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EXHIBIT 10.9
SITE SERVICES AGREEMENT
The undersigned:
UNIPHASE NETHERLANDS B.V.
with its registered office at Eindhoven, and principal place of business at
Professor ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, duly represented by its director ▇▇ ▇▇▇ ▇▇▇▇▇,
hereinafter referred to as UNIPHASE
and
NEDERLANDSE PHILIPS BEDRIJVEN B.V.,
with its registered office and its principal place of business at ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, legally represented by its director ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, hereinafter
referred to as NPB
HAVE AGREED AS FOLLOWS:
ARTICLE 1 SUPPLY OF SERVICES
1.1 NPB shall supply to Uniphase the services listed in Appendices A,B and C
hereto. These services shall hereinafter be referred to as "THE SERVICES
A, THE SERVICES B AND THE SERVICES C".
The services A relate to the term of the leases with respect to the
buildings WA, WY, WZ, WAD, WAM, all of them located at the Natlab site
at Prof. Holstlaan in Eindhoven, entered into between the parties of
even date. The services B and C relate to the activities performed in
these buildings.
1.2 After entry into force of the lease agreement between Uniphase and NPB
with respect to the building WBC/WBD, NPB is obliged to supply the
services A, services B and services C to Uniphase for this building
comparable to the terms and conditions of this agreement, should
Uniphase request it to supply these services.
1.3 In addition to the services listed in the Appendices, Uniphase will be
entitled to discharge all its waste water into the sewage system of NPB.
The costs of this service will be calculated based on and equal to the
levies charged by the competent authorities.
Uniphase guarantees that it will comply with applicable legislation and
the conditions of NPB's waste water permit dated 20 June 1985, of which
the applicable provisions are attached to this agreement in Appendix D.
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Uniphase shall inform NPB of any intention to increase the amount disposed
of promptly. NPB guarantees that its own water disposal is in accordance
with applicable legislation and the waste water permit 20 June 1985.
NPB shall inform the water authorities of this agreement and undertakes to
request a new waste water permit if required by law or by the water
authorities.
ARTICLE 2 DURATION AND TERMINATION
2.1 This agreement enters into effect on the day of transfer of the shares
in Uniphase from Philips Business Electronics B.V. to Uniphase
Corporation. This agreement is entered into for an indefinite period of
time, subject to the following.
Services A
2.2 With respect to the services A, this agreement shall terminate in any
case in the event that both the lease agreements between NPB and
Uniphase and to which the services relate terminate, without any notice
being required.
Otherwise, NPB is not entitled to terminate the supply of these
services.
Uniphase can terminate all or any part of the services A at any time
after 1 January 1999, subject to a period of notice of six months.
Services B
2.3 With respect to the services B, this agreement shall terminate in any
case in the event that both the lease agreements referred to under
services A terminate.
Uniphase can terminate the services B at any time after 1, January 1999
subject to a six months period of notice.
If at any time one party wishes earlier termination the other party will
negotiate in good faith.
NPB shall be entitled only to terminate the supply of a service B, in
the event of serious default by Uniphase, which default is not cured
within forty five (45) days after receipt of written notice thereof from
NPB or in the event that NPB no longer supplies the service to the
Nat.lab site, subject to a six months notice.
In the event NPB is in default with the supply of a service and Uniphase
has summoned NPB to cure its default within 14 days and thereafter the
default has not been cured, Uniphase can terminate the supply of that
service with immediate effect.
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Services C
2.4 These services terminate in the event both the leases terminate.
Uniphase can terminate taking account of a six month notice period. NPB
can terminate these services, subject to a period of 24 months notice,
however with respect to the chemical centrale, NPB can only terminate
that service if it is generally withdrawn from the site. If the service
with respect to the Ion implanter is terminated, Uniphase has the option
to buy the Ion Implanter at current market value. Only in the event that
NPB terminates services for IT and communications, NPB will, subject to
Uniphase negotiating in good faith with third parties, be responsible
for excess costs over and above standing NPB charges for these services
to a maximum amount of six months charges for those services terminated.
