragraph.
ARTICLE 17
(Treatment of Warranty of No Latent Defects regarding the Land and Building)
1. NRE shall be responsible to the Purchaser for latent defects in the Land and
the Building only for the period of two (2) years form the date of delivery.
2. The Purchaser and NRE hereby confirm without objection that dirt, damage,
destruction, malfunction, failure, erratic operation or the like which is
attributable to deterioration by the lapse of time or natural wear and tear
shall not be included in the defects under the preceding paragraph.
3. NRE shall bear no responsibility, regardless of the cause of claim such as
warranty of no-latent defects, to the Purchaser for the dirt, damage,
destruction, malfunction, abnormality, failure, erratic operation, or the
like of the Property resulting from or in connection with construction by
Exodus to add, improve, or renew the equipment/fixtures in accordance with
the Memorandum of Agreement Regarding Sublease before the delivery of the
Land and the Building.
ARTICLE 18
(Exemption from Warranty of No-Latent Defects regarding Equipment/Fixtures II)
NRI shall have no obligation, regardless of the cause of claim such as warranty
of no-latent defects, default, responsibility in contract or tort, or
responsibility for unjust enrichment, against the Purchaser for any damages
whatsoever with respect to dirt, damage, malfunctions, abnormality, failure,
erratic operation, or the like of the Equipment/Fixtures II.
ARTICLE 19
(Loss before Delivery, etc.)
1. If all or a substantial part of the Property is damaged or lost due to force
majeur or any other causes not attributable to either the Purchaser, NRE, or
NRI before the delivery of the Property, and the purpose of this Agreement
becomes impossible to achieve, the Purchaser may, by notifying NRE and NRI
in writing within one (1) month after the date of such damage or loss, elect
to either (i) terminate this Agreement, or (ii) perform this Agreement. NRE
and NRI may terminate this Agreement by notifying the Purchaser in writing
thereof under the joint names, only if the Purchaser fails to make such
election. For the purpose of this paragraph, "a substantial part of the
Property is damaged or lost" shall mean the cases where the expenses
necessary for repairing such damaged or lost portions exceed 5% of the total
amount of the purchase price of the Property under Articles 2 and 3.
2. In the event of termination of this Agreement under the preceding paragraph,
NRE and NRI shall immediately reimburse any money received from the
Purchaser without interest upon termination of this Agreement. Articles 21
through 24 shall not apply to any case where the damage or loss of the
Property amounts to the degree set forth in the preceding paragraph.
3. If the Purchaser elects to perform this Agreement under ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ and NRI shall use their respective efforts to accelerate the
due date of the performance of their respective obligations to any date
coming on or after June 1, 2000, pursuant to Paragraph 4 to Article 12. In
this case, NRE and NRI shall take the measure of only reducing the purchase
price to the extent of such damaged or lost portion thereof, with no
obligation to repair whatsoever, and the Purchaser shall agree to this
treatment without any objection. Further, neither NRE and NRI shall have any
obligation. Regardless of the cause of claim such as warranty of no-latent
defects, default, responsibility for unjust enrichment, for any damages
whatsoever with respect to the Property.
4. If the damage or loss of the Property does not amount to the degree set
forth in ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇ and NRI shall, after consultation with the
Purchaser, take the measure of either (i) reducing the purchase price to the
extent of such damaged or lost portion thereof, or (ii) doing repairs to the
extent as set forth in Paragraph 1 of Article 6, and the Purchaser shall
agree to the measure therefor being limited to either (i) or (ii) without
any objection. In the case of either (i) or (ii) above, neither NRE or NRI
shall have any obligation, regardless of the cause of the claim such as
warranty of no-latent defects, default, responsibility in contract or tort,
or responsibility for unjust enrichment, for any damages whatsoever with
respect to the Property; provided, however, that if NRE and NRI choose
option (ii), NRE and NRI shall be responsible for the warranty of no-latent
defects relating to the defects which are caused from the portions of the
Property subject to such repairs, to the extent as agreed upon by the
Purchaser, NRE and NRI after consultations from time to time.
ARTICLE 20.
