EXHIBIT 10.27
Master Lease Number_____
ADDENDUM NO. 4
PHASE 1
OPERATING LEASE
This Addendum No. 4 to that certain Agreement for Phase 1 Information Technology
Services ("Phase 1 ITS Agreement") is a Phase 1 Operating Lease ("Phase l
Operating Lease") between Electronic Data Systems Corporation, a Texas
corporation ("EDS"), and Spectradyne, Inc., a Delaware corporation
("Spectradyne"), dated as of July 28, 1993 (and including subsequent addendums),
is made and entered into by and between EDS and Spectradyne as of January l,
1995.
RECITALS
WHEREAS, EDS and Spectradyne intend to confirm, by this Phase l Operating Lease,
the status of EDS's ownership of, and Spectradyne's rights and obligations with
respect to, the equipment listed on Schedule 1.l, which equipment is being
leased pursuant to this Phase 1 Operating Lease, subject to the right (as set
out herein) of Spectradyne to purchase all of such equipment at the greater of
the residual value or the fair market value at the end of the Base Term or any
Renewal Term (as defined herein); and
NOW, THEREFORE, in consideration of these premises and agreements set forth
herein, and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, EDS and Spectradyne hereby agree to
undertake all rights and obligations under the terms and conditions of this
Phase 1 Operating Lease.
ARTICLE I
LEASE
1.1 Lease. Subject to the terms and conditions herein, EDS hereby agrees to
lease to Spectradyne, and Spectradyne agrees to lease from EDS, the
equipment listed in Schedule 1.1 that is part of the compressed digital
video network installed, operated and managed by EDS for Spectradyne
(collectively, the "Equipment").
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ARTICLE II
TERM
2.1 Original Term. The Term of this Phase 1 Operating Lease shall commence on
January l, 1995 and, subject to the terms hereof, this Phase 1 Operating
Lease shall continue for a base term through December 31, 1997 ("Base
Term").
2.2 Renewal Term. Unless and until EDS receives Spectradyne's Notice to
Terminate (as defined herein), the term shall renew for successive one-year
renewal terms (each, a "Renewal Term"), each such respective Renewal Term
to continue until and through the last day of such additional one year
period.
2.3 Termination. Upon giving written notice to EDS at least 90 days prior to
the expiration of the Base Term or any Renewal Term ("Spectradyne's Notice
to Terminate"), as the case may be, Spectradyne may terminate this Phase l
Operating Lease as of the expiration of such Base Term or such Renewal
Term, as the case may be.
ARTICLE III
RENT
3.1 Rent. Spectradyne agrees to pay EDS in cash (by check or wire transfer)
the rental payments (individually, a "Rent Payment" and collectively, "Rent
Payments") with respect to the Equipment in the amounts set out on
Schedule 3.1. Except for the Rent Payments for January, February and March
of 1995, Rent Payments shall be paid in full in arrears on or before the
last day of each calendar month in the amounts set out in such Schedule
3.1, and such Rent Payments shall become "past due" if not paid on or
before the last day of the respective month (or on the next business day if
such last day is not a business day) and shall be paid by Spectradyne on
such last day (or next business day if such day is not a business day).
The Rent Payments for January, February and March of 1995 are (i) subject
to the Minimum Payments provided for in that certain Special Provisions
Agreement ("Special Provisions Agreement") among EDS, EDS Technical
Products Corporation, Spectradyne and SpectraVision, Inc. (formerly, SPI
Holding, Inc.) ("SpectraVision"), dated as of January l, 1995; (ii) shall
accrue interest at the annual rate of 11 1/2% commencing on the first
day of the month immediately following the calendar month covered by such
Rental Payment and ending on the earlier of August 31, 1995 and the date
paid; (iii) shall be paid by
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Spectradyne, with interest if applicable, in accordance with the
aforementioned Minimum Payments but in no event later than August 31, 1995;
and (iv) shall become "past due" if not paid on or before August 31, 1995.
3.2 Past Due Rent. Spectradyne agrees to pay EDS interest at the annual rate
of 11-1/2% on each Rent Payment starting from the date such Rent Payment
becomes past due and continuing through the date of the full payment of
said Rent Payment. Acceptance of overdue Rent Payments or interest thereon
shall in no event constitute a waiver of Spectradyne's default or prevent
EDS from exercising any other of its rights herein or otherwise.
