<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K 405/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1994
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER: 1-9724
SPECTRAVISION, INC.
(Exact Name of Registrant as specified in its charter)
DELAWARE 75-2182004
(State of Incorporation) (I.R.S. Employee Identification No.)
1501 NORTH PLANO ROAD, RICHARDSON, TEXAS 75083-0775
(Address of Principal Executive Offices) (Zip code)
Registrant's telephone number, including area code: (214) 234-2721
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
- ------------------- -------------------
<S> <C>
Class B Common Stock, $0.001 Par Value American Stock Exchange
Contingent Value Rights American Stock Exchange
11.65% Senior Subordinated Reset Notes, due 2002 American Stock Exchange
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No ___
-
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the Registrant's Class B Common Stock held by
non-affiliates of the Registrant as of March 24, 1995: $6,050,587. There is no
established public trading market for the Registrant's Class A Common Stock. As
of March 24, 1995, there were 19,390,379 shares of the Registrant's Class B
Common Stock outstanding and 4,593,526 shares of Class A Common Stock
outstanding.
<PAGE>
APPLICABLE ONLY TO REGISTRANTS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Indicate by check mark whether the Registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [X] No ___
-
DOCUMENTS INCORPORATED BY REFERENCE
None.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PART III................................................................. 1
Item 10. Directors and Executive Officers of the Registrant........ 1
Item 11. Executive Compensation.................................... 5
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................... 10
Item 13. Certain Relationships and Related Transactions............ 12
PART IV.................................................................. 13
Item 14. Exhibits, Financial Statements, Schedules and Reports on
Form 8-K...................................................... 13
</TABLE>
i
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
- -------------------------------------------------------------
The following sets forth the certain information regarding the directors and
executive officers of the Company.
<TABLE>
<CAPTION>
Name Age Position
- -------------------- --------- -------------------------
<S> <C> <C>
Gary G. Weik 49 Chief Executive Officer
Richard M. Gozia 50 Executive Vice President and
Chief Financial Officer
Harry S. Budow 34 Senior Vice President,
Marketing and Business
Development, Spectradyne,
Inc.
Elaine Parrish 45 Senior Vice President, Sales and
Affiliate Marketing,
Spectradyne, Inc.
Howard D. Gardner 37 Senior Vice President of
Technology and Network
Operations, Spectradyne, Inc.
Janet L. Dalicandro 40 Vice President of International
Operations, Spectradyne, Inc.
John Berardi 52 Director
Michael C. Colleran 42 Director
John Davis 40 Director
Marvin Davis 69 Director
Leonard Goldberg 61 Director
Gerald S. Gray 66 Director
Sidney Poitier 68 Director
Michael J. Seibert 39 Director
Stephen D. Silbert 52 Director
Skip Victor 39 Director
Kenneth Ziffren 54 Director
Albert D. Jerome 52 Director
</TABLE>
Gary G. Weik became Chief Executive Officer of the Company and its
subsidiaries in September 1994. Prior to joining the Company, Mr. Weik was
president and chief
<PAGE>
operating officer of KBLCOM, one of the nation's largest cable TV multiple
system operators. During 1988 and 1989, Mr. Weik owned and operated WGA
Communications, an independent cable company. Prior to 1988, he was president
and chief executive officer of Harte-Hanks Cable Company, a subsidiary of Harte-
Hanks Communications, Inc.
Richard M. Gozia became Executive Vice President and Chief Financial
Officer of the Company and its subsidiaries in October 1994. Mr. Gozia was
previously president and chief executive officer of Wyatt Cafeterias, Inc. from
1992 to 1994. From 1986 to 1991 Mr. Gozia was president and chief executive
officer of Gozia-Driver Media, Inc., a media investment company. From 1982 to
1986 he was vice president and chief financial officer of Harte-Hanks
Communications, Inc.
Harry S. Budow is Senior Vice President of Marketing and Business
Development for Spectradyne. Before joining Spectradyne in March 1990, Mr. Budow
was Vice President of Marketing and Engineering for Voice Response, Inc., a
provider of interactive voice response systems, from September 1989 to February
1990 and an executive director of European operations for VMX Inc., a developer
of voice mail systems, from 1986 to 1989.
Elaine Parrish became Senior Vice President of Sales and Affiliate
Marketing of Spectradyne, Inc. in December 1994. Prior to joining Spectradyne,
Ms. Parrish was Senior Vice President of Cable Marketing and Sales of StarSight
Telecast, Inc. from May 1993 to December 1994. From February 1983 to May 1993,
Ms. Parrish was with Showtime Networks, Inc., most recently as Vice President of
National Accounts.
Howard D. Gardner has been Senior Vice President of Technology and Network
Operations for Spectradyne since November 1993. From 1984 to 1993, Mr. Gardner
served in various capacities, most recently as Divisional General Manager, with
SRX Inc., a developer and manufacturer of digital telecommunications systems for
business and public safety markets.
Janet L. Dalicandro has been Vice President of International Operations for
Spectradyne since April 1995. From August 1991 to March 1995, Ms. Dalicandro was
Vice President and Managing Director of SpectraVision of Canada, Inc. Prior to
joining the Company, Ms. Dalicandro was Vice President and General Manager for
Granada Canada Limited, a supplier of television and video products to the
Canadian lodging industry from May 1987 to July 1991.
John F. Berardi has been a Director of the Company since November 1992. Mr.
Berardi has been Executive Vice President and Chief Financial Officer of
Farmland Industries, Inc., a cooperative farm supply, marketing and processing
operation and retail and service operation since March 1992. From July 1990 to
February 1992, Mr. Berardi was a Principal of Berardi and Associates, financial
consultants. From April 1978 to June 1990, Mr. Berardi held various positions,
including Executive Vice President and Chief Financial Officer with Harcourt
Brace Jovanovich, Inc., a publishing company. Mr. Berardi is a member of the
Audit Committee.
2
<PAGE>
Michael C. Colleran has been a Director of the Company since November 1992.
Mr. Colleran has also served as the Executive Vice President of Davis Companies,
an investment company, and the Chief Financial Officer for Miller-Davis Company,
a real estate development general partnership, since May 1988. Mr. Colleran is a
member of the Executive Committee and the Audit Committee.
John Davis has been a Director of the Company since November 1992. Mr.
Davis has been President and a Director of Davis Entertainment Company, a motion
picture and television production company, since November 1985; Vice President
of Davis Companies, an investment company, since December 1986 and Director
since April 1989; President and a Director of Davis Entertainment Television, a
television production company, since 1988; President and a director of Davis
Films, Inc., a motion picture production company, since January 1987; and
President and a Director of both Azur Communications Corporation and Bramble
Communications Corporation, both television broadcast station companies, since
December 1988. Mr. Davis is the son of Mr. Marvin Davis, a Director of the
Company. Mr. Davis is a member of the Executive Committee.
Marvin Davis has been a Director of the Company since April 1989 and is the
principal partner of Rainbow Company. Mr. Davis has been President and Director
of Davis Companies, an investment company, from October 1986 to present;
Managing General partner of Davis Oil Company, an independent oil and gas
general partnership, from 1960 to present; Managing General Partner of MD Co.,
an investment company, which is a General Partner of Miller-Klutznick-Davis-Gray
Co. (now known as MKDG Co.), a real estate development general partnership, from
March 1982 to present; General Partner of Miller-Davis Company, a real estate
development general partnership, from January 1978 to present. Mr. Davis is the
father of John Davis, a Director of the Company.
Leonard Goldberg has been a Director of the Company since October 1989. Mr.
Goldberg was President and Chief Operating Officer of Twentieth Century Fox Film
Corporation from December 1986 until May 1989. Mr. Goldberg has been directly
involved in the production of many feature films for both the movie and
television industries. Mr. Goldberg is a member of the Compensation Committee.
Gerald S. Gray has been a Director of the Company since April 1989. Mr.
Gray has also served as Senior Vice President of Davis Companies, an investment
company, since January 1987; Chief Financial Officer of Davis Oil Company, an
independent oil and gas partnership, since 1977; Managing General Partner of GSG
Company, an investment company, which is a General Partner of Miller-Klutznick-
Davis-Gray Co. (now known as MKDG Co.), a real estate development general
partnership, since March 1982; and General Partner of Miller-Davis Company, a
real estate development general partnership, since January 1978. Mr. Gray is
presently a Director of Children's Diabetes Foundation in Denver, Colorado. Mr.
Gray is a member of the Executive Committee and the Audit Committee.
Sidney Poitier has been a Director of the Company since October 1992. Mr.
Poitier is an actor, producer and director. He has been President of Verdon
Cedric Productions, a
3
<PAGE>
film production company, since 1962. In 1994, Mr. Poitier was appointed as a
member of the Board of Directors of The Walt Disney Company, a major producer
and distributor of film entertainment. Mr. Poitier is a member of the
Compensation Committee.
Michael J. Seibert has been a Director of the Company since November 1993.
Mr. Seibert has been Vice President of Davis Companies, an investment company,
since August 1989.
Stephen D. Silbert has been a Director of the Company since May 1994. Mr.
Silbert has been of counsel to the law firm of Christensen, White, Miller, Fink
and Jacobs since 1991. From 1986 to November 1990, Mr. Silbert served in various
capacities, including Chairman of the Board of Directors and Chief Executive
Officer, and President and Chief Operating Officer, with MGM/UA Communications
Co., a production company. From November 1990 to May 1991, Mr. Silbert served as
Vice Chairman of MGM-Pathe Communications Co., a production company.
Skip Victor has been a Director of the Company since November 1992. Mr.
Victor has been Executive Vice President and Principal of Chanin and Company, a
financial advisory firm, since 1990. From July 1987 to February 1990, Mr. Victor
was Vice President Corporate Finance at Drexel Burnham Lambert, Inc. He is a
director of BDK Holdings, a holding company with entities that manufacture and
distribute kitchen textiles and other household products. Mr. Victor also is a
director of Bucyrus-Erie Company, a manufacturer of mining equipment, and
California Beach Restaurants, Inc., a restaurant company.
Kenneth Ziffren has been a Director of the Company since May 1989. Mr.
Ziffren is presently Senior Partner of Ziffren, Brittenham, Branca & Fischer
(Attorneys at Law) and has been with that firm since 1978. Mr. Ziffren is also a
director of City National Corp., a one-bank holding company, and Marvel
Entertainment Group, Inc., a comic book publisher. Mr. Ziffren is a member of
the Audit Committee and the Compensation Committee.
Albert D. Jerome has been a Director of the Company since November 1991.
From November 1991 to September 1994, Mr. Jerome served as Chief Executive
Officer of the Company. From November 1982 to October 1991, Mr. Jerome was
President of NBC Television Stations. Prior to November 1982, Mr. Jerome held
various positions with NBC, CBS and ABC. Mr. Jerome was formerly Chairman of the
Board and is presently a director of the Foundation for Minority Interest in
Media, a non-profit organization.
Mr. Victor was selected as a director during the Company's 1992
restructuring pursuant to an understanding with the Company's preferred
stockholders, and Mr. Berardi was selected as a director during the Company's
1992 restructuring pursuant to an understanding with the Company's bondholders.
Compliance with Section 16 Reporting Requirements. To the Company's
knowledge, based solely on a review of the copies of reports furnished to the
Company and, in certain instances, written representations that no additional
reports were required, during the fiscal year ended December 31, 1994, all of
the Company's officers,
4
<PAGE>
directors and holders of more than 10% of its Common Stock timely filed all
reports required by Section 16(a) of the Securities Exchange Act of 1934, as
amended.
ITEM 11. EXECUTIVE COMPENSATION
- --------------------------------
COMPENSATION OF EXECUTIVE OFFICERS
The Summary Compensation Table includes individual compensation information
on the two individuals who served as Chief Executive Officer of the Company
during 1994 and the four other most highly paid executive officers who served
during 1994 (two of whom have since resigned) for services rendered in all
capacities during the years ended December 31, 1994, 1993 and 1992. No
compensation information is given for executive officers who joined the Company
late in 1994 and received less than $100,000 in compensation from the Company in
that year.
5
<PAGE>
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSATION
------------------- ------------
Number of
Other Securities
Name and Annual Underlying All Other
Principal Position Year Salary Bonus Comp./2/ Options Compensation/3/
- -------------------------- ------ ---------- --------- -------- ------------ ---------------
<S> <C> <C> <C> <C> <C> <C>
Gary G. Weik/1/ 1992 --- --- --- --- ---
Chief Executive 1993 --- --- --- --- ---
Officer 1994 $159,195 $319,000 --- --- ---
Harry S. Budow 1992 147,127 --- --- --- $ 5,016
Senior Vice President 1993 151,117 150,000 --- --- 4,497
Marketing & Business 1994 205,540 --- --- 50,366 4,732
Development,
Spectradyne, Inc.
Howard D. Gardner 1992 --- --- --- --- ---
Senior Vice President 1993 15,845 --- --- --- ---
Technology & Network 1994 117,007 --- --- 17,988 2,572
Operations,
Spectradyne, Inc.
Janet L. Dalicandro/4/ 1992 84,719 651 --- --- 4,236
Vice President of 1993 84,661 10,539 --- --- 4,233
International 1994 106,749 52,154 --- 7,195 5,338
Operations,
Spectradyne, Inc.
Albert D. Jerome 1992 627,977 150,000 $57,857 --- 87,704
Former President & 1993 622,654 175,000 --- --- 7,870
Chief Executive Officer 1994 637,259 --- --- --- 8,142
Danny G. Hair/5/ 1992 188,017 --- --- --- 4,873
Former Vice President 1993 196,770 125,000 --- --- 5,139
& Chief Financial 1994 180,350 --- --- 44,970 5,370
Officer
Jon M. Nottingham/5/ 1992 --- --- --- --- ---
Former Senior Vice 1993 204,050 75,000 44,525 --- 7,195
President, Sales and 1994 215,383 --- --- 44,970 6,815
Customer Service,
Spectradyne, Inc.
</TABLE>
6
<PAGE>
________________________
/1/ In September 1994, Mr. Weik replaced Mr. Jerome as Chief Executive Officer
of the Company. Mr. Weik's 1994 Bonus was paid in consideration of his
forfeiture of monetary benefits from his previous employer. See "--
Description of Certain Agreements with Management--Gary Weik."
