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EXHIBIT 10.7
LEASE AGREEMENT FOR OFFICE ACCOMMODATION
AND OTHER BUSINESS ACCOMMODATION NOT GOVERNED BY
ARTICLE 7A: 1624 OF THE DUTCH CIVIL CODE
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based on the model adopted by the Real Property Council in February 1996.
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The undersigned:
NEDERLANDSE PHILIPS BEDRIJVEN B.V., established in Eindhoven, lawfully
represented by Mr. Dijkema in his capacity as director hereafter referred to as
the "Lessor";
and
UNIPHASE NETHERLANDS B.V., established in Eindhoven, the Netherlands, lawfully
represented by Xx. Xxx Xxxxx in his capacity as director of Uniphase Netherlands
B.V., hereafter referred to as the "Lessee",
HAVE AGREED AS FOLLOWS
ARTICLE 1 - THE LEASED PROPERTY, DESIGNATION, USE
1.1. This agreement relates to the business accommodation (hereafter referred
to as the "leased premises") consisting of the following accommodation:
gross m(2) net m(2) annual rent in NLG
WAD 2,070 1,007 263,834
WAM 2,070 90 23,580
WBC/WBD 8,400 6,000 2,900,000
TOTAL 12,540 7,097 3,187,414
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The rent relates to the calendar year 1998 and with respect to the
buildings WAM and WAD includes the maintenance costs and service costs.
1.2. The leased premises are located at the Natlab site, Professor Holstlaan
at Eindhoven, including 130 parking places at the Natlab site. Staff can
use additional parking places, provided they are available.
1.3. A drawing showing the location of the leased premises is attached in
annex 1a. A detailed list of the rooms and spaces leased in WAD and WAM
is attached in annex 1b. The buildings WBC/WBD are described in the
building plan certified by the parties and attached to this agreement as
annex 2. This plan shall form an integral part of this agreement.
1.4. The lessee shall have the right to change the building plan of buildings
WBC/WBD from the date of signing this agreement. In the event such
changes in the building plan increase or decrease the building costs,
the rent with respect to these buildings will be adjusted accordingly on
the assumption that the rent will amount to 10% of the investment costs,
exclusive of VAT. According to the building plan the investment costs
amount to NLG 29,000,000 exclusive of VAT.
1.5. The leased premises may be used as office space, for assembling
purposes, storage or production. Lessee shall have the right to access
for 24 hours a day. The installations, equipment and facilities present
in the leased premises at the moment of entry into force of this
agreement are part of the leased premises, unless they are listed in
schedule 1.25 of the Master Purchase Agreement of same date, containing
the schedule of the installations, equipment and facilities owned or
leased by the lessee.
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1.6. Without the Lessor's prior permission, the Lessee may not assign to the
leased property a designation different from the one specified in
Article 1.2. However, the lessee is entitled to change at its own
account, the designation of part of the premises into another
designation as described in Article 1.2, subject to that determined in
Article 6.1.
1.7. The maximum permissible load which may be placed on the floors of the
leased property shall be 600kg/m(2) for manufacturing space and
300kg/m(2) for office space.
ARTICLE 2 - CONDITIONS
2.1. This agreement shall include the general conditions pertaining to the
leasing of office accommodation and other business accommodation not
governed by Article 7A: 1624, Dutch Civil Code of February 1996
(hereafter referred to as the "general conditions"). The general
conditions are part of the lease and attached in annex 3.
ARTICLE 3 - TERM, RENEWAL, TERMINATION
3.1. This agreement has been concluded for a term of 5 (five) years with
respect to the buildings WAM and WAD, commencing on 1 June 1998 and
expiring on 31 May 2003.
3.2. The lease term with respect to buildings WBC and WBD shall be 20
(twenty) years, commencing on the date of delivery of these buildings
and terminating 20 years thereafter.
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3.3. After expiry of the term specified in Article 3.1 with respect to the
buildings WAD and WAM, this agreement shall be renewed for a consecutive
term of five (5) years, thus until 31 May 2008. At Philips' option, such
lease will either be extended on similar conditions (adjusted so as to
take into account market rate developments for such leases) for another
5 year period, or Uniphase may be offered similar accommodation in the
vicinity of the facilities.