3.3 Non-Cancelable Rent and Lease Obligations. This is a net lease.
SPECTRADYNE'S OBLIGATION TO PAY ALL AMOUNTS DUE UNDER THIS LEASE SHALL BE
ABSOLUTE, UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY SET-OFF, COUNTER
CLAIM, ABATEMENT, REDUCTION, RECOUPMENT, INTERRUPTION, DEFENSE FOR ANY
REASON WHATSOEVER AGAINST EDS OR ITS ASSIGNEE, INCLUDING WITHOUT LIMITATION
DEFECTS OR FAILURE IN, LOSS OF USE OR POSSESSION OF, OR DISCONTINUANCE OF
THE EQUIPMENT. THIS LEASE CANNOT BE PREPAID OR TERMINATED BY SPECTRADYNE
UNLESS AGREED TO IN WRITING BY EDS.
3.4 Location of Payment. The payments pursuant to this Article III shall be
made to EDS at such location as directed by EDS from time to time by
invoice or other writing from EDS.
ARTICLE IV
EQUIPMENT OWNERSHIP
USE, MAINTENANCE, AND PROTECTION
4.1 Ownership and Use. Subject to Section 9.5 hereof, the Equipment shall at
all times during this Phase l Operating Lease be owned by EDS. Spectradyne
will not assert any right of ownership in and to the Equipment.
Spectradyne shall use, operate, maintain and store the Equipment in a
careful and proper manner, and shall comply with all laws, ordinances,
rules, regulations, requirements and recommendations relating directly or
indirectly to the Equipment issued by any governmental unit, insurer, or
the Equipment's manufacturer. Spectradyne, upon EDS's request, will affix
to, keep and maintain on, in a plain and conspicuous manner, any item of
Equipment plates
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or markings indicating EDS's ownership of the Equipment. EDS may upon
reasonable prior notice to Spectradyne and during regular business hours
inspect the Equipment.
4.2 EDS's Entitlement To Tax Benefits. Spectradyne acknowledges that EDS will
claim all tax benefits of ownership. Spectradyne will, if requested by
EDS, furnish EDS with records and information necessary for tax purposes.
Spectradyne will not take, refrain or omit to take, and will not permit any
permitted sublessee or assignee to do the same, any action that may result
in the disqualification of the Equipment for, or any recapture of, all or
any portion of the tax benefits afforded the Equipment under the Internal
Revenue Code of 1986, as amended.
4.3 Improvements. Any accessory, feature, device, improvement, modification,
addition, accession, or upgrades to the Equipment shall be the property of
EDS and subject to the lease hereunder.
4.4 Maintenance. Maintenance of the Equipment will be as provided in Section
4.5 and 6.6 of the Phase 1 ITS Agreement.
4.5 Residual Value. EDS and Spectradyne agree that the "residual value" of the
Equipment may be difficult to ascertain. EDS and Spectradyne have
stipulated on Schedule 3.1 as to the "residual value" of the Equipment (the
"Residual Value").
ARTICLE V
RISK OF LOSS AND CLAIMS PAYMENT PROCEDURES
5.1 Risk of Loss. Risk of loss with respect to the Equipment will be allocated
as provided in Section 14.3 of the Phase 1 ITS Agreement.
5.2 Notice of Loss or Damage. Spectradyne shall advise EDS in writing within
10 days of any such loss or damage.
5.3 General Indemnity. Spectradyne shall indemnify, hold harmless, and, if so
requested by EDS, defend EDS and its predecessors, successors, assigns,
officers, directors, agents and employees against all claims ("Claims")
directly or indirectly arising out of or connected with the Equipment
except to the extent such Claims result from negligent or willful damage or
destruction by
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EDS, its employees, agents or contractors. Claims refers to all losses,
liabilities, damages, penalties, expenses (including reasonable legal fees
and costs), claims, actions and suits, whether in contract or in tort and
whether based on a theory of strict liability or otherwise, and includes,
without limitation to, matters regarding: (a) the selection, manufacture,
purchase, acceptance, rejection, ownership, delivery, lease, possession,
maintenance, use, condition, return or operation of the Equipment; (b) any
latent defects or other defects in any Equipment, whether or not
discoverable by EDS or by Spectradyne; (c) any patent, trademark, or
copyright infringement; and (d) the condition of any Equipment arising or
existing during Spectradyne's use.