/2/ Perquisites for each individual named in the Summary Compensation Table for
1992, 1993 and 1994, except Mr. Jerome in 1992 and Mr. Nottingham in 1993,
are not reflected because the value aggregated less than the lower of 10%
of the total annual salary and bonus reported for such individual in the
Summary Compensation Table. Other annual compensation for Mr. Jerome in
1992 includes $45,019 for relocation expenses as provided in Mr. Jerome's
employment agreement. Other annual compensation for Mr. Nottingham in 1993
is for reimbursement of relocation expenses.
/3/ Includes the aggregate value of the Company's contribution under the
Savings for Retirement Plan and, for Ms. Dalicandro, under the
SpectraVision of Canada Pension Plan. All other compensation for Mr. Jerome
in 1992 also includes a payment of $39,780 to Mr. Jerome's former employer
for the equity in a life insurance policy and premiums totalling $40,235
for the two year period ending December 31, 1993.
/4/ Although Ms. Dalicandro's compensation was paid in Canadian Dollars, the
information reported above for Ms. Dalicandro has been converted to U.S.
Dollars based upon the average exchange rates for 1992, 1993 and 1994,
which were .8279, .7749 and .7317, respectively.
/5/ Mr. Hair and Mr. Nottingham resigned from the Company September 23, 1994
and November 4, 1994, respectively.
OPTION GRANTS IN LAST FISCAL YEAR
The following table provides information with respect to the executive
officers named in the Summary Compensation Table above who were granted stock
options during the last fiscal year.
<TABLE>
<CAPTION>
Potential Realizable Value at
Assumed Annual Rates of
Stock Price Appreciation for
Individual Grants Option Term
----------------------------------------------------------------------- -----------------------------------------
Number of Percent of Total
Securities Options Granted
Underlying to Employees Exercise Price Expiration
Options Granted in Fiscal Year Per Share Date 5% 10%
--------------- ----------------------- ---------------- -------------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Harry S. Budow 50,366 14.0% $ 7.875 2/2/04 $249,438 $632,129
Howard D. Gardner 17,988 5.0% $ 7.875 2/2/04 $ 89,086 $225,762
Janet L. Dalicandro 7,195 2.0% $ 7.875 2/2/04 $ 35,633 $ 90,302
Danny G. Hair 44,970 12.5% $ 7.875 2/2/04 $222,714 $564,405
Jon M. Nottingham 44,970 12.5% $ 7.875 2/2/04 $222,714 $564,405
</TABLE>
7
<PAGE>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END
OPTION VALUES
The following table provides information with respect to the executive
officers named in the Summary Compensation Table concerning unexercised options
held as of the end of the last fiscal year:
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED OPTIONS AT IN-THE-MONEY OPTIONS AT
FISCAL YEAR END DECEMBER 31, 1994
-------------------------- --------------------------------
SHARES
ACQUIRED VALUE
NAME ON EXERCISE REALIZED EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Harry S. Budow -- -- 12,592 37,774 -- --
Howard D. Gardner -- -- 4,497 13,491 -- --
Janet L. Dalicandro -- -- 1,799 5,396 -- --
Danny G. Hair -- -- 11,243 33,727 -- --
Jon M. Nottingham -- -- 11,243 33,727 -- --
</TABLE>
COMPENSATION OF DIRECTORS
During 1994 the Company paid all directors $25,000 annually, payable
quarterly. This compensation is paid regardless of the number of meetings held
and individual attendance thereat. Committee member directors receive $1,000
for each committee meeting that is held on a day when there is no Board meeting.
Additionally, directors' travel expenses to meetings are reimbursed by the
Company. The Company presently provides liability insurance for potential
losses incurred by its directors and officers as a result of actions taken by
them in their respective capacities on behalf of the Company.
DESCRIPTION OF CERTAIN AGREEMENTS WITH MANAGEMENT
Gary Weik. The Company entered into an employment agreement, effective as
---------
of August 31, 1994, with Gary Weik, which agreement was amended effective as of
January 1, 1995 (as amended, the "Weik Agreement"), pursuant to which Mr. Weik
serves as Chief Executive Officer of the Company. The Weik Agreement expires on
December 31, 1998, but contains an option exercisable before July 1, 1998 for
the Company to extend the term until December 31, 2000. Mr. Weik will receive a
base salary during 1995 of $564,970 per year, subject to a yearly increase based
upon the increase during the previous year in the National Consumer Price Index.
Mr. Weik is also eligible to receive an annual incentive payment pursuant to the
Company's 1994 Management Incentive Bonus Plan (the "Bonus Plan"). If the Bonus
Plan's targets are achieved, then Mr. Weik's bonus payment will be equal to 50%
of his base salary. Notwithstanding the Bonus Plan's targets, the Weik
Agreement provides that Mr. Weik shall receive a bonus for 1995 of no less than
25% of his base salary. Mr. Weik is entitled to an annual auto allowance of
$12,000, subject to a yearly increase on
8
<PAGE>
the same basis as increases in his base salary. Mr. Weik also is entitled to
participate in any employee benefit plans maintained by the Company. The Weik
Agreement provides for the grant to Mr. Weik of options to purchase an aggregate
of 600,000 shares of Common Stock.
In 1994, Mr. Weik received a one-time payment of $319,000, representing
monetary loss associated with leaving his prior employment, and reimbursement of
$3,477 in relocation expenses. Mr. Weik also is entitled to additional
reimbursements for relocation expenses that he incurs until August 31, 1997, not
to exceed an aggregate of $65,000. Pursuant to the Weik Agreement, the Company
will provide a life insurance policy for Mr. Weik with a face amount of not less
than $2,000,000 and a long-term disability insurance policy providing for
monthly payments of 60% of Mr. Weik's monthly base salary at the time of
disability if he is totally disabled. If Mr. Weik becomes totally and
permanently disabled, then he will continue for six months to receive the
compensation that he otherwise would have received under the Weik Agreement. In
the event of Mr. Weik's death, his estate will receive an amount equal to six
months of his annual base salary.
The Company has the right to terminate Mr. Weik's employment for cause.
Mr. Weik has the right to terminate the Weik Agreement upon a material breach of
the Weik Agreement by the Company. Upon such a termination for material breach,
Mr. Weik will be entitled to receive all sums due to him through the unexpired
term of the Weik Agreement, including his annual base salary and annual
incentive bonus amounts. Mr. Weik also has the right to terminate the Weik
Agreement under certain circumstances within two years after a change of
control. Upon such a termination, Mr. Weik generally would be entitled to
receive three times his "annualized includable compensation," which is the
maximum payment permitted by the Internal Revenue Code that does not constitute
an "excess parachute payment."
The Weik Agreement also includes non-competition and confidentiality
provisions.
Harry S. Budow. As of April 5, 1993, the Company's wholly owned subsidiary,
--------------
Spectradyne, entered into a personal services agreement with Harry S. Budow,
Senior Vice President of Marketing and Business Development, which provided for
an annual base salary of $150,000, an annual discretionary incentive bonus, and
participation in benefit plans maintained by the Company. The agreement was
amended as of March 14, 1994 (as amended, the "Budow Agreement") to extend its
initial term to December 31, 1996, to increase Mr. Budow's annual base salary to
$200,000, and to provide for automatic one-year renewals unless terminated by
notice given at least five months prior to the end of the current term. The
Budow Agreement includes a covenant not to compete during the term of the Budow
Agreement and in the event of termination of the Budow Agreement for so long as
Spectradyne, Inc. pays Mr. Budow in accordance with the terms of the Budow
Agreement, and also includes confidentiality provisions in effect during the
term of the Budow Agreement and for two years thereafter.
Howard D. Gardner. The Company entered into an employment agreement,
-----------------
effective as of January 1, 1995, with Howard D. Gardner (the "Gardner
Agreement"), pursuant to which Mr. Gardner serves as Senior Vice President of
Technology and Network Operations of the Company. The Gardner Agreement expires
on December 31, 1997. Mr. Gardner's base salary for 1995 is $152,400 and is
subject to a yearly increase based upon the increase during the previous year in
the Consumer Price Index for Urban Wage Earners in Dallas, Texas or any greater
amount approved by the Company's Board of Directors. Mr. Gardner is eligible to
receive an annual incentive payment pursuant to the
9
<PAGE>
Bonus Plan, which will be equal to 50% of his base salary if the Bonus Plan
targets are achieved. Mr. Gardner also is entitled to participate in any
employee benefit plans maintained by the Company.
The Company has the right to terminate Mr. Gardner's employment on thirty
days' notice upon a material breach of the Gardner Agreement by Mr. Gardner.
Upon termination by the Company, Mr. Gardner is entitled to thirty days' pay and
all accrued cash and non-cash compensation to the date of termination.
Mr. Gardner has the right to terminate the Gardner Agreement upon a
material breach of the Gardner Agreement by the Company. Upon such a
termination, Mr. Gardner will be entitled to receive all sums due to him through
the unexpired term of the Gardner Agreement, including his annual base salary
and annual incentive bonus amounts. Mr. Gardner also has the right to terminate
the Gardner Agreement under certain circumstances within two years after a
change of control. Upon such a termination, Mr. Gardner will be entitled to
receive the greater of (a) all sums due to him through the unexpired term of the
Gardner Agreement, including annual base salary and annual incentive bonus
amounts, or (b) two times the sum of Mr. Gardner's annual base salary, plus his
annual incentive bonus for the year in which his employment was terminated, or,
if his annual incentive bonus has not been determined, his annual incentive
bonus for the prior year.
The Gardner Agreement provides that all of Mr. Gardner's work product,
including inventions and original works of authorship, during his employment by
the Company shall belong to the Company. The Gardner Agreement includes non-
competition and confidentiality provisions.
Albert D. Jerome. In 1992, the Company entered into a five-year employment
----------------
agreement with Albert D. Jerome (the "Jerome Agreement"), its former President
and Chief Executive Officer, providing for an annual base salary of $600,000.
Under the Jerome Agreement, Mr. Jerome's base salary was adjusted annually to
reflect increases in the Consumer Price Index for all Urban Consumers. In
addition to an annual base salary, Mr. Jerome's compensation pursuant to the
Jerome Agreement included an annual incentive opportunity with payment based on
attainment by the Company of predetermined cash flow and other financial
criteria. The Jerome Agreement provided that Mr. Jerome's bonuses would not
exceed $350,000 per year. No bonuses were paid in 1994 for cash flow
achievement. Mr. Jerome's employment agreement also provides for a phantom
stock bonus where Mr. Jerome could earn a cash bonus. At December 31, 1994, the
Company had no liability under the phantom stock bonus plan.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- ------------------------------------------------------------------------
The table below sets forth certain information, to the Company's knowledge,
as of April 3, 1995, unless otherwise indicated, regarding the beneficial
ownership of the Company's Class A and Class B Common Stock, by (i) each person
known by the Company to own beneficially more than 5 percent of its outstanding
shares of Common Stock, (ii) each director of the Company, (iii) the executive
officers of the Company named in the Summary Compensation Table and (iv) all
executive officers and directors of the Company as a group:
10
<PAGE>
<TABLE>
<CAPTION>
CLASS A CLASS B
--------------------------------------- -------------------------------------------
Number of Number of
Shares Shares
Beneficially Percentage of Beneficially Percentage of
Beneficial Owner Owned Shares /1/ Owned Shares/1/
- -------------------------- ----------------- ---------------- ---------------- --------------------
<S> <C> <C> <C> <C>
Rainbow Company/2, 3/ 4,593,476 99.9% 4,674,986 19.5%
Gary G. Weik -- -- -- --
Harry S. Budow -- -- 25,183/4/ *
Howard D. Gardner -- -- 9,994/5/ *
Janet L. Dalicandro -- -- 3,598/6/ *
John F. Berardi -- -- -- --
Michael C. Colleran -- -- -- --
John Davis -- -- -- --
Marvin Davis/2, 3/ 4,593,476 99.9% 4,674,986 19.5%
Leonard Goldberg -- -- -- --
Gerald S. Gray -- -- -- --
Sidney Poitier -- -- -- --
Michael J. Seibert -- -- -- --
Stephen D. Silbert -- -- 1,000 *
Skip Victor -- -- 1,000 *
Kenneth Ziffren -- -- -- --
Albert D. Jerome -- -- -- --
Danny G. Hair -- -- 2,000 *
Jon M. Nottingham -- -- -- --
The Equitable Life
Assurance Society of
the United States and
Alliance Capital
Management L.P./7/ -- -- 1,047,934 5.4%
All executive officers and
directors as a group (16
persons)/8/ 4,593,476 99.9% 4,717,756 19.6%
</TABLE>
__________________
*Less than 1%.
/1/ Based upon 4,593,526 outstanding shares of Class A Common Stock and
19,390,379 outstanding shares of Class B Common Stock, which are treated
collectively for the purpose of calculating the percentage of shares of
Class B Common Stock held by Rainbow Company ("Rainbow"), Mr. Marvin Davis
and all executive officers and directors as a group.
/2/ Each share of Class A Common Stock is convertible at any time by the holder
thereof into one share of Class B Common Stock. The Class B Common Stock
information included above for Rainbow and Marvin Davis includes (i)
4,593,476 shares of Class B Common Stock issuable upon conversion of shares
of Class A Common Stock, (ii)
11
<PAGE>
78,500 shares of Class B Common Stock held by Davis Oil Company and (iii)
3,010 shares of Class B Common Stock issuable pursuant to presently
exercisable stock options held by Rainbow.
/3/ Rainbow Company is a general partnership controlled by Mr. Marvin Davis
through its general partners, Davis-Rainbow, Inc., and the Marvin Davis and
Barbara Davis Revocable Trust. Rainbow is the record owner of
substantially all of the shares of Class A Common Stock of the Company.
The mailing address of the principal executive office of Rainbow is Suite
2800, 2121 Avenue of the Stars, Los Angeles, California 90067-5000.
/4/ Includes 25,183 shares of Common Stock issuable upon exercise of vested
options.
/5/ Includes 8,994 shares of Common Stock issuable upon exercise of vested
options.
/6/ Includes 3,598 shares of Common Stock issuable upon exercise of vested
options.
/7/ In a joint filing of Schedule 13G dated February 10, 1995, AXA Assurances
I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, Alpha Assurances I.A.R.D.