3.4. The agreement may be terminated by either party with respect to each
building or functional part thereof, if mutually agreed, with due
observance of a minimum notice period of 12 (twelve) months.
3.5. Notice must be given by writ or registered letter.
3.6. Premature termination of this agreement shall be allowed in the
situations specified in Article 7 of the general conditions.
ARTICLE 4 - PAYMENT OBLIGATION, PAYMENT PERIOD
4.1. The lessee's payment obligation shall comprise of:
- the rent, which is with respect to the buildings WAM and WAD inclusive
of the maintenance costs and the service costs;
- the value-added tax due on the rent, or an equivalent amount in
accordance with Article 5.
4.2. The rent with respect to the buildings WAD and WAM amounts to NLG 262
per square meter and includes the services specified in annex 4.
4.3. The rent of the buildings WBC and WBD shall amount to 10% of the
investment costs. The anticipated rent amounts to NLG 2,900,000 per
year, based on the capital price of the building, which according to the
current building plan, amounts to NLG 29,000,000.
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4.4. The payment obligation with respect to the buildings WBC and WBD starts
on the date the buildings are available for occupation.
4.5. The rent shall be adjusted in accordance with Articles 4.1 - 4.4 of the
general conditions for the first time on 1 January 2000. The parties
agree that the rent will not be adjusted to the market.
4.6. The Lessor shall supply the services marked in annex 4 with respect to
the building WAD and WAM. Should the Lessee wish to hire other services
listed in annex 4, Lessor shall supply these services at the rates
mentioned therein.
4.7. If required to do so by the Lessee, the Lessor will with respect to the
buildings WBC and WBD supply the services specified in annex 4 to the
Lessee as well as site services referred to in the site service
agreement attached in annex 5, on comparable terms and conditions of
that agreement.
4.8. For every payment period shall be 1 (one) calendar month. Payments are
due on the first day of the month.
ARTICLE 5 - VALUE-ADDED (VAT)
5.1. All sums specified in this agreement shall be exclusive of VAT.
5.2. The parties agree that the Lessor shall charge the Lessee VAT on the
rent.
5.3. The Lessee herewith grants the Lessor and its legal successor(s) an
irrevocable power of attorney to file a joint application under Article
11(1)(b)(5) of the Sales Tax Xxx 0000 (application for taxed lease).
The Lessee shall on request co-sign the application and return it to the
Lessor within 14 days of receiving it from the Lessor.
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5.4. Lessee declares that it is using the leased premises for purposes which
allow it to recover at least 90% of the VAT calculated on the rent
installments. In the event this is no longer so, Lessee will report this
in writing to the Lessor.
5.5. In the event that the tax authorities, notwithstanding a properly filed
option request, do not allow a VAT taxed rent, or in the event approval
of taxed rent be withdrawn, Lessee shall compensate Lessor for its
damage as a result of the fact that part of the VAT that the Lessor
deducted when constructing the leased premises shall be reimbursed to
the tax authorities. The compensation to be paid by Lessee will occur by
way of increase of the rent, this being at most the amount of VAT that
should have been due if taxed rent was allowed.
5.6 Notwithstanding the foregoing, the Lessor is entitled to an additional
increase of the rent in accordance with the damage resulting from the
fact that it cannot recover its VAT on maintenance costs. This only
refers to the buildings WAD and WAM.
5.7 The Lessor shall supply all information and documents to the Lessee,
which reasonably can be required, with respect to its damage referred to
in this article. The Lessee shall have right to an audit with respect to
the damage claimed. The Lessor shall cooperate with such audit and make
available all books and documents reasonably required by Lessee to it
and to its accounts.
ARTICLE 6 - MISCELLANEOUS
6.1 The Lessee is, after having acquired written consent from the Lessor,
entitled to make structural and other adjustments to the leased
premises. The Lessor may give its consent conditionally, but may not
withhold its consent on unreasonable grounds. All adjustments will
remain the Lessee's property and Lessee will be entitled to remove these
adjustments unless the parties agree otherwise. They may agree the
following:
(1) the adjustments may not be taken away at the end of the lease; the
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Lessee is or is not entitled to compensation by Lessor of part of the
investments; or (2) the Lessee shall remove the adjustments at its own
costs.