With respect to all services C if at any time one party wishes earlier
termination the other party will negotiate in good faith.
NPB shall be entitled only to terminate the supply of a service C, in
the event of serious default by Uniphase, which default is not cured
within forty five (45) days after receipt of written notice thereof from
NPB or in the event that NPB no longer supplies the service to the
Nat.lab site, subject to a six months notice.
In the event NPB is in default with the supply of a service and Uniphase
has summoned NPB to cure its default within 14 days and thereafter the
default has not been cured, Uniphase can terminate the supply of that
service with immediate effect.
ARTICLE 3 PRICE
3.1 Prices are set forth in the annexes to this Agreement and include costs
of maintenance. NPB is permitted to adjust prices annually according to
costs of living index increases in The Netherlands for NPB originated
services; whilst costs for services supplied by third parties can be
adjusted to reflect changes in third party tariffs. All prices in the
annexes are exclusive of VAT.
3.2 Payment will take place within thirty (30) days after invoice. NPB shall
invoice Uniphase monthly;
3.3 In addition to the payment referred to in 2 of this Article and during
any period in which NPB shall be providing services to Uniphase
hereunder, Uniphase shall pay to NPB an annual administration fee in
arrears of NLG 154,000 exclusive of VAT, subject to an annual index
based on the consumer price index.
3.4 Upon a termination of any of the services pursuant to this agreement,
the price for services payable pursuant to article 3 shall be reduced to
reflect the reduced service.
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ARTICLE 4 SUPPLY OF THE SERVICES
4.1 NPB guarantees the continuous supply of the services at the level, which
generally is provided to the Nat.lab site. This shall in no event be
less than the quality level of the services in the pre-closing period
4.2 In the event of disturbance, breakdown or interruptions in the supply of
the services, NPB shall promptly repair or do whatever is necessary to
continue the supply of the services in question, without being entitled
to charge Uniphase for the costs of repair, or other measures. Uniphase
shall inform NPB in writing as soon as possible of any breakdown,
disturbance or interruption. NPB is obliged to take corrective action as
soon as reasonably can be provided.
4.3 NPB will maintain the equipment, installation or facility used in the
process of rendering a service and will repair or replace any faulty
equipment at its own expense.
4.4 NPB guarantees that the supply of services takes place in conformity
with applicable legislation and contractual obligations. NPB holds
Uniphase harmless and indemnifies Uniphase against any claim from third
parties, including orders or claims from public authorities with respect
to any claims of any nature arising as a result of the supply of
services by NPB.
ARTICLE 5 LIABILITY AND DAMAGE
5.1 Parties are liable to each other for losses and damages caused due to
negligence or improper use of installations and facilities.
ARTICLE 6 MISCELLANEOUS
6.1 NPB will provide Uniphase access to the Philips/NPB material assessment
techniques (SIMS, Auger, TEM, chemical analyses, etc.,) without charging
Uniphase separately for this service.
6.2 Uniphase will not be entitled to transfer the rights resulting from this
agreement in whole or in part to a third party, unless NPB has given its
consent.
6.3 Should any part of this agreement be nullified, this shall not affect
the remaining parts of the agreement. Instead of the nullified part, the
agreements which are closest to that which the parties would have agreed
upon had they known of the nullity or avoidance shall be considered to
be agreed.
6.4 As from the commencement date of this agreement, all communications from
Uniphase to NPB relating to the fulfilment of this agreement, shall be
addressed to:
for Uniphase ▇▇ ▇▇▇ ▇▇▇▇▇▇
Uniphase Netherlands B.V. Building WY-7
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for NPB NPB Natuurkundig Laboratorium Buildings WB5
6.5 This agreement shall be governed by the laws of the Netherlands. Should
any dispute arise with respect to the fulfilment of the obligations
resulting from this agreement, these disputes should be brought before
the District Court of Utrecht.
6.6 In the event that any dispute among the parties to this agreement should
result in litigation, the prevailing party in such dispute shall be
entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to
this agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
/s/ ▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Uniphase Netherlands B.V. Nederlandse Philips Bedrijven B.V.,