Mutuelle, Alpha Assurances Vie Mutuelle, and Uni Europe Assurance Mutuelle,
as a group, and AXA and The Equitable Companies Incorporated and its
subsidiaries, reported beneficial ownership with respect to such shares of
the Company's Class B Common Stock. The Equitable Life Assurance Society
of the United States and Alliance Capital Management L.P., subsidiaries of
The Equitable Companies Incorporated, report ownership of 519,020 and
512,414 of such shares of Class B Common Stock, respectively, which were
acquired solely for investment purposes and solely for investment purposes
on behalf of client discretionary investment advisory accounts,
respectively. Additionally, Donaldson, Lufkin & Jenrette Securities
Corporation, a subsidiary of The Equitable Companies Incorporated, reported
shared dispositive power with respect to 16,500 shares held for investment
purposes. The mailing address of the principal business office of The
Equitable Companies Incorporated is 787 Seventh Avenue, New York, New York
10019.
/8/ Excludes Mr. Hair and Mr. Nottingham, who were named in the Summary
Compensation Table, but who resigned in 1994. Includes an aggregate of
40,780 shares of Common Stock issuable upon the exercise of vested options.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- --------------------------------------------------------
Pursuant to an employment agreement dated May 25, 1987, Mr. Howard T.
Buchanan, former Chairman of the Board and Chief Executive Officer of
Spectradyne, Inc. and a director of the Company until March 1995 receives
$12,500 per month and customary employee benefits not to exceed $30,000 in any
12-month period in satisfaction of a change-of-control clause, which was
triggered by the acquisition in 1986 of all of the outstanding stock of
Spectradyne, Inc. by the Company. This agreement expired in April 1995.
Payments under this agreement were $166,500 for the year ended December 31,
1994.
Mr. Buchanan also receives annual payments pursuant to the Company's
Executive Retirement Plan, which was adopted in 1985 and then terminated by the
Company in 1987 for new participants. Mr. Buchanan was the only director or
officer of the Company covered by the Executive Retirement Plan in 1994. The
plan provided that the Company would pay to each executive officer who retired
after becoming age 60, provided he had worked for the Company for at least 10
years, the lesser of (i) 60 percent of the highest base compensation (including
salary but not including any bonuses or contributions to other plans) of the
executive officer or (ii) $150,000 each year after retirement for 20 years. In
the event of the death of an executive officer, the Company will pay his
beneficiaries the remaining benefits. The benefits under the plan for executive
officers are unfunded. The Company, however, has purchased insurance to cover
its costs to pay the death benefits described above. The Company paid premiums
of $26,000 during 1994
12
<PAGE>
to insure the death benefit under the plan. Mr. Buchanan received $150,000
under this plan in 1994.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K
- ---------------------------------------------------------------------------
(A)(3)EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.0 Order dated October 29, 1992 confirming debtors'
plan of reorganization under Chapter 11 of the
bankruptcy code (Filed as Exhibit 2 to the
Company's Report on Form 10-Q for the period
ended September 30, 1992 (Commission File No. 1-
9724) and incorporated herein by reference)
3.1 Certificate of Incorporation of SPI Holding,
Inc. (Filed as Exhibit 3(a) to the Company's
Registration Statement on Form S-4 (Registration
No. 33-16859) and incorporated herein by
reference)
3.1.1 Certificate of Amendment of the Certificate of
Incorporation of SPI Holding, Inc. (Filed as
Exhibit 3(b) to the Company's 1988 Form 10-K
(Commission File No. 1-9724) and incorporated
herein by reference)
3.1.2 Certificate of Amendment of the Certificate of
Incorporation of SPI Holding, Inc. filed April
12, 1989 (Filed as Exhibit 3 to the Company's
Report on Form 8-K dated April 26, 1989
(Commission File No. 1-9724) and incorporated
herein by reference)
3.1.3 Certificate of Amendment of the Certificate of
Incorporation of SPI Holding, Inc. filed
September 13, 1991 (Filed as Exhibit 3.1.3 to
the Company's Registration Statement on Form S-4
(Registration No. 33-43199) and incorporated
herein by reference)
3.1.4 Certificate of Amendment of the Certificate of
Incorporation of SPI Holding, Inc. filed July 1,
1992 (Filed as Exhibit 3.1.4 to the Company's
Registration Statement on Form S-4 (Registration
No. 33-43199) and incorporated herein by
reference)
</TABLE>
13
<PAGE>
3.1.5 Certificate of Amendment of the Certificate of
Incorporation of SPI Holding, Inc. filed
November 23, 1992 (Filed as Exhibit 3.1.5 to the
Company's 1992 Form 10-K (Commission File No. 1-
9724) and incorporated herein by reference)
3.1.6 Certificate of Amendment of the Certificate of
Incorporation of SpectraVision, Inc. (Filed as
Exhibit 3.1.6 to the Company's Report of Form
10-Q for the period ended June 30, 1994
(Commission File No. 1-9724) and incorporated
herein by reference)
3.2 Amended and Restated Bylaws of SPI Holding, Inc.
(filed as Exhibit 3.2 to the Company's
Registration Statement on Form S-4 (Registration
No. 33-43199) and incorporated herein by
reference)
3.3 Certificate of Incorporation of Spectradyne,
Inc. (Filed as Exhibit 3.4 to the Company's
Registration Statement on Form S-1/S-3
(Registration No. 33-62502) and incorporated
herein by reference)
3.4 Amended and Restated Bylaws of Spectradyne, Inc.
(Filed as Exhibit 3.5 to the Company's
Registration Statement on Form S-2/S-3
(Registration No. 33-62502) and incorporated
herein by reference)
3.6 Certificate of Incorporation of SPI Newco, Inc.
(Filed as Exhibit 3.6 to the Company's
Registration Statement on Form S-1/S-3
(Registration No. 33-62502) and incorporated
herein by reference)
3.7 By-Laws of SPI Newco, Inc. (Filed as Exhibit 3.7
to the Company's Registration Statement on Form
S-1/S-3 (Registration No. 33-62502) and
incorporated herein by reference)
4.1 Indenture dated as of November 23, 1992 by and
among SPI Holding, Inc., Spectradyne, Inc., SPI
Newco, Inc., and U.S. Trust Company of Texas,
N.A., as Trustee, re: 11 1/2% Senior
Subordinated Reset Notes due 2002 (Filed as
Exhibit 4.2 to the Company's 1992 Form 10-K
(Commission File No. 1-9724) and incorporated
herein by reference)
14
<PAGE>
4.2 Form of Note (Filed as Exhibit 4.2 to the
Company's Registration Statement on Form S-1/S-2
(Registration No. 33-66762) and incorporated
herein by reference)
4.4 Contingent Value Rights Agreement dated as of
November 23, 1992 by and among SPI Holding,
Inc., Spectradyne, Inc., and U.S. Trust Company
of Texas, N.A., as Trustee, re: Contingent Value
Rights (Filed as Exhibit 4.3 to the Company's
1992 Form 10-K (Commission File No. 1-9724) and
incorporated herein by reference)
4.5 Form of Indenture dated as of October 1, 1993 by
and among SPI Holding, Inc., Spectradyne, Inc.,
SPI Newco, Inc., and First Trust National
Association, as Trustee, re: 11 1/2% Senior
Discount Notes due 2001 (Filed as Exhibit 4.5 to
the Company's Registration Statement on Form S-
1/S-3 (Registration No. 33-66762) and
incorporated herein by reference)
10.9 Agreement dated January 1, 1990 between
Spectradyne, Inc. and International Alliance
Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada, AFL-CIO (filed as Exhibit 10.1 to the
Company's Registration Statement on Form S-4
(Registration No. 33-43199) and incorporated
herein by reference)
10.12 Warrant Agreement dated as of October 8, 1987,
between SPI Holding, Inc. and the rights agent
thereunder (Filed as Exhibit 10(u) to the
Company's 1988 Form 10-K (Commission File No. 1-
9724) and incorporated herein by reference)
10.13 Terms and conditions of Credit Facilities dated
as of April 5, 1990 between The Royal Bank of
Canada and Spectravision of Canada, Inc. (filed
as Exhibit 10.10 to the Company's Registration
Statement on Form S-4 (Registration No. 33-
43199) and incorporated herein by reference)
15
<PAGE>
10.15 Employment Agreement dated as of January 28,
1992 between SPI Holding, Inc., Spectradyne,
Inc. and Albert D. Jerome (Filed as Exhibit
10.15 to the Company's Registration Statement on
Form S-4 (Registration No. 33-43199) and
incorporated herein by reference)
10.16* Employment Agreement dated August 31, 1994
between SpectraVision and Gary Weik
10.17* Amendment Number One dated January 1, 1995 to
Employment Agreement between SpectraVision and
Gary Weik
10.18* Restated Employment Agreement dated September
21, 1994 between SpectraVision, Inc. and Richard
M. Gozia
10.19 Personal Services Agreement dated April 5, 1994
between Spectradyne, Inc. and Harry S. Budow and
Amendment to the Personal Services Agreement
dated March 24, 1994 between Spectradyne, Inc.
and Harry S. Budow (Filed as Exhibits 10.14 and
10.15 to the Company's 1993 Form 10-K
(Commission File No. 1-9724) and incorporated
herein by reference).
10.20* Employment Agreement dated January 1, 1995
between SpectraVision, Inc. and Howard D.
Gardner.
10.21* Restated Employment Agreement dated December 5,
1994 between SpectraVision, Inc. and Elaine
Parrish
10.22 Executive Retirement Plan (Filed as Exhibit
10(g) to Spectradyne, Inc.'s 1986 Form 10-K
(Commission File No. 0-9312) and incorporated
herein by reference)
10.23 Management Incentive Bonus Plan of
SpectraVision, Inc. dated February 2, 1994
(Filed as Exhibit 10.17 to the Company's 1993
Form 10-K (Commission File No. 1-9724) and
incorporated herein by reference.)
10.24 Agreement for Phase 1 Information Technology
Services between Spectradyne, Inc. and
Electronic Data Systems Corporation dated as of
July 28, 1993.
10.25 Phase 2 Information Technology Product and
Service Agreement between Electronic Data
Systems
16
<PAGE>
Corporation and Spectradyne, Inc., dated as of
August 27, 1993.
10.26 Addendum No. 2 to Phase 2 Operating Lease,
between Spectradyne, Inc. and Electronic Data
Systems Corporation, dated as of August 27,
1993.
10.27 Addendum No. 4 to Phase 1 Operating Lease
between Spectradyne, Inc. and Electronic Data
Systems Corporation, dated as of July 28, 1993.
10.28 Special Provisions Agreement among Spectradyne,
Inc., SpectraVision, Inc., and Electronic Data
Systems Corporation, dated as of January 1,
1995.
10.29 Technology Services Agreement between
Spectradyne, Inc. and Certech Technology, Inc.,
dated as of December 17, 1993.
10.30 Personal Computer Functionality Management
Agreement between SPI Holding, Inc. and EDS
Technical Products Corporation, dated July 28,
1993.
22* Subsidiaries of SpectraVision, Inc.
27* Financial Data Schedule for the year ended
December 31, 1994.
__________________________
* Previously filed with the Form 10-K on April 6, 1995.
17
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF
RICHARDSON, STATE OF TEXAS ON APRIL 28, 1995.
SpectraVision, Inc.
By: /s/ Richard M. Gozia
------------------------------------------
Richard M. Gozia
Executive Vice President and
Chief Financial Officer
18
<PAGE>
EXHIBIT 10.24
AGREEMENT
FOR
PHASE 1 INFORMATION TECHNOLOGY SERVICES
BETWEEN
SPECTRADYNE, INC.
AND
ELECTRONIC DATA SYSTEMS CORPORATION
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS AGREEMENT WITH BRACKETS ([ ]).
<PAGE>
TABLE OF CONTENTS
ARTICLE I.
AGREEMENT, TERM AND DEFINITIONS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
1.1 Agreement.................................................... 1
1.2 Term......................................................... 1
1.3 Definitions.................................................. 3
1.4 Phase II Information Technology Services Agreement........... 11
</TABLE>
ARTICLE II.
EMPLOYEES OF SPECTRADYNE AND EDS
<TABLE>
<CAPTION>
<C> <S> <C>
2.1 Account Manager.............................................. 14
2.2 Designated Representative.................................... 14
2.3 Transition of Spectradyne Personnel.......................... 15
</TABLE>
ARTICLE III.
OBLIGATIONS RELATED TO CERTAIN
SOFTWARE AND LEASED HARDWARE
<TABLE>
<CAPTION>
<C> <S> <C>
3.1 Assumption of Leases......................................... 15
3.2 Inventory and Inspection..................................... 16
3.3 Obligations Related to Vendor Software....................... 16
3.4 Purchase of Vendor Hardware and Software from EDS............ 17
</TABLE>
ARTICLE IV.
FACILITIES MANAGEMENT SERVICES
<TABLE>
<CAPTION>
<C> <S> <C>
4.1 General...................................................... 17
4.2 Management of Spectradyne's Existing Operations.............. 18
4.3 Documentation................................................ 18
4.4 Training and Support......................................... 19
4.5 Hardware Maintenance......................................... 19
4.6 Software Maintenance......................................... 19
4.7 Local and Wide Area Network Administration and Availability.. 19
4.8 Safeguarding and Retention of Spectradyne Data............... 19
4.9 Development of Certain Software.............................. 19
4.10 Facilities Management Services Performance Criteria.......... 20
</TABLE>
i
<PAGE>
ARTICLE V.
NETWORK SERVICES
<TABLE>
<CAPTION>
<S> <C> <C>
5.1 General...................................................... 20
5.2 Uplink and Tape Playback Services............................ 21
5.3 Transponder Services......................................... 21
5.4 Transmission Monitoring Services............................. 22
5.5 Support Services............................................. 22
5.6 Changes to Network Services.................................. 22
5.7 Network Service Performance Criteria......................... 22
</TABLE>
ARTICLE VI.
FIELD SERVICES
<TABLE>
<CAPTION>
<C> <S> <C>
6.1 General...................................................... 22
6.2 Field Service Orders......................................... 23
6.3 Changes to and Cancellations of Field Service Orders......... 25
6.4 Provision of Certain Hardware and Software................... 25
6.5 Installation................................................. 26
6.6 Customer Assistance Center and Maintenance Services.......... 26
6.7 Geographic Area Covered by Field Services.................... 26
6.8 Field Service Performance Criteria........................... 27
6.9 Disaster Recovery............................................ 27
</TABLE>
ARTICLE VII.