(Reservation of the Right of Purchaser to Termination during the Term.)
1. Even after the execution of this Agreement, the Purchaser may terminate this
Agreement during the period until the end of April, 2000 by notifying both
NRE and NRI in writing that the Purchaser waives the money already paid to
NRE and NRI pursuant to Paragraphs 1 and 2 of Article 4 hereof and
terminates this Agreement.
2. NRE and NRI may not terminate this Agreement even if they reimburse twice
the amount of money received form the Purchaser pursuant to Paragraphs 1 and
2 of Article 4 hereof.
ARTICLE 21.
(Termination Due to Breach of this Agreement by Purchaser)
1. In the event that the Purchaser fails to perform its material obligations
hereunder against NRE ▇▇▇/▇▇ ▇▇▇, ▇▇▇ and NRI may, by a written notice to
the Purchaser under their joint names, terminate this Agreement after
demanding a remedy in writing to the Purchaser under their joint names and
such failure being remedied for seven (7) days (in the case of monetary
obligations) or thirty (30) days (in the case of non-monetary obligations),
as the case may be after receipt by the Purchaser of such demand.
2. In the event of termination pursuant to the preceding paragraph, the
Purchaser shall immediately pay to NRE and NRI, respectively, as a penalty
for breach of contract, an amount equal to twenty percent (20%) of the
purchase price as specified Articles 2 and 3 hereof. NRE and NRI shall apply
the money received from the Purchaser pursuant to Paragraphs 1 and 2 of
Article 4 hereof, to part of such penalty for breach of contract.
3. The amount of the penalty for breach of contract under the preceding
paragraph shall not change regardless of the actual amount of damages
incurred by NRE and NRI.
ARTICLE 22.
(Termination Due to Breach of this Agreement by NRE only)
1. In the event that only NRE fails to perform its material obligations
hereunder, the Purchaser may, by written notice to NRE and NRI, terminate
all of this Agreement or the portion of this Agreement relating to the sale
and purchase between the Purchaser and NRE after demanding a remedy in
writing to NRE and NRI and such failure being unremedied for seven (7) days
(in the case of monetary obligations) or thirty (30) days (in the case of
non-monetary obligations), as the case may be, after receipt by NRE of such
demand. In this case, the Purchaser shall notify NRE and NRI in such
termination notice of its decision to terminate either all of this Agreement
or the portion of this Agreement relating to the sale and purchase between
the Purchaser and NRE.
2. If the portion of this Agreement relating to the sale and purchase between
the Purchaser and NRE is terminated pursuant to the preceding paragraph, the
Purchaser may demand form NRE the reimbursement of the money paid pursuant
to Paragraph 1 of Article 4 hereof, and may demand any one of the following
measures be taken. The Purchaser shall notify both NRE and NRI which of the
following measures should be taken in the termination notice under the
preceding paragraph.
(1) NRE shall immediately pay to the Purchaser as a penalty for breach of
contract, an amount equal to twenty percent (20%) of the purchase price
as specified in Article 2 hereof. The amount of the penalty for breach
of contract shall not change regardless of the actual amount of damages
incurred by the Purchaser.
(2) NRE and NRI shall consent to the Purchaser using part of the Property
until March 31st, 2001 pursuant to the memorandum of Agreement
Regarding Sublease, and NRE shall thereafter lease the Building to the
Purchaser for ten (10) years from April 1st, 2001 to March 31, 2011
pursuant in the Particulars of Building Lease Agreement attached
hereto.
3. If the Purchaser elects to take the measures under Subparagraph (1) of the
preceding paragraph, the portion of this Agreement relating to the sale and
purchase between the Purchaser and NRI shall be automatically terminated. In
such case, the Purchaser may not claim against NRE and/or NRI for any
penalty for breach of contract, damages or other money arising out of or in
connection with the termination, regardless of the name(s) or cause(s) of
such claim, except for (i) the reimbursement of money from NRE under the
text of the preceding paragraph (ii) the payment of the penalty-for-breach
of contract from NRE under Subparagraph (1) of the preceding paragraph, and
(iii) the reimbursement of money paid to NRI under Paragraph 2 of Article 4.