ARTICLE VI
SPECTRADYNE'S REPRESENTATIONS,
WARRANTIES AND COVENANTS
6.1 Representations and Warranties. Spectradyne represents, warrants and
covenants to EDS that as of the time of entering into this Phase 1
Operating Lease: (i) Spectradyne's execution, delivery and performance of
this Phase l Operating Lease have been duly authorized by all necessary
action on the part of Spectradyne and this Phase 1 Operating Lease
constitutes the legal, valid and binding obligation of Spectradyne and (ii)
the execution and delivery by Spectradyne of this Phase l Operating Lease
does not conflict with or result in a breach of any of the provisions of
Spectradyne's organizational documents, applicable law, judgment, order,
writ, injunction, decree, rule or regulation propounded by any organization
having authority over Spectradyne, or of any agreement or other instrument
to which Spectradyne is a party or by which it is bound, or constitutes a
default under any thereof.
6.2 Providing Financial Information. Spectradyne will promptly furnish EDS
SpectraVision's public or private financial statements as they become
generally available to others.
6.3 Assignment or Transfer. EXCEPT AS OTHERWISE PROVIDED IN SECTION 15.8 OF
THE PHASE I ITS AGREEMENT, SPECTRADYNE SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF EDS, TRANSFER, SUBLEASE, ASSIGN, PLEDGE OR HYPOTHECATE THIS
PHASE l OPERATING LEASE, THE EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST
THEREIN. EXCEPT AS OTHERWISE PROVIDED IN SECTION 15.8 OF THE PHASE I ITS
AGREEMENT, SPECTRADYNE
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FURTHER COVENANTS THAT DURING THE TERM HEREOF SPECTRADYNE WILL GIVE EDS
PRIOR WRITTEN NOTICE OF ITS CONSOLIDATION, MERGER OR OTHER TYPE
COMBINATION, WITH ANY OTHER CORPORATION OR ENTITY, OR THE SALE, LEASE OR
OTHER DISPOSAL OF ALL OR SUBSTANTIALLY ALL OF SPECTRADYNE'S PROPERTIES.
EDS MAY TRANSFER, ASSIGN OR OTHERWISE CONVEY THIS PHASE l OPERATING LEASE,
THE EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST THEREIN TO AN AFFILIATE
OF EDS.
6.4 No Creation Of Liens. Spectradyne will not directly or indirectly create,
incur, assume or suffer to exist any mortgage, pledge, charge, encumbrance,
security, right, or claim of any kind ("Lien") on or with respect to any of
the Equipment. Spectradyne will promptly notify EDS in writing of the
existence of any Lien and will promptly, at Spectradyne's expense, cause
any such Lien to be duly discharged, dismissed and removed or fully bonded
as soon as possible, but in any event within thirty (30) days after the
existence of the same shall have first become known to Spectradyne or
sooner, if necessary, to prevent the loss of possession of any Item of
Equipment.
6.5 Payment Of Applicable Taxes. If required by law or directed to do so by
EDS, Spectradyne shall prepare and file all necessary forms for the
assessments of taxes of any type and nature, and immediately send to EDS a
copy of such filing. Spectradyne will reimburse (or pay directly, but only
if notified to do so by EDS), indemnify and hold EDS harmless from, all
licenses, registration fees, sales, use, personal property, stamp or other
taxes, levies, imports, duties, charges, assessments or withholdings of any
nature whatsoever (other than those measured by EDS's net income) together
with any penalties, fines or interest thereon imposed against EDS,
Spectradyne or the Equipment (but only if EDS's acts or omissions did not
cause the same).
6.6 Further Assurances and Payment of EDS's Expenses. Spectradyne will
promptly execute and deliver or cause to be executed and delivered, to EDS
such further documents and take such further action as EDS may from time to
time request in order to more effectively carry out the intent and purpose
of this Phase l Operating Lease and to protect the rights of EDS confirmed
and remedies of EDS created or intended to be created hereunder.
Spectradyne shall pay all reasonable costs and expenses incurred by EDS; in
collecting or attempting to collect any sums owed under this Phase l
Operating Lease or in enforcing any of EDS's rights or remedies pursuant to
this Phase l Operating
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Lease. Spectradyne also covenants to obtain no later than February 15,
1995 ratification by its Board of Directors of the execution, delivery and
performance of this Phase 1 Operating Lease.
ARTICLE VII
EDS RIGHTS
7.1 Assignment. Except as otherwise provided herein, the rights of EDS and
Spectradyne with respect to assignment are as provided in Section 15.8 of
the Phase l ITS Agreement.