ADDITIONAL SERVICES
<TABLE>
<CAPTION>
<C> <S> <C>
7.1 Additional Products and Services............................. 29
7.2 Right of First Refusal Regarding Additional Products and
Additional Services.......................................... 29
</TABLE>
ARTICLE VIII.
WARRANTIES, REMEDIES AND QUALITY REVIEW
<TABLE>
<CAPTION>
<C> <S> <C>
8.1 Warranties from Vendors...................................... 31
8.3 Remedies..................................................... 32
8.4 Quality Review............................................... 33
</TABLE>
ARTICLE IX.
PAYMENT
<TABLE>
<CAPTION>
<C> <S> <C>
9.1 Charges...................................................... 33
9.2 Terms of Payment............................................. 34
9.3 Bonus........................................................ 34
9.4 Taxes........................................................ 34
9.5 Distribution of Revenue Related to New Business.............. 35
</TABLE>
ii
<PAGE>
ARTICLE X.
SPECTRADYNE OBLIGATIONS
<TABLE>
<CAPTION>
<C> <S> <C>
10.1 Obligation to Purchase from EDS.............................. 35
10.2 Spectradyne's Performance Obligations........................ 35
</TABLE>
ARTICLE XI.
PROPRIETARY RIGHTS
<TABLE>
<CAPTION>
<C> <S> <C>
11.1 EDS Hardware................................................ 36
11.2 Vendor Software............................................. 37
11.3 Spectradyne Software........................................ 37
11.4 EDS Software................................................ 38
11.5 Software Development........................................ 39
11.6 EDS Development Tools....................................... 40
11.7 Software Modifications...................................... 40
11.8 Confidentiality............................................. 40
11.9 Exclusivity................................................. 42
</TABLE>
ARTICLE XII.
PERFORMANCE REVIEW AND DISPUTE RESOLUTION
<TABLE>
<CAPTION>
<C> <S> <C>
12.1 Performance Review........................................... 43
12.2 Dispute Resolution........................................... 44
</TABLE>
ARTICLE XIII.
TERMINATION
<TABLE>
<CAPTION>
<C> <S> <C>
13.1 Termination for Cause....................................... 45
13.2 Termination for Spectradyne's Convenience................... 46
13.3 Termination for Reaching Limitation of Liability............ 47
13.4 Termination for Nonpayment.................................. 47
13.5 Termination for Insolvency.................................. 47
13.6 Transition Upon Termination................................. 48
13.7 Rights Upon Termination..................................... 49
13.8 Termination Fee............................................. 49
</TABLE>
ARTICLE XIV.
INDEMNITIES AND LIABILITIES
<TABLE>
<CAPTION>
<C> <S> <C>
14.1 Indemnification............................................. 49
14.2 Indemnification Procedures.................................. 51
14.3 Risk of Loss................................................ 52
14.4 Liquidated Damages and Limitation of Liability.............. 52
14.5 Contractual Limitation on Actions........................... 56
</TABLE>
iii
<PAGE>
ARTICLE XV.
MISCELLANEOUS
<TABLE>
<CAPTION>
<C> <S> <C>
15.1 Relationship of the Parties................................. 56
15.2 Excusable Delays............................................ 57
15.3 No Third Party Beneficiary.................................. 57
15.4 Public Disclosures.......................................... 57
15.5 Notices..................................................... 58
15.6 Approvals and Similar Actions............................... 59
15.7 Subcontracting.............................................. 59
15.8 Binding Nature and Assignment............................... 60
15.9 Counterparts................................................ 61
15.10 Certain Construction Rules.................................. 61
15.11 Waiver...................................................... 61
15.12 Governing Law............................................... 61
15.13 Survival of Certain Provisions.............................. 61
15.14 Entire Agreement............................................ 61
</TABLE>
iv
<PAGE>
AGREEMENT
FOR
PHASE 1 INFORMATION TECHNOLOGY SERVICES
This Phase 1 Information Technology Services Agreement (the "Agreement"),
dated as of July 28, 1993 (the "Execution Date"), is between Spectradyne, Inc.,
a Texas corporation ("Spectradyne"), and Electronic Data Systems Corporation, a
Texas corporation ("EDS").
RECITALS:
This Agreement, when taken together with the Phase II Information Services
Agreement, the Financial Agreement and the PCFM, forms the basis of a strategic
alliance between Spectradyne and EDS. Each of these agreements creates
distinct, unique rights and obligations in the parties to the agreements, except
to the extent that individual obligations under one agreement are specifically
tied to individual obligations in another agreement as expressly set forth in
the agreements. The agreements do not form one agreement, but rather several
pieces to the strategic alliance.
This Agreement sets forth the terms and conditions under which EDS will (a)
install, operate and manage a compressed digital video network in North America
for the purpose of distributing in-room video entertainment programming and
Spectradyne-developed interactive services, (b) provide Facilities Management
Services, Network Services and Field Services and (c) if requested by
Spectradyne, provide Additional Services, all of which are described below.
In consideration of these premises and the mutual covenants set forth in
this Agreement, and for other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, Spectradyne and EDS hereby agree to
undertake all rights and obligations under the terms and conditions of this
Agreement.
ARTICLE I.
AGREEMENT, TERM AND DEFINITIONS
1.1 Agreement. Subject to and under the terms and conditions of this
Agreement, EDS will provide to Spectradyne, and Spectradyne will purchase
from EDS, the information technology products and Information Technology
Services described in this agreement under the terms and conditions of this
Agreement.
1.2 Term. This Agreement will be executed by Spectradyne and EDS on the
Execution Date, but, with the exception of Spectradyne's obligations under
this Section 1.2, will not become effective until such time as it is
unconditionally approved by the board of directors of Spectradyne and those
banks, lending institutions or other lenders which are parties to the Loan
Documents described in Section 1. 3 (bn) , or in the case of such banks,
lending
<PAGE>
institutions or other lenders unconditional waivers of any required
approval, which approvals (except that the board of directors referred to
above in this case is the board of directors of SPI) are also required for
the PCFM and the Financial Agreement. Spectradyne represents that
Spectradyne and SPI both began such approval process prior to the Execution
Date, and that it will use all commercially reasonable efforts to obtain
such approvals or waivers, as the case may be, on or before October 1,
1993. EDS will have no obligation, solely by virtue of this Agreement, to
perform any service, provide any product or to undertake any obligation
under this Agreement or the Financial Agreement until such time as
Spectradyne obtains all such unconditional approvals or waivers, as the
case may be. Further, EDS will have no obligation to accept any condition
or enter into any negotiations with Spectradyne, the board of directors of
Spectradyne (or any individual director of Spectradyne) or any bank,
lending institution or other lender described above of or related to this
Agreement, the Financial Agreement (including for the purposes of this
Section 1.2 all documents ancillary to the Financial Agreement, including
without limitation the warrant agreement, the registration agreement, the
series 1 promissory notes, the series 2 promissory notes, the guaranty
agreement, the security agreement and any other such ancillary agreement)
or the PCFM in an effort to obtain any unconditional approval or waiver, as
the case may be, and EDS will have no obligation, solely by virtue of this
Agreement, to perform any service, provide any product or to undertake any
obligation under this Agreement before, on or after October 1, 1993 if
Spectradyne fails to obtain such unconditional approvals on or before
October 1, 1993.
Spectradyne will notify EDS in writing within one Business Day after
receiving notice from the board of directors of Spectradyne and SPI and
from each such bank, lending institution or other lender of any
unconditional approval or disapproval of this Agreement, and upon receiving
the last unconditional approval or waiver, as the case may be, if such
unconditional approval or waiver is obtained, an officer of Spectradyne
will deliver to EDS copies of all such unconditional approvals or waivers,
as the case may be, and a certificate executed by an officer of Spectradyne
in a form substantially as set forth in Schedule 1.2 and without material
change, exception or qualification, which certificate will include without
limitation a representation that all unconditional approvals or waivers, as
the case may be, have been obtained and are in full force and effect, have
not been amended or rescinded and that the execution, delivery,
consummation and performance of this Agreement by Spectradyne (and of SPI,
in the case of the PCFM and Financial Agreement) does not and will not
conflict with, constitute a breach of or default under or give rise to any
right of termination or acceleration under any material agreement between
Spectradyne, or SPI, as the case may be, and any third party, including
without limitation those banks, lending institutions and other lenders
described above the breach of or default under such material agreement
would cause a material adverse effect on the business or affairs of
Spectradyne or SPI, as the case may be, with regard to each of Spectradyne
2
<PAGE>
and SPI, taken as a whole. In the alternative, if the agreements between
the banks, lending institutions or other lenders described above and
Spectradyne or SPI, as the case may be, do not require such approval or
waiver, Spectradyne or SPI, as the case may be, will provide to EDS
documentation that establishes to EDS' reasonable satisfaction that no such
approvals or waivers are required.
The date on which such officer's certificate and such copies of all
unconditional approvals, or such alternative documentation described above,
are received by EDS will be the effective date of this Agreement and the
Financial Agreement, and with the exception of Spectradyne's obligations
under this Section 1.2, the date on which all obligations under this
Agreement will commence (the "Effective Date").
The term of this Agreement will begin on the Effective Date and will
continue for a period of 10 years unless earlier terminated in accordance
with the provisions of Article XIII. On or about the ninth anniversary of
the Effective Date, Spectradyne and EDS will meet and discuss whether or
not to extend the term of this Agreement. If either Spectradyne or EDS
desires or intends not to extend this Agreement beyond the tenth
anniversary of the Effective Date, such party will notify the other within
60 days after such meeting, and Spectradyne and EDS will develop a schedule
for the Termination Transition described in Section 13.6, which schedule
will call for the completion of the Termination Transition no later than
the tenth anniversary of the Effective Date. If Spectradyne and EDS both
desire to extend the term of this Agreement, then Spectradyne and EDS will
negotiate in good faith to reach and enter into a new agreement under which
EDS will provide Information Technology Services in accordance with
Spectradyne Is needs at that time. (The effective date of any expiration or
termination of this Agreement is referred to as the "End Date.")
1.3 Definitions. As used in this Agreement, the following terms will have the
respective meaning set forth below:
(a) "Access" has the meaning set forth in Section 3.3(a)(i).
(b) "Accessed Software" has the meaning set forth in Section 3.3 (a) (i).
(c) "Account Manager" has the meaning set forth in Section 2.1.
(d) "Additional Products' has the meaning set forth in Section 7.1.
(e) "Additional Services" has the meaning set forth in Section 7.1.
(f) "Affiliate" means a corporation related to either Spectradyne or EDS
because it is directly or indirectly controlling or controlled by or
under direct or indirect common control with either Spectradyne or
EDS. For
3
<PAGE>
the purposes of this definition, "control," when used with respect to
any such corporation, means the power to direct the management and
policies of such corporation, directly or indirectly, through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
(g) "Agreement" has the meaning set forth in the Preamble.
(h) "All North American Sites" has the meaning set forth in Section 6.7.
(i) "Annual Plan" has the meaning set forth in Schedule 4.9.
(j) "Authorized Field Service Order" has the meaning set forth in Section
6.2.
(k) "Base Service Charge" has the meaning set forth in Schedule 9.1.
(l) "Business Day" means a day other than (i) Saturday, Sunday and (ii)
any day on which the principal commercial banks located in Texas are
authorized or obligated to close under the laws of Texas.
(m) "CCRM" has the meaning set forth in Schedule 6.5.
(n) "CDVRO System" means a compressed digital video receive only earth
system which receives KU-band satellite signals using CLI
SpectrumSaver(TM) technology, as more specifically described in
Schedule 1.3(n).
(o) "CIG" has the meaning set forth in Section 11.9.
(p) "Confidential Information" has the meaning set forth in Section
11.8(a).
(q) "CRM" has the meaning set forth in Schedule 9.1.
(r) "Customer Assistance Center has the meaning set forth in Schedule 6.6.
(s) "Data General Hardware," has the meaning set forth in Section 14.4
(a).
(t) "Debt" has the meaning set forth in Section 1.3(bn).
(u) "Delivery Date" has the meaning set forth in Section 1.4(b).
(v) "Designated Representative" has the meaning set forth in Section 2.2.
(w) "Developed Software" has the meaning set forth in Section 4.9.
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(x) "Digitally Based Video On Demand System" means a system of Hardware
and Software to be developed by EDS under the definitive agreement for
Phase II information technology services described in Section 1.4 that
(i) will store [ ] full length video programs, [ ] data sets, [ ] data
sets and [ ] data sets, (ii) will provide simultaneous viewing for [ ]
viewers while sustaining a data transmission rate of [ ] kilobytes per
second or greater and (iii) will contain such other functionality as
Spectradyne and EDS may mutually agree.
(y) "EDS" has the meaning set forth in the Preamble.
(z) "EDS Hardware" means any Hardware provided by EDS under this Agreement
where title to such Hardware remains in EDS or a third party.
(aa) "EDS Software" means Developed Software and any Software which is
owned by EDS and provided to Spectradyne under this Agreement.
(ab) "EDS Support Services" has the meaning set forth in the Schedule 6.6.
(ac) "Effective Date" has the meaning set forth in Section 1.2.
(ad) "End Date" has the meaning set forth in Section 1.2.
(ae) "Execution Date" has the meaning set forth in the Preamble.
(af) "Existing Functionality" has the meaning set forth in Section 4.2.
(ag) "Existing Software" means that Software which is set forth in Schedule
1.3 (acr), which Schedule 1.3 (ag) will be developed in accordance
with Section 3.2 which was used by or on behalf of Spectradyne
immediately prior to the Effective Date.
(ah) "Facilities Management Services" has the meaning set forth in Section
4.1.
(ai) "Field Services", has the meaning set forth in Section 6.1.
(ai) "Field Service Charges" has the meaning set forth in Schedule 9.1.
(ak) "Field Service Order" has the meaning set forth in Section 6.2.
(al) "Financial Agreement" means that certain Agreement to Make Secured
Loans by and between SPI Holding, Inc. and EDS dated July 28, 1993
setting forth the terms and conditions under which, among other
things, (i) EDS will loan SPI Holding, Inc. money, from time to time,
to be
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reloaned by SPI Holding, Inc. to Spectradyne, from time to time, for
the purchase of IRDs and CDVRO Systems and (ii) as partial
consideration for such loans, SPI Holding, Inc. will repay such loans
and grant to EDS certain warrants under which EDS will have the right
to purchase shares of Class B Common Stock in SPI Holding, Inc.