4. If the Purchaser elects to take the measures under Subparagraph (2) of
Paragraph 2, the Purchaser may not terminate the portion of this Agreement
relating to the sale and purchase between the Purchaser and NRI, and may not
claim against NRE and/or NRI for any penalty for breach of contract, damages
or other money arising out of or in connection with the termination
regardless of the name(s) or cause(s) of such claim, except for the claim
for payment of the money against NRE under the text of Paragraph 2 above.
5. If all of the Agreement is terminated pursuant to Paragraph 1 above, the
Purchaser may demand from NRE and NRI the reimbursement of the money paid
pursuant to Paragraphs 1 and 2 of Article 4 hereof, and may demand any one
of the following measures be taken. The Purchaser shall notify both NRE and
NRI which of the following measures should be taken in the termination
notice under Paragraph 1 above.
(1) NRE shall immediately pay to the Purchaser as a penalty for breach of
contract, and amount equal to twenty percent (20%) of the purchase
price as specified in Article 2 hereof. The amount of the penalty for
breach of contract shall not change regardless of the actual amount of
damages incurred by the Purchaser. In this case, NRI shall not be
responsible for the payment of such penalty for breach of contract to
the Purchaser.
(2) NRE and NRI shall consent to the Purchaser using part of the Property
until March 31st, 2001 pursuant to the Memorandum of Agreement
Regarding Sublease, and thereafter, NRE shall lease the Building to the
Purchaser, and NRI shall lease the Equipment/Fixtures II to the
Purchaser, respectively, for ten (10) years from April 1st, 2001 to
March 31st, 2011, pursuant to the Particulars of Building Lease
Agreement attached hereto; provided, however, that the terms and
conditions of the lease relating to the Equipment/Fixtures II shall be
conferred and determined by the Purchaser, NRE and NRI, taking into
account those set forth in the Office Space Sublease Agreement.
6. If the Purchaser elects to take the measures under Subparagraph (1) of the
preceding paragraph, the Purchaser may not claim against NRE and/or NRI for
any penalty for breach of contract, damages or other money arising out of or
in connection with the termination, regardless of the name(s) or cause(s) of
such claim, except for (i) the reimbursement of money from both NRE and NRI
under the text of the preceding paragraph, and (ii) the payment of the
penalty for breach of contract from NRE under Subparagraph (1) of the
preceding paragraph.
7. If the Purchaser elects to take the measures under Subparagraph (2) of
Paragraph 5, the Purchaser may not claim against NRE and/or NRI for any
penalty for breach of contract, damages or other money arising out of or in
connection with the termination, regardless of the name(s) or cause(s) of
such claim, except for the claim for payment of the money against both NRE
and NRI under the text of Paragraph 5 above.
Article 23.
(Termination Due to Breach of this Agreement by NRI only)
1. In the event that only NRI fails to perform its material obligations
hereunder, the Purchaser may, by a written notice to NRE and NRI, terminate
the portion of this Agreement relating to the sale and purchase between the
Purchaser and NRI after making a demand for remedy in writing to NRE and NRI
and such failure being unremedied for seven (7) days (in the case of
monetary obligations) or thirty (30) days in the case of non-monetary
obligations), as the case may be, after receipt by NRI of such demand.
2. In the event of partial termination for this Agreement pursuant to the
preceding paragraph, the Purchaser may demand from NRI the reimbursement of
the money paid pursuant to paragraph 2 of Article 4 hereof, and may demand
one of the following measures be taken, the Purchaser shall notify NRE and
NRI which of the following measures should be taken in the termination
notice under the preceding paragraph.
(1) NRI shall immediately pay to the Purchaser as a penalty for breach
of contract, an amount equal to twenty percent (20%) of the purchase
price as specified in Article 3 hereof. The amount of the penalty for
breach of contract shall not change regardless of the actual amount of
damages incurred by the Purchaser.