7.2 EDS's Performance of Spectradyne's Obligations. EDS shall have the right,
but not the obligation, without releasing Spectradyne from any obligation
hereunder, should Spectradyne fail to make any payment hereunder or do any
act as herein provided, to make or do the same and to pay, purchase,
contest or compromise any Lien not permitted hereunder which in EDS's
judgment appears to affect the Equipment or EDS's rights with respect
thereto, and in exercising any such rights, incur any liability and expend
whatever amounts in its discretion it may deem necessary therefor. All
sums so incurred or expended by EDS shall be immediately due and payable by
Spectradyne and shall bear interest at the annual interest rate at 11-1/2%,
from the date so incurred or expended by EDS to the date EDS is reimbursed
therefor by Spectradyne.
7.3 File Appropriate Financing Statements. EDS may at its option complete and
file, with such authorities and at such locations as it may deem
appropriate, Uniform Commercial Code financing statements signed by EDS
only, relating to any of the Equipment. If EDS and Spectradyne agree the
Item(s) of Equipment are movable as defined by Chapter 9.103(c) of the
Texas Business and Consumers Code, they shall note their agreement in
writing and EDS may file appropriate financing statements in the political
subdivision of Spectradyne's home office. Spectradyne will promptly notify
EDS in writing of a change of its home offices. The expense associated
with the filing of Uniform Commercial Code financing statements, whether
signed by EDS or Spectradyne, shall be borne by Spectradyne.
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ARTICLE VIII
DEFAULT AND REMEDIES
8.1 Events of Default. An "Event of Default" shall occur hereunder if
Spectradyne (a) fails to pay any installment of Rent or other payment
required hereunder no later than 10 days after the day when due; or (b)
fails to make any payment described in Section 1.1 of the Special
Provisions Agreement no later than 10 days after the date when due; or (c)
without EDS's consent, attempts to remove, sell, transfer, encumber, part
with possession of, or sublet any item of Equipment; or (d) becomes
insolvent or makes an assignment for the benefit of creditors, or a trustee
or receiver shall be appointed for Spectradyne or for a substantial part of
its property, or institutes or has instituted against it bankruptcy,
reorganization or insolvency proceedings (and in the case of the
appointment of a trustee or receiver upon an action instituted by a party
other than Spectradyne or SpectraVision or in the case of proceedings
instituted by a party other than Spectradyne or SpectraVision, such
appointment or proceedings are not dissolved within sixty (60) days); or
(e) makes or fails to make any statement, representation or warranty in
this Phase l Operating Lease or any application, certificate, financial
report or other document that if made or omitted is false or misleading in
any material respect; or (f) creates or permits to be created any lien
against any of the Equipment that is not discharged within thirty (30) days
of its creation; or (g) merges, combines with, or in any way changes its
present legal structure in such a manner which would in the opinion of EDS
have a material adverse effect upon the Spectradyne's abilities to perform
its obligation under this Phase 1 Operating Lease; or (h) fails to obtain
by February 15, 1995 ratification by its Board of Directors of the
execution, delivery and performance of this Phase 1 Operating Lease no
later than February 15, 1995.
8.2 Remedies. If an Event of Default occurs, EDS may, in its sole discretion,
exercise one or more of the following remedies: (a) terminate this Phase l
Operating Lease; or (b) take possession of, or render unusable, any
Equipment wherever the Equipment may be located, without demand or notice,
without any court order or other process of law and without liability to
Spectradyne for any damages occasioned by such action, and such action
shall not constitute a termination; or (c) require Spectradyne to deliver
the Equipment at a location designated by EDS; or (d) proceed by court
action to enforce performance by Spectradyne and/or to recover all damages
and expenses incurred by EDS by reason of any Event of Default; or (e)
exercise any other
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right or remedy available to EDS at law or in equity; or (f) exercise its
rights pursuant to Article II of the Special Provisions Agreement. Also,
Spectradyne shall pay EDS all costs and expenses (including reasonable
legal fees and costs and fees of collection agencies) incurred by EDS in
enforcing any of the terms, conditions or provisions of this Phase l
Operating Lease. Upon repossession or surrender of any of the Equipment,
EDS shall lease, sell or re-lease such Equipment in a commercially
reasonable manner, with or without notice and at public or private sale,
and apply the net proceeds (net proceeds shall mean the rents paid and
payable during the remaining Base Term or the then current Renewal Term, as
the case may be, thereof after deducting all expenses incurred in
connection therewith) to, first, the Residual Value of the Equipment and,
then, any other amount owed to EDS hereunder; provided, however, that
Spectradyne shall remain liable to EDS for any deficiency that remains
after any sale, lease or release of such Equipment. Spectradyne agrees that
with respect to any notice of a sale required by law to be given, 10 days'
notice shall constitute reasonable notice. These remedies are cumulative
of every other right or remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced
concurrently therewith or from time to time.