(am) "Hardware" means transmitting, receiving and decoding equipment;
computers and related equipment (but not including any satellite or
transponder), including but not limited to, central processing units
and other processors; peripheral devices such as storage devices,
printers, terminals and other input and output devices; IRDS; CDVRO
Systems and mounts; and/or other tangible mechanical and electronic
equipment, such as controllers, modems, communications and
telecommunications equipment (voice, data and video) and networks
intended for the input, storage, manipulation, communication,
transmission and retrieval of information and data.
(an) "Headend Hardware" means that Hardware which resides at the
Spectradyne customer site and which is necessary to distribute and
receive audio and video signals via MATV system at such customer site.
(ao) "Information Technology Services" means the Facilities Management
Services, Network Services, Field Services and Additional Services
provided by EDS to Spectradyne as set forth in this Agreement.
(ap) "Installation Date" has the meaning set forth in Schedule 6.5.
(aq) "Installation Services" means the specifications set forth in Schedule
8.2.
(ar) "IRD" means a compressed digital video integrated receiver decoder.
(as) "IRD System" means the Hardware described in Schedule 1.3 (as), as
amended from time to time upon mutual agreement of Spectradyne and
EDS.
(at) "Leases" has the meaning set forth in Section 3.1.
(au) "Maintained Hardware" has the meaning set forth in Section 4.5.
(av) "Maintained Software" has the meaning set forth in Section 4.6.
(aw) "Network Services" has the meaning set forth in Section 5.1.
(ax) "New Base Sites" means all sites set forth in Schedule 1.3 (ax), as
amended from time to time by Spectradyne upon written notice from
Spectradyne to EDS.
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(ay) "New Non-Satellite Base Sites" means those sites set forth in Section
B of Schedule 1. 3 (ax), as amended from time to time by Spectradyne
upon written notice from Spectradyne to EDS.
(az) "New Satellite Base Sites" means those sites set forth in Section A of
Schedule 1.3 (ax), as amended from time to time by Spectradyne upon
written notice from Spectradyne to EDS.
(ba) "Non-Standard Products" has the meaning set forth in Section
6.2(c)(i).
(bb) "Old Base Sites" means all sites set forth in Schedule 1.3 (bb).
(bc) "Old Non-Satellite Base Sites" means those sites set forth in Section
B of Schedule 1.3 (bb).
(bd) "Old Satellite Base Sites" means those sites set forth in Section A of
Schedule 1.3 (bb).
(be) "On-Site System" means the EDS Hardware, EDS Software, Spectradyne
Hardware, Spectradyne Software and Vendor Software located at a
Spectradyne customer site and utilized by EDS to perform the Network
Services.
(bf) "PCFM" means that certain agreement dated on or about July 28,1993 by
and between SPI Holding, Inc. and EDS Technical Products Corporation
under which EDS Technical Products Corporation will provide personal
computer functionality and certain integration, installation, on-site
warranty, on-site maintenance and other services to SPI Holding, Inc.
(bg) "Personal Computer" has the meaning set forth in Section 6.4.
(bh) "Personal Computer Functionality" has the meaning set forth in Section
6.4.
(bi) "Phase II Default" has the meaning set forth in Section 13.1 (b).
(bj) "Project Plan" has the meaning set forth in Schedule 4.9.
(bk) "Purchase Order" has the meaning set forth in Schedule 3.4.
(bl) "Reset Note indenture" has the meaning set forth in Section 1.3(bn).
(bm) "Review Period" has the meaning set forth in Schedule 4.9.
(bn) "Senior Debt" means all principal, interest, penalties, fees and other
liabilities (current or future), including without limitation
attorneys'
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fees, costs and expenses and obligations with respect to (i) letters
of credit, (ii) foreign exchange contracts, currency swap agreements
or other similar agreements or arrangements designed to protect
against fluctuations in currency values and (iii) obligations with
regard to any interest rate swaps, caps, collars and similar
agreements and arrangements providing protection against fluctuations
in interest rates, in each case arising under or in respect of (x) the
Third Amended and Restated Loan Agreement dated as of November 23,
1992, among SPI Holding, Inc. and Wells Fargo Bank, N.A. ("Wells
Fargo"), as a lender and as agent for other lenders, and the other
financial institutions signatory thereto, together with all related
Loan Documents (as defined therein), (y) the Amended and Restated Loan
Agreement dated as of November 23, 1992, between SPI Holding, Inc. and
Wells Fargo, together with all related Loan Documents (as defined
therein), as (x) and (y) above or either of them may be restated,
amended, supplemented, refinanced or otherwise modified from time to
time, and (z) all other indebtedness, contingent or otherwise, present
or future, in respect of borrowed money or representing the balance
deferred and unpaid of the purchase price of any property (excluding
any trade payables or accrued liabilities arising in the ordinary
course of business and not overdue more than 120 days or being
contested in good faith), if and to the extent that such indebtedness
would appear as a liability upon a balance sheet of the debtor in
accordance with generally accepted accounting principles ("Debt"),
created, assumed, incurred or guaranteed by SPI Holding, Inc. (and all
renewals, extensions o:t refundings thereof), unless the instrument
under which such Debt is created, incurred, assumed or guaranteed
expressly provides that such Debt is not senior or superior in right
of payment to the securities issued pursuant to that certain Indenture
dated as of November 23, 1992, by and among SPI Holding, Inc.,
Spectradyne, SPI Newco, Inc. and U.S. Trust Company of Texas, N.A. as
Trustee, (the Reset Note Indenture"), provided, however, that in no
event may the Senior Debt of SPI Holding, Inc., together with all
other Debt of SPI Holding, Inc. and its subsidiaries, exceed the
amounts set forth in Section 4.07 of the Reset Note Indenture as in
effect on the Effective Date.
(bo) "Site Survey Report" means a report substantially in the form set
forth in Schedule 1.3(bo).
(bp) "Software" means computer programs in object code (except when source
code is expressly called for as set forth herein, in which case the
term "Software" includes source code and object code) together with
input and output formats, program listings, narrative descriptions,
operating instructions and supporting documentation and will include
the tangible media upon which such programs and documentation are
recorded. The term "software,, does not include Spectradyne
Programming.
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(bq) "Software Enhancement" means:
(i) any changes or modifications to a function or functions of the
Software that, with respect to Existing Software, existed as of
the Effective Date or that, with respect to Vendor Software,
existed as of the date the Vendor Software was implemented and
(ii) all of those tasks performed throughout the development cycle
starting with the analysis and requirements definition and
continuing until acceptance by Spectradyne, including without
limitation analysis, design, programming and testing, which are
associated with the development of new Software, new Software
modules or new functions for the Software (which new Software,
Software modules and functions did not exist as of the Effective
Date with respect to Existing Software or did not exist as of the
date implemented with respect to Vendor Software).
(br) "Software Maintenance" means:
(i) with respect to Software which is proprietary to either
Spectradyne or EDS, with the exception of Software developed by
EDS under this Agreement, changes or corrections to the Software
required to keep the Software operational in the same manner as
it operated as of the Effective Date;
(ii) with respect To new Software which is developed by EDS under this
Agreement, changes or corrections to such developed Software
required to keep the Software operational in the same manner as
it operated on the date it was implemented;
(iii) with respect to Vendor Software for which the Vendor provides
maintenance, (a) any tasks required to apply maintenance supplied
by a Vendor, (b) reporting to and assisting Vendors in resolving
Vendor Software errors or deficiencies and (c) determining
whether and in what time frame new releases from the Vendor will
be installed and with respect to Vendor Software for which the
Vendor no longer provides maintenance or for which the Vendor has
provided EDS all source code and documentation sufficient for a
reasonably skilled programmer to customize, maintain and enhance
the Software, changes or corrections to the Software required to
keep the Software operational in the same manner as it operated
as of the Effective Date with respect to Existing Software.
(bs) "Spares" has the meaning set forth in Schedule 6.6.
(bt) "Special Effort" has the meaning set forth in Schedule 6.5.
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(bu) "Special Effort Quote" has the meaning set forth in Schedule 6.5.
(bv) "Spectradyne" has the meaning set forth in the Preamble.
(bw) "Spectradyne Facility" has the meaning set forth in Section 4.1.
(bx) "Spectradyne Hardware" means Headend Hardware, IRDs and any other
Hardware, to which title or all other rights necessary to use are
vested in Spectradyne or any Spectradyne Affiliate.
(by) "Spectradyne Installation Site" means each location designated in an
Authorized Field Service Order where a CDVRO System, IRD Systems and
other Hardware described in such Authorized Field Service Order will
be installed.
(bz) "Spectradyne Installation Site Questionnaire" has the meaning set
forth in Section 6.2.
(ca) "Spectradyne Programming", means the video entertainment and
interactive services offered to hotels and other facilities by
Spectradyne.
(cb) "Spectradyne Software", means the Software owned by Spectradyne
identified in Schedule 1.3 (ag) , as amended from time to time by
Spectradyne with EDS' consent, which consent will not be unreasonably
withheld, delayed or conditioned.
(cc) "Termination Fee" has the meaning set forth in Section 13.8 (b).
(cd) "Termination Transition" has the meaning set forth in Section 13.6.
(ce) "Transfer" has the meaning set forth in Section 3.3(a)(ii)
(cf) "Transferred Software" has the meaning set forth in Section
3.3(a)(ii).
(cg) "Transition Period" has the meaning set forth in Section 3(a) of
Schedule 9.1.
(ch) "Transition Plan" has the meaning set forth in Section 6.1.
(ci) "Transitioned Employees" has the meaning set forth in Section 2.3.
(ci) "Uplink Facility" has the meaning set forth in Schedule 5.2.
(ck) "Vendor" means (i) any person or entity that manufactures, publishes,
distributes or licenses, ac the case may be, Hardware or Software and
(ii) 'any person or entity (other than EDS) that provides services to
Spectradyne and any person or entity that provides services to EDS.
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(cl) "Vendor Hardware" means any Hardware provided to EDS or Spectradyne by
a Vendor.
(cm) "Vendor Software" means that Software the rights to which are licensed
or owned by a Vendor.
(cn) "Wells Fargo 11 has the meaning set forth in Section 1.3(bn).
1.4 Phase II Information Technology Services Agreement. Spectradyne and EDS
have entered into good faith negotiations intending to (i) enter into a
definitive written agreement setting forth each party's specific
obligations related to Phase II information technology services and (ii)
include in such definitive agreement terms and conditions under which
Spectradyne would have the right, which right will be subject to such terms
and conditions mutually agreeable to Spectradyne and EDS, to (x) enforce,
in those markets described in Section 11.9, EDS' intellectual property
rights arising out of intellectual property developed by EDS under such
definitive agreement against third party infringers of such rights in the
event that EDS elects not to so enforce its rights and (y) commercially
exploit EDS' intellectual property rights arising out of intellectual
property developed under such definitive agreement, which negotiations will
continue for a reasonable period after the Effective Date. Notwithstanding
the foregoing, except with regard to EDS' obligation set forth in this
Section 1.4 to include in the definitive agreement for Phase II information
technology services the specifications, delivery schedule and price (which
delivery schedule and price are based upon EDS' assumptions set forth
below) described in this Section 1.4 and in Schedule 1.4, EDS will have no
obligation to perform any services described in this Section 1.4 until such
time as such definitive written agreement is executed by both parties.
Phase II information technology services will include the integration of
Hardware and the development of Software interfaces to SPICE (a Spectradyne
Software product)necessary to support Spectradyne's functional requirements
and SPICE interface specifications, which functional requirements are set
forth in Section 1.4(a) below and which SPICE interface specifications are
set forth in Schedule 1.4, for Digitally Based Video On Demand System
accessible by a number of simultaneous users. Any adjustment to the price
for the Hardware for any such Digitally Based Video On Demand System and
the related EDS support services, as currently set forth in Section 1.4(c),
will be provided to Spectradyne by EDS after Spectradyne's approval of a
prototype Digitally Based Video On Demand System. Each Digitally Based
Video On Demand System will have and be subject to the following:
(a) Digitally Based Video On Demand System Functionality. The Digitally
Based Video On Demand System will store [ ] full length video
programs, [ ] data sets, [ ] data sets and [ ] data sets. The
Digitally Based Video On Demand System will
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provide simultaneous viewing for [ ] viewers while sustaining a data
transmission rate of [ ] kilobytes per second or greater.
If Spectradyne requests that EDS change the functionality requirements
for the Digitally Based Video On Demand System, EDS will report to
Spectradyne within 10 days after such request EDS' good faith estimate
of (i) the impact on the development schedule described in Section
1.4(b) and (ii) the impact on maximum prices described in Section
1.4(c). if Spectradyne requests that EDS make such changes, EDS will
do so in accordance with such modified schedule and subject to such
modified price.
(b) Digitally Based Video On Demand System Development Schedule. EDS will
provide a Digitally Based Video On Demand System for beta testing
(meaning limited use and testing in one hotel) within eight months
after the date on which Spectradyne and EDS mutually approve all
functional requirements, system requirements, system specifications,
Hardware specifications, Software specifications and user interface
specifications applicable to such systems. EDS will approve or
disapprove such specifications within 20 Business Days after EDS
receives such specifications from Spectradyne.
EDS will provide a Digitally Based Video On Demand System, which
Digitally Based Video On Demand System will pass an acceptance test
mutually agreed to by Spectradyne and EDS and be available for wide-
scale use within four months after the commencement of the beta test
(the "Delivery Date").
(c) Price. Except as changed as a result of (i) a change by Spectradyne
of the functionality requirements or (ii) a change by virtue of
Spectradyne's failure to purchase [ ] Digitally Based Video On
Demand Systems within [ ] months after the Delivery Date (as discussed
below in this Section 1.4(c)), the prices set forth in this Section
1.4(c) are maximum prices.
The price for the Hardware (including the operating system Software
for such Hardware) for the Digitally Based Video On Demand System will
not exceed [ ] (excluding any and all taxes for which Spectradyne
is liable under Section 9.4) and the price for the maintenance of such
Hardware (including the maintenance of the operating system Software
for such Hardware) for a period of [ ] years (subject to Spectradyne
and EDS mutually agreeing on response times and repair times for the
maintenance services notwithstanding the first sentence of this
Section 1.4(c)) will not exceed [ ].