(2) NRE and NRI shall consent to the Purchaser using the Equipment/Fixtures
II until March 31st, 2001 pursuant to the Memorandum of Agreement
Regarding Sublease, and NRI shall lease the Equipment/Fixtures II to
the Purchaser for ten (10) years from April 1st, 2001 to March 31st,
2011; provided, however, that the terms and conditions of the lease
shall be conferred and determined by the Purchaser, NRE and NRI, taking
into account those set forth in the Office Space Sublease Agreement.
3. If the Purchaser elects to take the measures under Subparagraph (1) of the
preceding paragraph, the portion of this Agreement relating to the sale and
purchase between the Purchaser and NRI shall be automatically terminated. In
such case, the Purchaser may not claim against NRE and/or NRI for any
penalty for breach of contract, damages or other money arising out of or in
connection with the termination, regardless of the name(s) or cause(s) of
such claim, except for (i) the reimbursement of money under text of
▇▇▇▇▇▇▇▇▇ ▇, (▇▇) the payment of the penalty for breach of contract under
Subparagraph (1) of the preceding paragraph, and (iii) the reimbursement of
money paid to NRE under Paragraph 1 of Article 4.
4. If the Purchaser elects to take the measures under Subparagraph (2) of
Paragraph 2, the Purchaser may not terminate the portion of this Agreement
relating to the sale and purchase between the Purchaser and NRI, and may not
claim against NRE and/or NRI for any penalty for breach of contract, damages
or other money arising out of or in connection with the termination,
regardless of the name(s) or cause(s) of such claim, except for the claim
for payment of the money against NRI under the text of Paragraph 2 above.
Article 24.
(Termination Due to Breach of this Agreement by NRE and NRI)
1. In the event that NRE and NRI both fail to perform their respective material
obligations hereunder, the Purchaser may, by a written notice to NRE and
NRI, terminate this Agreement after making a demand for the remedy in
writing to NRE and NRI and such failure being unremedied for seven (7) days
(in the case of monetary obligations) or thirty (30) days (in the case of
non-monetary obligations), as the case may be, after receipt by NRE and NRI
of such demand.
2. In the event of termination of this Agreement pursuant to the preceding
paragraph, the Purchaser may demand from NRE and NRI, the reimbursement of
money paid pursuant to Paragraphs 1 and 2 of Article 4 hereof, and may
demand one of the following measures be taken. The Purchaser shall notify
both NRE and NRI which of the following measures should be taken in the
termination notice under the preceding paragraph.
(1) NRE and NRI shall immediately pay to the Purchaser as a penalty for
breach of contract, an amount equal to twenty percent (20%) of the
purchase price as specified in Articles 2 and 3 hereof. The amount of
the penalty for breach of contract shall not change regardless of the
actual amount of damages incurred by the Purchaser.
(2) NRE and NRI shall consent to the Purchaser using part of the Property
until March 31st, 2001 pursuant to the Memorandum of Agreement
Regarding Sublease, and for ten (10) years from April 1st, 2001 to
March 31st, 2011 and NRE shall lease the Building to the Purchaser
pursuant to the Particulars of Building Lease Agreement attached
hereto, and NRI shall lease the Equipment/Fixtures II to the Purchaser;
provided however, that the terms and conditions of the lease of the
Equipment/Fixtures II shall be conferred and determined by the
Purchaser NRE and NRI taking into account those set forth in the Office
Space Sublease Agreement.
3. If the Purchaser elects to take the measures under Subparagraph (1) of the
preceding paragraph, this Agreement shall be automatically terminated. In
such case, the Purchaser may not claim against NRE and/or NRI for any
penalty for breach of contract, damages or other money arising out of or in
connection with the termination, regardless of the name(s) or cause(s) of
such claim, except for (i) the reimbursement of money under the text of
Paragraph 1, and (ii) the payment of the penalty for breach of contract
under Subparagraph (1) of the preceding paragraph.
4. If the Purchaser elects to take the measures under Subparagraph (2) of
Paragraph 2, the Purchaser may not terminate this Agreement, and may not
claim against NRE and/or NRI for any penalty for breach of contract, damages
or other money arising out of or in connection with the termination,
regardless of the name(s) or cause(s) of such claim, except for the claim
for payment of the money against NRE and NRI under the text of Paragraph 2
above.