ARTICLE IX
GENERAL MATTERS
9.1 Captions: Counterparts: Integration: Entire Phase l Operating Lease.
The captions contained in this Phase I Operating Lease are for convenience
only and shall not affect the interpretation of this Phase l Operating
Lease. This Phase l Operating Lease and all attachments hereto executed by
both EDS and Spectradyne, constitute the entire Phase l Operating Lease
between EDS and Spectradyne relating to the leasing of the Equipment, and
supersede all prior leases relating thereto, whether written or oral, and
may not be amended or modified except in a writing signed by the parties
hereto.
9.2 Filing Fees; Notices. Upon demand, Spectradyne will promptly reimburse EDS
for any filing or recordation fees or expenses (including lien search fees,
legal fees and costs incurred by EDS in consummation of this Phase l
Operating Lease or approval of a permitted assignment or transfer by
Spectradyne. All notices under this Phase 1 Operating Lease shall be sent
to the respective party at its address set forth under its signature to
this Phase l Operating Lease or at such other address as the parties may
provide to each other in
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writing from time to time. Notice shall be deemed made (i) when mailed to
said address shall be effective when deposited in the United States mail,
duly addressed and with first class postage prepaid; (ii) when received by
from a recognized courier service with proof of delivery thereof; (iii)
when delivered personally; or (iv) when received at a facsimile receiving
station which clearly identifies the recipient.
9.3 EDS's Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THE PHASE
1 ITS AGREEMENT, EDS HAS NOT MADE AND DOES NOT MAKE, BY VIRTUE OF HAVING
LEASED THE EQUIPMENT UNDER THIS LEASE OR BY VIRTUE OF ANY NEGOTIATIONS IN
RESPECT OF THIS LEASE, ANY REPRESENTATIONS OR WARRANTY, EXPRESS OR IMPLIED,
AS TO TITLE, CONDITION, COMPLIANCE WITH SPECIFICATIONS OR REGULATIONS,
QUALITY, VALUE, DURABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR USE
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT. EXCEPT AS OTHERWISE
PROVIDED IN PHASE 1 ITS AGREEMENT, THE EQUIPMENT IS LEASED HEREUNDER BY EDS
"AS-IS." EXCEPT AS OTHERWISE PROVIDED IN THE PHASE 1 ITS AGREEMENT,
SPECTRADYNE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT FROM THE VENDOR
THEREOF ON THE BASIS OF SPECTRADYNE'S JUDGMENT AND EXPRESSLY DISCLAIMS ANY
RELIANCE UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY EDS OR ITS AGENTS.
This disclaimer does not alter EDS's obligations under Article VIII of the
Phase l ITS Agreement, which obligations are hereby reaffirmed (but not
extended beyond the time frames provided for in such Phase l ITS Agreement)
with respect to the Equipment to the extent such obligations exist as of
January l, 1995.
9.4 No Waiver: EDS Approval. Any failure of EDS to require strict performance
by Spectradyne, or any written waiver by EDS of any provision hereof, shall
not constitute consent or waiver of any other breach of the same or any
other provision hereof.
9.5 Purchase Option. Provided Spectradyne is not in default hereunder,
Spectradyne shall have the option to purchase, at the expiration of the
Base Term or any Renewal Term, all of the Equipment at the greater of (i)
the
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Residual Value or (ii) the fair market value. As used herein with respect
to the Equipment, "fair market value" means the value of such Equipment at
the time Spectradyne gives its written notice to EDS to exercise this
Purchase Option with respect to the Equipment, such value to be determined
as follows: EDS and Spectradyne shall in good faith each determine the
fair market value of such Equipment. If, within 30 days of the date of
Spectradyne's notice to exercise this Purchase Option, EDS and Spectradyne
cannot agree on the same fair market value for such Equipment, then within
15 days of the expiration of such 30 day period, each of EDS and
Spectradyne shall appoint one appraiser experienced in valuing items such
as the Equipment. If either party fails to notify the other party of the
appointment of its appraiser within or by the time above specified, then
the appointment of the second appraiser shall be made in the same manner as
hereinafter provided for the appointment of a third appraiser in a case
where the two appraisers appointed hereunder and the parties are unable to
agree upon such appointment. The appraisers so chosen shall meet within 10
days after the second appraiser is appointed and if, within 30 days after
such first meeting, the two appraisers shall be unable to agree upon the
fair market value of such Equipment, they shall appoint a third appraiser
who shall also be an expert in the valuation of items such as the
Equipment; and in the event of their being unable to agree upon such
appointment within 15 days, then such third appraiser shall be selected by
the parties if they can agree thereon - within a further period of 15 days.