In addition to the prices set forth above in this Section 1.4(c), the
price for the Software will not exceed [ ] per year for each
Digitally Based
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Video On Demand System and such price will include Software
Maintenance. If Spectradyne or EDS desires to obtain Hardware for the
Digitally Based Video On Demand System from a third party, Spectradyne
and EDS will mutually agree on each party's respective rights and
obligations related to such Hardware prior to Spectradyne obtaining
such Hardware from such third party and the effects of such
acquisition on each party's respective rights and obligations with
respect to each Digitally Based Video On Demand System so affected.
EDS' delivery schedule (as described above in Section 1.4(b)) and
price (as described above in this Section 1.4(c)) are based on the
assumption that Spectradyne will be obligated in the definitive Phase
II information technology services agreement to purchase from EDS all
Hardware and Software for [ ] Digitally Based Video On Demand
Systems and execute Field Service Orders for the installation of all
1,000 Digitally Based Video On Demand Systems within [ ] months after
the Delivery Date. If Spectradyne does not so obligate itself in such
definitive agreement, EDS may revise any of the prices set forth in
this Section 1.4(c).
EDS will use commercially reasonable efforts to identify cost-
effective, reliable products from reliable Vendors and to provide each
Digitally Based Video On Demand System at or below the price set forth
above in this Section 1.4(c).
From and after the date that Digitally Based Video On Demand Systems
are available for wide-scale use, EDS will review its costs and prices
for supplying and maintaining the Digitally Based Video On Demand
System twice a year. If EDS receives cost reductions from Vendors (on
Vendor Hardware, Vendor Software, or services) and if EDS determines
that, after subtracting such savings from the then current price of a
Digitally Based Video On Demand System, the cumulative effect of such
reductions will result in a price reduction equal to or greater than
[ ] of the then current price for a Digitally Based Video On
Demand System, then EDS will reduce its price for each Digitally Based
Video On Demand System to Spectradyne from and after the date on which
EDS makes such determination by an amount equal to [ ] of such
savings. (For example, suppose that EDS determines as a result of its
review that the cost of a widget required in the Digitally Based Video
On Demand System is reduced from [ ] to [ ] and all other costs
remain the same. EDS will then subtract [ ] from the price of the
Digitally Based Video On Demand System. If the result is equal to or
greater than [ ], less than the then current price for a Digitally
Based Video On Demand System, then EDS will reduce the then current
price for the Digitally Based Video On Demand System to an amount
equal to [ ] (an amount equal to [ ] of the savings].)
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ARTICLE II.
EMPLOYEES OF SPECTRADYNE AND EDS
2.1 Account Manager. EDS will provide an account manager (the "Account
Manager") who will have overall responsibility for the management and
coordination of the delivery by EDS of all Information Technology Services
and will coordinate with and consult with the Designated Representative to
assist Spectradyne in its establishment of appropriate Spectradyne
information technology priorities and its effective use of the Information
Technology Services. The Account Manager will coordinate with the
Designated Representative in establishing priorities for providing
Information Technology Services and conducting performance reviews set
forth in Section 12.1. As reasonably requested by Spectradyne, the Account
Manager will, with regard to EDS' performance of Information Technology
Services under this Agreement, make management decisions, personnel,
information, approvals and acceptances available to Spectradyne in order
that the Information Technology Services may be accomplished in a timely
manner. EDS may replace the Account Manager by providing written notice to
Spectradyne. In addition, the Account Manager may identify in a writing
provided to Spectradyne a substitute account manager who, in the event of
sickness or absence of the Account Manager, will have all rights and
obligations of the Account Manager under this Section 2.1 during such
sickness or absence. If the Account Manager and the substitute account
manager are both sick, absent or otherwise unavailable, the President of
the Visual Services Division of EDS will serve as the account manager
during such sickness, absence or unavailability.
2.2 Designated Representative. Spectradyne will maintain a designated
representative (the "Designated Representative") for the term of this
Agreement who is (i) a senior officer of Spectradyne, (ii) authorized to
act as the primary point of contact for EDS in dealing with Spectradyne
with respect to the Information Technology Services and (iii) authorized to
make management decisions and, within the reasonable limits, if any, set
forth in writing and delivered by Spectradyne to EDS from time to time, to
financially obligate Spectradyne with regard to the Information Technology
Services. The Designated Representative will interface with the Account
Manager on all matters related to the performance of the Information
Technology Services. As reasonably requested by EDS, the Designated
Representative will make management decisions, personnel, information,
approvals and acceptances available to EDS in order that the Information
Technology, Services may be accomplished in a timely manner. Spectradyne
may replace the Designated Representative by providing written notice to
EDS. In addition, the Designated Representative may identify in a writing
provided to EDS a substitute designated representative who, in the event of
sickness or absence of the Designated Representative or with regard to
specific duties (in which case such writing will specify such duties), will
have all rights and obligations of the Designated Representative under this
Section 2.2 during such sickness
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or absence or with regard to such duties. If such designee with
responsibility for specific duties is sick absent or otherwise unavailable,
the Designated Representative will have all rights and obligations of the
designee. If the Designated Representative and the substitute designated
representative are sick, absent or otherwise unavailable, or in the case of
the designee (with regard to specific duties), the Designated
Representative, the substitute designated representative and the designee
are all sick, absent or otherwise unavailable, the President of the
Spectradyne will serve as the designated representative during such
sickness, absence or unavailability.
2.3 Transition of Spectradyne Personnel. Commencing on the Effective Date, EDS
will offer employment to those employees of Spectradyne identified on
Schedule 2.3 (the "Transitioned Employees") in accordance with EDS' normal
employment policies, including an extension of an offer to accept EDS'
standard employment agreement in effect as of the Effective Date. To the
extent that a Transitioned Employee accepts such offer, such employment
will commence as of the Effective Date. A copy of the form of such
employment agreement is set forth in Schedule 2.3.
Spectradyne will cooperate with EDS in EDS' performance of its obligations
under this Section 2.3. Should EDS request that Spectradyne continue to
make payments and/or provide benefits to the Transitioned Employees after
they are hired by EDS until the Transitioned Employees can be integrated
into the EDS payroll system, Spectradyne will do so as an administrative
convenience until the Transitioned Employees can be integrated into the EDS
payroll system but in no event for more than 45 days after the effective
date of each such employee's employment by EDS. In such event, (a) such
employee will be an EDS employee for the purposes of Section 14. 1 (b)
(ii), (b) Spectradyne will be acting solely as an accommodation to EDS and
(c) EDS will reimburse Spectradyne for all wages, benefits and reasonable,
documented (in accordance with Spectradyne's then existing practices),
reimbursable employee expenses paid by Spectradyne in connection therewith.
EDS will use commercially reasonable efforts to assign to the Oracle
implementation, and keep assigned to the Oracle implementation until such
implementation is complete, those Transitioned Employees that were,
immediately prior to the Effective Date, working on the Oracle
implementation.
ARTICLE III.
OBLIGATIONS RELATED TO CERTAIN
SOFTWARE AND LEASED HARDWARE
3.1 Assumption of Leases. Commencing as of the Effective Date, Spectradyne
will assign to EDS, and EDS will assume all rights and obligations of
Spectradyne in the leases between Spectradyne and the applicable Vendors
set forth in Schedule 3.1 (the "Leases"). Without limiting EDS'
obligations under this
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Agreement, EDS may, in its sole discretion and in accordance with the terms
and conditions of the Leases or as otherwise agreed by EDS and the
applicable lessor, terminate or extend each Lease.
3.2 Inventory and Inspection. Spectradyne will prepare and submit to EDS the
following within 60 days after the Effective Date:
(a) a list of Existing Software, which list will be incorporated by
reference into this Agreement as a revised Schedule 1.3(ag) on such
list of Existing Software, Spectradyne will specify that Software
which is Spectradyne Software, Vendor Software, Transferred Software
and Accessed Software.
(b) a list of Existing Functionality, which list will be incorporated by
reference into this Agreement as Schedule 4.2. In addition,
Spectradyne will provide EDS with copies of all Spectradyne
procedures which relate to the provision of Existing Functionality.
(c) a list of all Maintained Hardware, which list will be incorporated by
reference into this Agreement as Schedule 4.5. In addition,
Spectradyne will provide EDS with copies of all maintenance agreements
with any third parties which relate to the maintenance of the
Maintained Hardware.
(d) a list of all Maintained Software, which list will be incorporated by
reference into this Agreement as Schedule 4.6. In addition,
Spectradyne will provide EDS with copies of all maintenance agreements
with any third parties which relate to the maintenance of the
Maintained Software.
(e) a list of site diagrams, specifications, electrical and wiring
information, installation procedures, inventory lists and other
information identifying and describing the equipment installed at each
Old Base Site.
3.3 Obligations Related to Vendor Software. In addition to the rights and
obligations set forth in Article XI, Spectradyne will have the following
obligations with respect to Vendor Software licensed or obtained by
Spectradyne from a Vendor:
(a) For all Vendor Software listed in Schedule 1.3 (ag), Spectradyne
will either provide Access to such Vendor Software to EDS as
provided in Section 3.3 (a) (i) below or Transfer such Software
to EDS as provided in Section 3.3(a)(ii) below.
(i) With regard to Spectradyne's obligations to provide EDS with
Access to Vendor Software, Spectradyne will secure and
maintain for EDS the right to access, display, operate,
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execute, modify and otherwise use (collectively, "Access")
such Vendor Software in connection with the performance of
the Information Technology Services. (All Vendor Software to
which Spectradyne provides EDS Access under this Section
3.3(a)(i) will be referred to as "Accessed Software.") EDS
will, except as provided for in Item 3 of Schedule 4.6, have
no obligation to perform or provide any Software Enhancement
or Software Maintenance of such Accessed Software.
(ii) With regard to Spectradyne's obligations to Transfer Vendor
Software to EDS, Spectradyne will transfer all rights and
obligations it has under any and all licenses related to
each copy of such Vendor Software ("Transfer") -(All Vendor
Software to which Spectradyne Transfers to EDS under this
Section B. 3 (a) (ii) will be referred to as "Transferred
Software.") Commencing with the effective date of any such
Transfer, EDS will pay all fees and costs related to the
license of such Transferred Software and will pay for all
Software Enhancements and Software Maintenance available
from the applicable Vendor.
(b) Spectradyne will be responsible for obtaining any consents from
third parties necessary for Accessed and Transferred Software,
including without limitation the payment of any cost or expense
associated with the applicable Vendor's consent to such Transfer
or Access, such as access fees, transfer fees and upgrade fees.
Spectradyne will either Transfer or provide Access to all Vendor
Software listed in Schedule 1.3 (acr), and all such Vendor
Software will be made available to EDS in such form and on such
media as EDS may reasonably request. If Spectradyne determines
that it is commercially unreasonable to Transfer or provide
Access to any item of Vendor Software, Spectradyne may provide
alternative Vendor Software to EDS in such item's stead with
EDS' prior written consent, which consent will not be
unreasonably withheld, delayed or conditioned.
3.4 Purchase of Vendor Hardware and Software from EDS. Subject to the
provisions of Section 7.2, Vendor Hardware and Vendor Software that
Spectradyne procures from EDS will be procured in accordance with the terms
and conditions set forth in Schedule 3.4.
ARTICLE IV.
FACILITIES MANAGEMENT SERVICES
4.1 General. The services provided by EDS under this Article IV (the
"Facilities Management Services") will support the management and
information service
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operations conducted at the Spectradyne facilities located in Richardson,
Texas or in any replacement or successor facilities located within 10 miles
of Spectradyne's facility located at 1501 North Plano Road, Richardson,
Texas 75081 (collectively, the "Spectradyne Facility"). Generally, EDS
will operate and manage Spectradyne's IS&S operations in existence
immediately prior to the Effective Date, provide Existing Functionality,
transition certain Spectradyne employees, maintain documentation, provide
training and support, provide certain Hardware maintenance, provide certain
Software maintenance, perform local and wide area network administration,
safeguard and retain Spectradyne's data and (to the extent requested by
Spectradyne) perform certain Software development (including implementation
of Vendor Software), all including such increase in services as may arise
from normal internal growth over the term of this Agreement and can be
performed using the compute environment existing as of the Execution Date
(as benchmarked under Section 4.2). In addition to their obligations in
this Article IV and elsewhere in this Agreement, EDS and Spectradyne will
each perform the facilities management obligations set forth in Schedule
4.1.
4.2 Management of Spectradyne's Existing Operations. EDS will (a) manage the
existing (as of the Execution Date) communication link between local area
networks located in Richardson, Texas and Brampton, Ontario, Canada, (b)
manage the local area networks, Hardware and Software and related
information technology operations of Spectradyne conducted at the
Spectradyne Facility, (c) provide the functionality set forth in Schedule
4.2 (the "Existing Functionality") and (d) provide the compute environment
existing as of the Execution Date (as measured by a benchmark test to be
completed within 10 Business Days after the Effective Date), as modified
from time to time by mutual agreement of the Designated Representative and
the Account Manager. EDS will have no responsibility for any information
technology operations of Spectradyne conducted at any location other than
the Spectradyne Facility, unless requested by Spectradyne under Section
7.1.
4.3 Documentation. Spectradyne will provide to the Account Manager all
documentation for (a) all Hardware subject to Leases, (b) all Maintained
Hardware and (c) all Existing Software. EDS will maintain such
documentation as well as documentation for any Software that is utilized
from time to time by EDS to provide the Facilities Management Services,
Network Services or Field Services. EDS will provide Spectradyne access to
such documentation as reasonably requested by Spectradyne for purposes of
establishing and maintaining procedures for the preparation of input,
operation and utilization of output of such Software, subject, however, to
any applicable confidentiality restrictions respecting any such Software.
All documentation developed by EDS under this Agreement is and will be
owned by EDS, but EDS will provide one copy of such documentation to
Spectradyne for Spectradyne's internal use. In addition, Spectradyne may,
at Spectradyne's cost and expense, reproduce the documentation for, and
distribute such documentation to, each workstation operated by a
Spectradyne employee that
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is located at a facility other than the Spectradyne Facility.
Spectradyne's use of any and all documentation after the Effective Date is
and will be subject to the limitations set forth in the applicable Software
license.
4.4 Training and Support. Spectradyne will identify to EDS those Spectradyne
employees who will require training from EDS and who will, in turn, train
all other Spectradyne employees. EDS will provide Software training
sessions and a training manual for such trainers, including training in the
preparation of input for and the appropriate use of output from the
Software, at the Spectradyne Facility. EDS will use commercially
reasonable efforts to assist Spectradyne employees in their operation of
the Existing Software and that Software listed on Schedule 4.4.