Article 25.
(Limitation of Right to Termination)
The termination of this Agreement shall not become effective until and unless it
is made in the terms and manner set forth in the preceding six articles;
provided, however, that this shall not apply to the event where the text of
Paragraph 1 of Article 566 of the Civil Code, as referred to by Article 570 of
the Civil code, shall apply to the Land and the Building.
Article 26.
(Representations and Warranties)
1. The Purchaser, NRE and NRI hereby represent and warrant to one another that
all legal and internal procedures (including the resolutions for approval by
the board of directors) necessary for the execution and performance of this
Agreement are completed.
2. NRE and NRI hereby represent and warrant to the Purchaser that, to the
actual knowledge of NRE and NRI, there is no pending action suit,
investigation, eminent domain action, or governmental notice with respect to
the Property which materially affect the value of the Property.
3. NRE and NRI hereby represent and warrant to the Purchaser that except as
already disclosed to the Purchaser, to the extent that NRE and NRI can be
aware of with reasonable diligence, there are no hazardous materials with
respect to the Property, which would be generally recognized as materially
harmful to any human life or body or as having materially adverse effect on
the value of the Property.
4. NRE and NRI hereby represent and warrant to the Purchaser that they have
made the Purchaser review or have given an opportunity to review, all
documents with respect to the Property on which NRE and NRI determine that
the Purchaser have relied in making its representations in Article 16. For
the avoidance of doubt, the documents which NRE and NRI have made the
Purchaser review or have given an opportunity to review includes, but not
limited to, those described in the Document Schedules I and II attached
hereto.
5. NRE and NRI hereby represent and warrant to the Purchaser that as of the
execution date hereof, they have the insurance policies as set forth in the
Insurance Schedule attached hereto and will keep them in place until the
completion of the delivery of the Property and transfer of ownership of the
Property to the Purchaser hereunder.
6. NRE and NRI hereby represent and warrant to the Purchaser that neither NRE
nor NRI have any agreements or contracts to transfer the ownership or
possession of the Property to any third party, or except for the already
disclosed existing limitations or encumbrances, to establish on the
Property, any security interest, including mortgage, maximal-hypothec,
pledge and assignment-type mortgage, and any usufructuary rights including
superficies and lease.
7. NRE and NRI hereby represent and warrant to the Purchaser that for so long
as this Agreement remains effective after the execution hereof, neither NRE
nor NRI shall, without the prior written consent of the Purchaser, enter
into any contracts or agreements regarding the Property that will survive
the transfer of ownership to the Purchaser, and that to the extent there are
such outstanding contracts or agreements, NRE and/or NRI will discharge of
extinguish all of its obligations and liabilities under such contracts and
agreements before the transfer of ownership of the Property to the
Purchaser.
Article 27.
(Covenants)
1. During the period from the execution hereof to the delivery of the Property,
NRE and NRI shall manage the Property, with due diligence of good manager at
the same level as NRE and NRI continued to manage it so far, to the extent
as provided for herein in accordance with their respective ownership
portions of the Property, and use the Property in accordance with the
provisions of the Memorandum of Agreement regarding Lease and the Office
Space Sublease Agreement.
2. For so long as this Agreement remains effective after the execution hereof,
neither NRE nor NRI shall transfer the ownership or possession of the
Property to any third party, or, except for the existing limitations or
encumbrances, establish on the Property, any security interest including
mortgage, maximal-hypothec, pledge and assignment-type mortgage, and any
usufructuary rights including superficies and lease.
3. For so long as this Agreement remains effective after the execution hereof,
neither NRE nor NRI shall provide any information of the Property of the
real estate market.
4. For so long as this Agreement remains effective after the execution hereof,
if any of the Purchaser, NRE and NRI are aware of the occurrence of any
event which would have material effect on the Property, such party shall
notify the other parties thereof and shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ with the
other parties on the measures therefor.
Article 28.