If the parties do not so agree, then either party may apply to a court of
competent jurisdiction for the appointment of such third appraiser. In the
event of the failure, refusal or inability of any appraiser to act, his
successor shall be appointed within 10 days by the party who originally
appointed him or in the event such party shall fail so to appoint such
successor, or in case of the third appraiser, his successor shall be
appointed as hereinbefore provided. Within 30 days after the appointment
of such third appraiser each of the three appraisers shall submit his
determination of the fair market value of such Equipment. Notwithstanding
anything to the contrary contained in this Section 9.5, if the
determinations of the first two appraisers differ by 5% or less from the
higher of the two appraisals, there shall be no third appraiser and the
average of the determinations of the first two appraisers shall be binding
and conclusive on the parties. If the determinations of the first two
appraisers shall differ to a greater extent, then the average of the
appraisals rendered by all three appraisers shall be binding and conclusive
on the parties. If, however, the lowest or the highest of the three
appraisals, or both, varies by more than 10% from the middle appraisal, the
appraisal or appraisals so
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varying shall be disregarded, and if only one appraisal remains, such
appraisal shall be determinative and shall be binding and conclusive on the
parties. Each party shall pay the fees and expenses of its respective
appraiser and both shall share the fees and expenses of the third
appraiser, if any. Written notice to EDS to exercise this Purchase Option
shall be made at the same time as the Notice to Terminate is given to EDS.
9.6 Governing Law and Jurisdiction. THIS PHASE l OPERATING LEASE IS MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS. EDS AND SPECTRADYNE
CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED
WITHIN THE STATE OF TEXAS, AND WAIVE ANY OBJECTION RELATING TO IMPROPER
VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH
COURT.
9.7 Time. Time is of the essence of this Lease, the Schedule and each and all
provisions of each Lease.
9.8 Quiet Enjoyment. So long as an Event of Default has not occurred and if
occurred is not continuing, EDS and its assigns shall not interfere with
Spectradyne's right of quiet use and enjoyment of the Equipment.
9.9 Survival of Certain Terms. All obligations of Spectradyne to make payments
to EDS under any lease, or to indemnify EDS, pursuant to the terms hereof
shall survive termination of such Lease.
9.10 Phase 1 ITS Agreement. Except as modified or amended in this Phase 1
Operating Lease, the Phase l ITS Agreement will be, and remains, in full
force and effect in accordance with it terms. Where there is a conflict
between the provisions this Phase l Operating Lease and the provisions of
the Phase l ITS Agreement, this Phase 1 Operating Lease controls. In
addition, the provisions of the Phase 1 ITS Agreement regarding
confidentiality (Section 11.8 thereof), dispute resolution (Article XII
thereof) and public disclosure (Section 15.4 thereof) are incorporated
herein and made a part hereof as if fully set out in this Phase 1 Operating
Lease.
9.11 Relationship of Parties. EDS is performing pursuant to this Phase l
Operating Lease only as an independent contractor. EDS has the sole
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed
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its obligations set forth in this Phase l Operating Lease, except as
otherwise agreed upon in writing by the parties. Nothing set forth in this
Phase 1 Operating Lease will be construed to create the relationship of
principal and agent between EDS and Spectradyne. EDS will not act or
attempt to act or represent itself, directly or by implication, as an agent
of Spectradyne or Spectradyne's customer(s) or in any manner assume or
create, or attempt to assume or create, any obligation on behalf of, or in
the name of, Spectradyne or Spectradyne's customer(s).
9.12 Legal Counsel. Each of the parties hereto consulted, and was represented
by, legal counsel.
SPECTRADYNE BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE,
ACKNOWLEDGES THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND
BY ITS TERMS AND CONDITIONS.
LESSEE: SPECTRADYNE, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Address: 1501 North Plano Road
Richardson, Texas 75081
LESSOR: ELECTRONIC DATA SYSTEMS
CORPORATION
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Address: 5400 Legacy Drive
Plano, Texas 75024
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