4.5 Hardware Maintenance. EDS will perform, or obtain from a third party and
assume financial responsibility for, the maintenance of the Hardware
identified on Schedule 4.5 (the "Maintained Hardware"). Any additions to
or substitutions for Maintained Hardware after the Effective Date may be
subject to additional charges, but no additions or substitutions will take
place unless and until the parties mutually agree on any such additional
charges.
4.6 Software Maintenance. EDS will perform, or obtain from a third party, and
assume financial responsibility for the maintenance of, the Software
identified on Schedule 4.6 (the "Maintained Software"). Any additions to
or substitutions for Maintained Software after the Effective Date may be
subject to additional charges, but no additions or substitutions will
take place unless and until the parties mutually agree on any such
additional charges.
4.7 Local and Wide Area Network Administration and Availability. EDS will
perform shared resource utilization analysis, disk utilization analysis,
environment management, domain management, interdomain management,
communication assistance, standardization, preventative maintenance and
such other similar local area network administration tasks at the
Spectradyne Facility as are requested from time to time by the Designated
Representative. In addition to the obligations above in this Section 4.7,
EDS will, working in conjunction with Spectravision of Canada personnel,
provide support for the local area network in Brampton, Ontario, Canada.
4.8 Safeguarding and Retention of Spectradyne Data. EDS will implement
procedures for the backup and protection of Spectradyne's data and will
store all media containing such data in accordance with the safeguards
described on Schedule 4.8.
4.9 Development of Certain Software. EDS will, subject to the provisions of
Section 11.4 and Section 11.5 and in accordance with the provisions of
Schedule 4.9, develop the following:
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(a) at no additional charge beyond the Base Service Charge, (i) field
service inventory management Software and maintenance tracking system
Software and (ii) an enterprise-wide data model in accordance with
Section I(f) of Schedule 4.1 which will set forth functionality for
certain Software to be developed by EDS under Section 4.9(b) and
(b) to the extent so requested by Spectradyne in accordance with Section
7.2, the Software to be set forth in Schedule 4.9 (b) based on the
results of the enterprisewide data model and containing such
functionality as is mutually agreed by Spectradyne and EDS. EDS will
begin such Software development at such time as is mutually agreed by
Spectradyne and EDS. The charges to be paid by Spectradyne, if any,
for such Software will be set forth in a development budget to be
mutually agreed upon by Spectradyne and EDS. Such charges will be in
addition to all other charges described in this Agreement.
(Spectradyne and EDS will mutually agree as to the specific
applications for which such Software will be developed and implemented
within such budget.) At or about such time as EDS provides the budget
described above to Spectradyne, EDS will also provide any additional
terms and conditions that relate to such development, and Spectradyne
and EDS will mutually agree on such terms and conditions before EDS
commences any such development.
To the extent Spectradyne desires that any other Software be developed
during the term of this Agreement, such Software development will be
an Additional Service under Section 7.1, and EDS will have a right of
first refusal to perform such Software development subject to the
provisions of Section 7.2.
(All Software developed by EDS under this Section 4.9 is referred to
as "Developed Software".)
4.10 Facilities Management Services Performance Criteria. EDS' performance of
the Facilities Management Services described above will be subject to the
performance criteria set forth in Schedule 4.10. If EDS fails to perform
the Facilities Management Services to the extent described in Section
14.4(a), EDS will pay to Spectradyne liquidated damages as described in
Section 14.4(a).
ARTICLE V.
NETWORK SERVICES
5.1 General. EDS will provide the services described in this Article V (the
"Network Services") on an "as scheduled" basis. Generally, Network
Services include uplink services, tape playback services, transponder
services, transmission monitoring services and support services.
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5.2 Uplink and Tape Playback Services. EDS will provide the uplink and tape
playback services set forth in Schedule 5.2. Spectradyne may obtain
transportable uplink services and special event broadcast, monitoring and
downlink services for special events that Spectradyne desires to broadcast
in accordance with EDS' standard terms and conditions as Additional
Services under Section 7.1, and EDS will have a right of first refusal to
perform such transportable uplink services and other services described in
this Section 5.2 subject to the provisions of Section 7.2.
5.3 Transponder Services. EDS will contract with a Vendor to obtain the
transponder capacity necessary to support (i) the broadcast of [ ]
compressed digital video channels operating at [ ] megabits per second
commencing on October 1, 1993 and continuing for a period of 4 months
thereafter, (ii) the broadcast of [ ] compressed digital video channels
operating at [ ] megabits per second for a period commencing on or about
February 1, 1994 and continuing for a period of approximately 24 months
thereafter and (iii) the broadcast of [ ] compressed digital video channels
operating at [ ] megabits per second or greater for a period commencing on
or about February 1, 1996 and continuing thereafter until such time as
Spectradyne and EDS may otherwise mutually agree. EDS will provide all of
such transponder capacity to Spectradyne under this Agreement.
If Spectradyne and EDS mutually agree that Spectradyne has excess
transponder capacity and Spectradyne requests that EDS sell such capacity
to one or more third parties, EDS will use all commercially reasonable
efforts to sell such capacity to one or more third parties. In such event,
EDS will be reimbursed its actual expenses incurred in effecting such
sale(s) from the proceeds derived from such sale as received. All
remaining proceeds will be shared between Spectradyne and EDS, with
Spectradyne receiving [ ] percent of such proceeds and EDS receiving [ ]
percent of such proceeds.
Nothing in this Agreement will prohibit Spectradyne from selling such
excess capacity itself or through a third party agent; provided, however,
that Spectradyne notifies EDS of such intent to sell and coordinates such
sale with EDS. In such event, EDS will receive no portion of the proceeds
of such sale unless such sale requires EDS to incur any cost or otherwise
expend any resources (other than coordination of the sale), in which event
EDS will be reimbursed its actual expenses from the proceeds of such sale
as received.
If Spectradyne sells such excess capacity itself or through a party other
than EDS and the use, operation or management of such transponder capacity
by the purchaser, the broker or any agent of either party interferes with
EDS' performance of Information Technology Services under this Agreement or
any third party's programming being transmitted off of such satellites, EDS
will have no liability to Spectradyne or any third party for any diminution
in such Information Technology Services, including without limitation any
diminution in the performance of any Hardware, Software, On-Site System,
signal or the
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network. (For the purpose of Section 14.1(c), any such programming using
such excess capacity will be construed as Spectradyne Programming.) EDS
will not be excused from any such liability under this Agreement if EDS is
the seller, or arranged, through a broker or agent of EDS, for the sale, of
such excess capacity. Notwithstanding the foregoing, if Spectradyne sells
such excess capacity itself or through a party other than EDS and the use,
operation or management of such transponder capacity by the purchaser, the
broker or any agent of either party interferes with EDS' performance of
Information Technology Services under this Agreement, EDS will use
commercially reasonable efforts to notify Spectradyne of any such
interference promptly upon EDS becoming aware of such interference and, to
the extent that EDS is not required to undertake any financial obligation
for which it will not be paid by Spectradyne, cooperate with Spectradyne in
taking any remedial actions.
5.4 Transmission Monitoring Services. EDS will verify the uplink transmission
quality and satellite transmission (or other signal source) quality. EDS
will sample video and audio test signals and check such signals using
waveform monitoring, spectrum analysis, vector analysis and audio analysis
for compliance with the specifications for such signal to which Spectradyne
and EDS have mutually agreed. Abbreviated tests will be performed during
each broadcast, and complete tests will be performed once each calendar
month. EDS will perform all such services at the EDS Information
Management Center located in Plano, Texas.
5.5 Support Services. EDS will provide the engineering and management of
microwave, cable and other telecommunications-based distribution of
Spectradyne Programming.
5.6 Changes to Network Services. From time to time, the parties may agree in
an Authorized Field Service Order to alter the Network Services to be
provided for a particular Spectradyne Installation Site. The description
of the changes to the Network Services and any changes to the charges
therefor will be documented in the Authorized Field Service Order as an
amendment to the Network Services and Network Services charges for that
Spectradyne Installation Site.
5.7 Network Service Performance Criteria. EDS' performance of the Network
Services described above will be subject to the performance criteria set
forth in Schedule 5.7. If EDS fails to perform the Network Services to the
extent described in Section 5, of Schedule 5.7, EDS will pay to Spectradyne
liquidated damages as described in Section 14.4 (b).
ARTICLE VI.
FIELD SERVICES
6.1 General. EDS will perform the field services described in this Article VI
(the "Field Services") from the Effective Date and for the term of this
Agreement
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for all sites in which EDS installs, or through the use of a subcontractor
causes to be installed, Hardware. EDS' obligations as to any site under
this Section 6.1 will commence on the date that the installation commences
and will end on the End Date. For Field Services related to all other
sites, EDS will perform Field Services at such sites commencing with the
date(s) set forth in the transition plan set forth in Schedule 6.1 (the
"Transition Plan") or as otherwise agreed by EDS and Spectradyne.
Generally, the Field Services include the performance of all Installation
Services, on-site warranty service and on-site maintenance of all video
delivery equipment, including without limitation videocassette players,
racks, frequency agile modulators, CDVRO Systems, IRDs and equipment used
to deliver "free-to-guest" and "interactive" services (including
maintaining delivery of signals at quality levels specified in Schedule 5.7
for "free-to-guest" and compressed digital programming to sites),
supervision of any work subcontracted by EDS to a third party, provision
of the Customer Assistance Center, facilitation of the return of in-room
units to Spectradyne for repair and such other field service obligations as
EDS and Spectradyne may mutually agree.
6.2 Field Service Orders. From time to time, Spectradyne will complete and
issue to EDS service orders (each a "Field Service Order") with respect to
Old Base Sites and New Base Sites in substantially the form set forth in
Schedule 6.2. Each Field Service Order will request EDS to provide
specified Field Services. In those instances where the Field Service Order
requests that EDS perform an installation, Spectradyne will complete and
attach to such Field Service Order a questionnaire (the form of which is
set forth in Appendix to the Transition Plan, the "Spectradyne
Installation Site Questionnaire") for each new Spectradyne Installation
Site (meaning each such site where an installation has not been previously
performed by EDS) set forth in such Field Service Order. A Spectradyne
Installation Site Questionnaire may, but is not required to, accompany each
Field Service Order involving a Spectradyne Installation Site at which
Spectradyne Hardware and/or EDS Hardware has previously been installed.
(a) EDS will accept or reject each Field Service order within five
Business Days of EDS' receipt of such Field Service Order. Any Field
Service Order not rejected by EDS in writing in accordance with
Section 6.2(b) and Section 6.2(c) within five Business Days after EDS
receives such Field Service Order will be deemed accepted.
(b) EDS will accept Field Service Orders by signing and returning the
Field Service Order to Spectradyne (an "Authorized Field Service
Order"). Only Authorized Field Service Orders will be binding on the
parties, and neither party will have any liability or obligation under
this Agreement for any Field Service Order other than Authorized Field
Service Orders.
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(c) EDS will accept all Field Service Orders that comply with the terms
and conditions of this Agreement. ALL Field Service Orders will:
(i) require only the installation or maintenance of Hardware or
Software set forth in Schedule 1.3(n) or Schedule 6.2(c)(i) or
require maintenance of any videocassette players or other video
delivery equipment, which Schedules may be amended at any time
by mutual agreement of Spectradyne and EDS (such Hardware and
Software not set forth Schedule 1.3(n) and Schedule 1.3(ag) is
referred to as "Non-Standard Products"),
(ii) together with all Authorized Field Service Orders, cause EDS to
perform no more than 400 installations (unless otherwise
mutually agreed by Spectradyne and EDS) in any given calendar
month,
(iii) request Network Services and Field Services in accordance with
an installation plan to be developed and mutually agreed to by
Spectradyne and EDS as part of the Transition Plan and
(iv) not require the maintenance by EDS of Non-Standard Products,
unless otherwise agreed by EDS.
If EDS rejects a Field Service Order, EDS will give Spectradyne a
written statement of the reasons for such rejection. If the parties
are unable to mutually agree on a revision of the Field Service Order,
Spectradyne will, by written notice to EDS, withdraw the Field Service
Order and then may issue a revised Field Service Order that complies
with the terms and conditions of this Agreement for the same
Spectradyne Installation Site. Spectradyne will issue any revised
Field Service Order within five Business Days from the date the
previous Field Service Order is rejected. If Spectradyne revises and
resubmits a Field Services order under this Section 6.2, and such
revised and resubmitted Field Service Order is rejected by EDS for
reasons that Spectradyne, in good faith, believes are arbitrary,
Spectradyne may submit the issue of such rejection to review and, if
unresolved to Spectradyne's satisfaction, arbitration under the
provisions of Article XII.
Spectradyne may, subject to the provisions of Section 7.2, make
arrangements with another Vendor for the installation and maintenance
of Non-Standard Products and the performance of the miscellaneous
services described in Section 2 of Schedule 6.6.
(d) If Field Services remain to be performed under a Field Service Order
after any termination or expiration of this Agreement, EDS will have
no
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obligation to perform and no other liability for any such Field
Services after the End Date.
6.3 Changes to and Cancellations of Field Service Orders. Spectradyne may
(a) change or cancel a Field Service Order at any time without charge,
penalty or other liability.
(b) change or cancel an Authorized Field Service Order at any time before
EDS has commenced work under the Authorized Field Service Order
without charge, penalty or other liability.
(c) change or cancel an Authorized Field Service Order at any time after
EDS has commenced work under the Authorized Field Service Order,
provided, however, in such event, Spectradyne will pay to EDS an
amount equal to EDS' incremental cost, if any, resulting from such
change or cancellation, for such effort plus ten percent (the latter
being an allocation for general administrative costs). EDS will use
commercially reasonable efforts to mitigate such incremental casts
incurred by EDS.
Changes, to (but not cancellations of) an Authorized Field Service Order will be
processed as a new Field Service Order and are subject to the approval of EDS as
provided in Section 6.2.
6.4 Provision of Certain Hardware and Software. EDS will provide to
Spectradyne CDVRO Systems and IRD Systems identified in and ordered
pursuant to Authorized Field Service Orders, subject, however, to the
provisions of, Section 3.4. In addition, after SPI Holding, Inc. has
entered into 2,200 Leases for Personal Computer Functionality under the
PCFM (as such capitalized term is, for the purposes of this Section 6.4,
defined therein), EDS will, if requested by Spectradyne or by SPI Holding,
Inc. if Spectradyne has assigned its rights and obligations under this
Section 6.4 to SPI Holding, Inc. in accordance with Section 15.8, provide
to Spectradyne (or SPI Holding, Inc., as the case may be) Personal Computer
Functionality in accordance with the provisions of Schedule 6.4 in
conjunction with CDVRO Systems and IRD Systems at New satellite Base Sites.