(Management Service Agreement of the Property)
1. The Purchaser shall, after the execution of this Agreement and before the
delivery of the Property, discuss in good faith with Nomura Building Sogo
Kanri K.K. ("Nomura Building Management") with respect to an agreement
regarding the entrustment of the management of the Property. Provided,
however, that if the Purchaser and Nomura Building Management fail to reach
an agreement, the Purchaser may enter into an agreement regarding the
entrustment of the management of the Property with a third party.
2. The contents of the management service agreement by and between the
Purchaser and Nomura Building Management shall be specified separately by
and between the Purchaser and Nomura Building Management.
3. If the management service agreement is entered into by and between the
Purchaser and Nomura Building Management before the delivery of the
Property, the delivery of the portion possessed by Nomura Building
Management under Paragraph 1 of Article 9 shall be made by the method of
"transfer of possession by direction (sasizu-ni-yoru-senyuiten) provided for
in Article 184 of the Civil Code.
4. NRE and NRI shall bear no responsibility to the Purchaser with respect to
the management service performed by Nomura Building Management.
Article 29.
(Measures for Jamming Prevention)
1. The Purchaser acknowledges without any objection that in order to remove TV
radio disturbance or other jamming caused by the effect of the Building, NRE
has agreements with its neighbors pursuant to which (i) NRE shall allow
neighbors to gratuitously use the TV audience common facilities set up in
the Building for neighbors (ii) NRE shall bear the expenses for the
maintenance, repair, administration and renewal of the TV audience common
facilities for neighbors, and (iii) NRE shall pay to Tokyo Electric Power
Co., Inc,. the charges for installment and electricity relating to the TV
audience common facilities for neighbors.
2. In the event that the Purchaser acquires the ownership of the Building, the
Purchaser shall succeed from NRE all its obligations under the agreements
with the neighbors in the preceding paragraph with NRE being released from
all its obligations, and shall comply with all such agreements.
3. NRE represents and warrants that it has provided the Purchaser with a true
and correct copy of all documents (which shall be limited to originals)
related to the TV audience common facilities set forth in Paragraph 1, to
the extent that NRE actually recognizes and holds such documents, as at the
time of the execution hereof.
4. If the Purchaser establishes equipment or other structures (including
antennas) on the Building and cause any TV and/or radio disturbance or other
jamming to neighbors due to the effect of such equipment or structures, the
Purchaser shall, in its sole responsibility and expense, take appropriate
measure therefore and shall not cause any trouble to NRE or NRI.
Article 30
(Assignment of Rights and Obligations)
The Purchaser may not assign or transfer its contractual status as seller
hereunder or any of its rights or obligations hereunder to any third party,
without the written consent of NRE and NRI, which consent shall not unreasonably
withheld or delayed.
Article 31.
(Individual Obligations)
Any monetary obligations which NRE and NRI shall have under this Agreement shall
not be joint and several, regardless of the cause(s) thereof.
Article 32.
(Notification)
Any notification which the Purchaser, NRE or NRI makes under this Agreement
shall not be effective unless made in writing.
Article 33.
(Confidentiality)
Neither the Purchaser, NRE, nor NRI shall use any confidential information
obtained in the discussions and negotiations relating to this Agreement, the
Memorandum of Agreement Regarding Sublease and the Office Space Sublease
Agreement for any purpose other than the execution of this Agreement, the
Memorandum of Agreement Regarding Sublease or the Office Space Sublease
Agreement, and shall not disclose such confidential information to any third
party except as required by law or with the consent of the other parties. The
parties may disclose such confidential information to their legal and financial
advisors provided their advisors, if not subject to statutory confidential
obligations, enter into a confidentiality agreement in advance.
Article 34.
(Default Interest)
The default interest in the event of default in respect of monetary obligations
hereunder shall be calculated at the per-diem rate of 14.6 percent on a 365-day
year basis.
Article 35.
(Cost Allocation of Stamp Duty)
The stamp duty to be affixed to this Agreement shall be borne by the Purchaser
and NRE, respectively.
Article 36.
(Governing Law and Jurisdiction)
This Agreement shall be governed and construed in accordance with the laws of
Japan, and any dispute relating to this Agreement shall be submitted to the
exclusive jurisdiction of the Tokyo District Court in the first instance.
Article 37.