6.2 The soil investigation report dated 14 November 1997 with respect to the
buildings WBC and WBD and the soil investigation report dated 28 May
1998 with respect to the buildings WAM/WAW and WAD provides a zero
situation with respect to any soil pollution possibly caused by Lessee
as referred to in Article 2.6.1 of the general conditions. These reports
are attached in annex 6.
6.3 Lessor shall promptly after signing this agreement conduct at its own
account a soil investigation with respect to the buildings WAD and WAM,
which will serve as zero situation referred to in Article 6.2.
6.4 In deviation to that determined in Articles 2.5.1 and 2.5.2 of the
general conditions, the Lessee shall comply with all the terms and
conditions of the Environmental Control Act Permit issued to Lessor and
relating to the activities performed by Lessee in the leased premises.
The Lessee has received copy of this permit. The Lessor guarantees that
the competent authorities approve of the Lessee performing its business
subject to Lessor's Environmental Control Act Permit.
6.5 The Lessor undertakes to assist the Lessee with further developing the
Internal Environmental report and to assist the Lessee with filing the
request for an Environmental Control Act Permit, should this be
necessary, without being entitled to recover the costs thereof from the
Lessee.
6.6 If the parties agree on the terms and conditions of the building plan
and provided that the Lessor obtains all required permits, consents etc.
in relation to the building plan. NPB will construct at Uniphase's
request an Assembly building adjacent to the buildings WBC/WBD. Uniphase
shall file the request at such time, that construction of the building
is effected within 60 months from the date of this agreement. In the
event NPB sells
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the leased premises on the condition that each new owner of the premises
shall be obliged to construct the Assembly building on the terms set
forth above. The Lessee shall lease this building on the same terms and
conditions of this lease. The rent shall amount to 10% of the investment
costs and the lease period shall be coterminous with the lease term of
the buildings WBC/WBD.
6.7 The Lessor shall take out insurance (opstal- en brandverzekering) with
respect to the leased premises at its own account.
6.8 In addition to that determined in Articles 2.8 and 2.10.2 under b of the
general conditions, the Lessee shall be entitled to advertise its name
and product at the entrance of and elsewhere at the Natlab site,
provided that such advertisements can be deemed to be reasonable
acceptable to the Lessor.
6.9 In deviation of that determined in Article 9 of the general conditions
both daily maintenance and structural maintenance of the buildings WBC
and WBD are at Lessee's expense. The Lessee shall conduct the
maintenance in accordance with a maintenance plan approved of by the
Lessor.
6.10 In deviation to that determined Article 17.2 and 17.3 of the general
conditions the Lessee is entitled to damages for late delivery of the
buildings WBC and WBD if and to the extent that the Lessor is entitled
recover these damages under the building contract.
ARTICLE 7 - GUARANTEE
7.1 In deviation of the determined in Article 8.1 of the general conditions,
the Lessee shall not be obliged to issue a bank guarantee, provided that
Uniphase Corporation being Lessee's parent company guarantees the
fulfillment by Lessee of its obligations resulting from this agreement.
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ARTICLE 8 - MANAGER
8.1 Subject to any statement to the contrary, the Lessor's manager shall be
The Facility Management of the Nat.lab.
ARTICLE 9 - ADDENDA
9.1 This agreement shall comprise the following addenda:
- annex 1a: drawings of the leased premises
- annex 1b: rooms and spaces leased
- annex 2: building plan WBC/WBD
- annex 3: general conditions
- annex 4: schedule of rent
- annex 5: site service agreement
- annex 6: soil investigation reports.
Drawn up and signed in triplicate originals,
/s/ M. DIJKEMA /s/ XXX XXXXX
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Lessor:Nederlandse Philips Bedrijven B.V. Lessee: Uniphase Netherlands B.V.
/s/ XXX X. XXXXXX
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Uniphase Corporation,
as guarantor
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ADDENDA
Pursuant to Item 601(b)(2) of Regulation S-K, the Addenda to the Lease Agreement
have been omitted. The Addenda will be submitted to the Securities and Exchange
Commission upon request.