(Language)
This Agreement was prepared in Japanese with an English translation thereof.
Should there be any difference or inconsistency between the Japanese version and
the English version, the Japanese version shall prevail in all respects.
Article 38.
(Binding Effect of Agreement before Execution of this Agreement)
1. The execution of this Agreement shall in no way affect the effect of the
Memorandum of Agreement regarding Sublease and the Office Space Sublease
Agreement
2. Except for the Memorandum of Agreement Regarding Sublease and the Office
space Sublease Agreement, any matters agreed to by and between the Purchaser
and NRE and NRI prior to the execution of this Agreement, whether in
writing, oral or otherwise and irrespective of the form it takes and its
name, shall be null and void.
3. If any portion of the provisions of this Agreement is found to be void or
unenforceable by a decision etc. by a court, such provision shall not be
effective; provided, however, that the avoidance or unenforceability of such
provision shall not affect the validity and enforceability of the other
provisions hereof. The Purchaser, NRE and NRI agree to amend or alter such
provision to the extent that it is necessary to be valid and enforceable,
considering the purpose and effect of such provision.
Article 39.
(Conditions Precedent to the Purchaser's Obligation to Purchase)
1. The following are conditions precedent to the Purchaser's obligations to pay
the remaining balance under each paragraph of Article 2 and Paragraph 1 of
Article 4. The failure by NRE to perform any of the following conditions
shall be deemed as a breach of the "material obligations" referred to in
Articles 22, 23 and 24 hereof, and Articles 22, 23 and 24 shall apply to
such cases:
(1) NRE shall deliver to the Purchaser a writing that the representations
and warranties of NRE set forth in each paragraph of Article 26 are
true and correct as of the date of delivery of the Land and the
Building with the same force and effect as if they had been made at
such date;
(2) NRE shall deliver a certified copy of the real estate registry
regarding the Land and Building, representing no security interest
including any mortgage, maximal-hypothec, pledge and assignment-type
mortgage and no usufructuary rights including superficies and lease
thereon; and
(3) Upon delivery of the Land and the Building, NRE shall deliver to the
Purchaser a writing that NRE is not aware of the occurrence of, since
the date hereof, any event which makes any material adverse effect on
the Land and the Building and which has not been disclosed pursuant to
Paragraph 4 of Article 27 hereof.
2. The following are conditions precedent to the Purchaser's obligations to pay
the remaining balance under each paragraph of Article 3 and Paragraph 2 of
Article 4. The failure by NRI to perform any of the following conditions
shall be deemed as a breach of the "material obligations" referred to in
Articles 22 through 24 hereof, and Articles 22 through 24 shall apply to
such cases:
(1) NRI shall deliver to the Purchaser a writing that the representations
and warranties of NRI set forth in each paragraph of Article 26 are
true and correct as of the date of delivery of the Equipment/Fixtures
II with the same force and effect as if they had been made at such
date; and
(2) Upon delivery of the Equipment/Fixtures II, NRI shall deliver to the
Purchaser a writing that NRI is not aware of, since the date hereof,
the occurrence of any event which makes any material adverse effect on
the Equipment/Fixtures II and which has not been disclosed to the
Purchaser pursuant to the Paragraph 4 of Article 27 hereof.
Article 40.
(Matters not Provided For)
With respect to any matter which is not provided for in this Agreement, the
Purchaser, NRE, and NRI shall in good ▇▇▇▇▇ ▇▇▇▇▇▇ and resolve such matters in
accordance with the Civil Code, other relevant laws and regulations, and the
practices of real estate lease transactions in Japan.
IN WITNESS WHEREOF, the parties have caused this Agreement executed in duplicate
to be signed and sealed, the Purchaser and NRE each shall retain one original,
and NRI shall retain one copy.
April 25, 2000
Purchaser: EXODUS COMMUNICATIONS, K.K.
/s/ ILLEGIBLE
NRE: NOMURA REAL ESTATE DEVELOPMENT, CO. LTD.
/s/ ILLEGIBLE
NRI: NOMURA RESEARCH INSTITUTE, LTD.
/s/ ILLEGIBLE