EDS will, in addition to its Field Service obligations related to other
Hardware under this Article VI, maintain each such Personal Computer that
EDS provides under this Agreement in accordance with Schedule 6.4.
Title in all CDVRO Systems, IRD Systems and Personal Computers for New
Satellite Base Sites provided by EDS under this Agreement will remain in
EDS, provided, that (i) title to CDVRO Systems will transfer to
Spectradyne on the fifth anniversary of the date on which each such CDVRO
System is installed or as provided in the Termination Transition if this
Agreement is terminated prior to such fifth anniversary and (ii) title to
the Personal
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Computers (meaning Personal Computers provided under this Agreement) will
transfer to Spectradyne in accordance with Schedule 6.4 or as provided in
the Termination Transition if this Agreement is terminated prior to the
fifth anniversary of the date on which such Personal Computer is installed.
If Spectradyne adds [ ] New Satellite Base Sites, Spectradyne and EDS
will, within 10 Business Days after the date on which such [ ]
New Satellite Base Site is added, meet and review EDS' costs related to the
CDVRO Systems, IRD Systems and Personal Computers. If the costs for such
CDVRO Systems, IRD Systems and Personal Computers materially increase or
decrease compared to EDS' costs on the effective date of the PCFM, then
Spectradyne and EDS will enter into good faith negotiations for the
purposes of revising the prices for CDVRO Systems, IRD Systems and
Personal Computer Functionality. Upon the completion of such negotiations,
Schedule 9.1 will be amended to reflect such prices (which prices will in
no event increase or decrease by more than [ ] percent), and such pricing
will become effective 30 days after the effective date of such amendment.
6.5 Installation. EDS will provide the installation services (the
"Installation Services") for CDVRO Systems, IRD Systems, Personal Computers
(provided under Section 6.4) and such other Hardware and Software as the
parties may mutually agree at Spectradyne Installation Sites, as each
Spectradyne Installation Site is identified in the applicable authorized
Field Service Order. Notwithstanding the foregoing, Spectradyne may submit
Field Service Orders for more installations than are contemplated in the
installation plan created as part of the Transition Plan, and EDS will, in
accordance with Section 6.2, authorize such Field Service Orders and
perform such Installation Services as an Additional Service under Section
7.1. Schedule 6.5 more particularly sets forth the Installation Services,
including without limitation Special Efforts for Installation Services.
6.6 Customer Assistance Center and Maintenance Services. EDS will provide the
Customer Assistance Center and maintenance support services set forth in
Schedule 6.6.
6.7 Geographic Area Covered by Field Services. Field Services, including, in
addition to the Field Services themselves, all financial obligations
related to vehicle leases, equipment leases and real property leases for
each district, will be transitioned from Spectradyne to EDS in accordance
with the Transition Plan or as otherwise mutually agreed by Spectradyne and
EDS over the term of this Agreement. Spectradyne intends to transfer to
EDS the responsibility for all Field Services for all sites located in
North America, including the continental United States, Alaska, Hawaii,
Canada, Mexico, the Virgin Islands and Puerto Rico and including those
locations commonly referred to by Spectradyne and EDS as "studio sites"
or "studio locations", which number is currently estimated to be 2,500
("All North American Sites").
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Spectradyne represents that Spectradyne is reviewing a proposal from a
third party real estate consultant for the purposes of identifying and
engaging the services of such consultant (at Spectradyne's expense) to
negotiate the termination of real property leases for which EDS would
assume financial responsibility after the applicable district is
transitioned to EDS under the Transition Plan. To the extent that such
consultant is able to terminate any such leases and savings result (meaning
the difference between (i) what Spectradyne and EDS, collectively, would
have paid if such lease had continued through the end of the term of such
lease and (ii) the amount actually paid, if anything (other than the
consultant's fees), Spectradyne and EDS will share in the savings. In
such event, Spectradyne will be reimbursed its actual expenses incurred in
effecting such terminations, including without limitation such consultant's
fee, and all remaining savings will be shared between Spectradyne and EDS,
with EDS receiving [ ] percent of such savings and Spectradyne receiving
[ ] percent of such savings.
6.8 Field Service Performance Criteria. EDS' performance of the Field Services
described above will be subject to the performance criteria set forth in
Schedule 6.8. If EDS fails to perform the Network Services to the extent
described in Section 1 of Schedule 6.8, EDS will pay to Spectradyne
liquidated damages as described in Section 14.4 (c) .
EDS' compliance with the performance criteria described in this Section 6.8
will be measured through reports generated by the Customer Assistance
Center and will be monitored, and corrected to the extent required, as a
part of the quality review process described in Section 8.4. Such reports
will be provided to Spectradyne on a monthly basis, as performance levels
may otherwise require or as Spectradyne and EDS may otherwise mutually
agree. The Customer Assistance Center will be the EDS point of contact for
all trouble reporting and resolution related to Field Services. The
Customer Assistance Center will accumulate data based on the number of
calls, the type of calls, the trouble reported, the response time, the
resolution or repair time and such other information as Spectradyne and EDS
may mutually agree. Spectradyne and EDS will consult with each other on
the format of all reports.
6.9 Disaster Recovery. Generally, if a natural or man made disaster occurs at
or with the EDS uplink facility, the leased transponder, the leased
satellite or one or more of Spectradyne's customer's facilities, EDS will
promptly assess what services have been impacted, the degree of damage to
Hardware located inside and outside of such site and the physical ability
to restore permanent or temporary service based on the condition of the
site and the Hardware. Based on such assessment, EDS will determine what
Hardware and human resources are required to restore service, where the
resources are located, how quickly the resources can be deployed and what
the costs will be as a function of the response time. EDS will notify
Spectradyne immediately of any such disaster and will consult with
Spectradyne at each stage of the implementation of any disaster recovery
plan.
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More specifically, if a natural or man made disaster affects one or more of
the following pieces of hardware, the following specific procedures will be
implemented:
(a) Transponder Failure. If a transponder provided by a Vendor to EDS to
transmit a signal for Spectradyne is unable to transmit such signal,
then EDS will contact such Vendor and will, at no addition to the
Field Service Charges set forth in Schedule 9.1 (except as set forth
in Section 6. 9 (b) (i)) , use good faith efforts to cause such Vendor
to attempt to restore, and complete such restoration,of, transmission
capability using on-board spares, if available, within 24 hours of
such failure. If the use of on-board spares fails to restore
transmission capability, at no addition to the Field Service Charges
set forth in Schedule 9.1 (except as set forth in Section 6.9 (b)
(i)), EDS will use good faith efforts to cause the applicable Vendor
to make an alternate transponder on the same satellite available for
transmission of the signal within 48 hours of such failure.
(b) Satellite Failure. If the satellite being used by EDS to provide
transmission services for Spectradyne fails, a team including
management personnel of Spectradyne, EDS and the applicable Vendor
will promptly assess the following options and implement the solution
Spectradyne and EDS mutually agree is the most appropriate as soon as
practicable: (i) locate an alternative space segment and repoint each
CDVRO System such that the CDVRO Systems are capable of receiving the
signal from such other satellite within 60 days of such failure, which
solution will involve an addition to the Field Service Charge set
forth in Schedule 9.1 (determined on a time and materials basis, with
no profit factor) or (ii) such other solutions as Spectradyne, EDS and
the applicable Vendor may mutually agree.
(c) Uplink Failure - Outdoor Hardware. If the outdoor earth station
transmission Hardware being used by EDS to transmit a signal for
Spectradyne fails, EDS will, without increasing the Field Service
Charge set forth in Schedule 9.1, use commercially reasonable efforts
to implement one or more of the following: (i) restore all or part of
the service within 8 hours of such failure by rerouting traffic via
terrestrial links to alternate uplink locations, (ii) restore all or
part of the service within 8 hours of such failure using undamaged EDS
Hardware located at such site, (iii) restore all or part of the
service within 48 hours of such failure using transportable earth
stations until such time as the failed hardware is repaired or (iv)
restore all or part of the service within 48 hours of such failure by
moving program replay Hardware to an alternate transmission facility.
(d) Uplink Failure - Indoor Hardware. If the indoor earth station
transmission Hardware being used by EDS to transmit a signal for
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Spectradyne fails, EDS will, without increasing the Field Service
Charge set forth in Schedule 9.1, use commercially reasonable efforts
to promptly implement one or more of the following: (i) restore all
or part of the service within 8 hours of such failure by rerouting
traffic via terrestrial links to alternate playback/uplink locations,
(ii) restore all or part of the service within 8 hours of such failure
using undamaged EDS Hardware located at such site, (iii) restore all
or part of the service within 48 hours of such failure using
transportable playback facilities until such time as the failed
hardware is repaired or (iv) restore all or part of the service within
24 hours of such failure by moving program replay and/or encoding
hardware to an alternate transmission facility. EDS will provide a
disaster recovery plan for each such eventuality mutually acceptable
to Spectradyne and EDS and incorporate such plan into this Agreement
by adding such plan to this Agreement as Schedule 6.9, which plan will
include the obligations set forth in this Section 6.9 above and the
more specific obligations of EDS, Spectradyne and the applicable
Vendors. Spectradyne will use good faith efforts to promptly review,
modify, if necessary, and approve such disaster recovery plan within
60 days after the Effective Date.
ARTICLE VII.
ADDITIONAL SERVICES
7.1 Additional Products and Services. During the term of this Agreement,
Spectradyne may request and EDS may offer products and services that are
beyond the scope of this Agreement. Additional products are any Non-
Standard Products and any other products that Spectradyne may desire beyond
those contemplated in this Agreement (the "Additional Products") .
Additional services are any services other than the Facilities Management
Services described in Article IV, the Network Services described in Article
V, the Field Services described in Article VI, and those services described
in Sections 7.2(b)-(d) and that relate to Spectradyne's information
technology needs (the "Additional Services"). No Additional Products or
Additional Services will be provided by EDS or charged to Spectradyne
unless the description of the products and/or services to be provided, the
price to be paid and any additional or modified terms and conditions
(meaning additional to or modifications of the terms and conditions of this
Agreement) are mutually agreed to in a writing signed by the Account
Manager and the Designated Representative and then added as an addendum to
this Agreement.
7.2 Right of First Refusal Regarding Additional Products and Additional
Services. During the term of this Agreement, if Spectradyne desires (a)
Additional Products, (b) software development services in addition to those
set forth in Section 4.9(a) and Section 4.9(b), (c) transportable uplink
services described in Schedule 5.2 or (d) miscellaneous on-site support
described in Section 2 of Schedule 6.6, EDS will have a right of first
refusal to provide such products and perform such services. Spectradyne
will notify EDS of such Additional
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Products and such services in writing on or before the date on which it
notifies any Vendor that Spectradyne may consider for the provision of such
Additional Products or performance of such services. EDS will provide
Spectradyne with written notice of EDS' decision as to whether or not EDS
would like to provide the Additional Products or perform the services
described by Spectradyne within 10 Business Days of EDS, receipt of a
complete, written description of the Additional Products and/or services
Spectradyne desires and the date on which EDS will provide Spectradyne with
a proposal for such Additional Products and/or services.
Spectradyne may obtain bids from Vendors, and to the extent that
Spectradyne obtains such bids, Spectradyne will compare the charges of such
Vendors providing similar quality products and/or performing similar
quality services (in each case meaning similar quality to that of EDS)
against the charges set forth in EDS' written quote. If it is determined
that EDS' charges are more than [ ] percent greater than those of the third
party that Spectradyne would otherwise choose to provide such Additional
Products and/or perform such services, then EDS will have a right of first
refusal to provide such Additional Products and/or to perform such services
and, if EDS so elects by providing written notice to Spectradyne of such
election within 5 Business Days after Spectradyne's notice to EDS of the
amount of such Vendor's quote, Spectradyne will engage EDS to provide such
Additional Products or services for an amount equal to the amount set forth
in such Vendor's quote plus [ ] percent. If EDS elects not to provide such
Additional Products and services, Spectradyne will be free to have such
lower priced Vendor provide such Additional Products or perform such
services. If EDS' charges are less than [ ] percent greater than those of
such Vendor, Spectradyne will engage EDS to provide such Additional
Products and/or perform such services.
To the extent that Spectradyne desires Additional Services that Spectradyne
elects not to use Spectradyne employees to perform, Spectradyne will
provide EDS with notice of such Additional Services and an opportunity to
bid on such Additional Services. Spectradyne may purchase Additional
Services in its sole discretion.
Spectradyne agrees that if it uses a Vendor to provide Additional Products
or perform services related to its information technology needs, EDS will
have no responsibility for any such Additional Products or services
performed or the effects of such Additional Products or services on any
Hardware or Software or related performance criteria. Spectradyne will
use commercially reasonable efforts to prevent such Additional Products and
services from adversely affecting the ability of EDS to perform its
obligations under this Agreement or increase the expense to EDS to perform
its obligations under this Agreement. To the extent that such Additional
Products or services adversely affect EDS' ability to meet a performance
standard set forth under this Agreement or to otherwise perform its
obligations under this Agreement, EDS will be relieved
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of such obligations, and Spectradyne will, nonetheless, pay EDS for any
such Information Technology Services performed.
ARTICLE VIII.
WARRANTIES, REMEDIES AND QUALITY REVIEW
8.1 Warranties from Vendors. EDS has obtained or will obtain from each
applicable Vendor an agreement that all warranties made by such Vendor
related to Vendor Hardware and Vendor Software procured by Spectradyne from
or through EDS under this Agreement (express or implied, if any) will pass
through or be assigned to Spectradyne. Execution of this Agreement by
Spectradyne or acceptance of this Agreement by EDS will in no manner be
construed to relieve any Vendor of the requirements to fulfill all
obligations of such Vendor to Spectradyne as if Spectradyne were a direct
purchaser from such Vendor. Spectradyne agrees to look solely to the
applicable Vendor for any and all warranty claims with respect to any such
Vendor Hardware and Vendor Software except for the warranties from EDS set
forth in Section 8.2.
(a) EDS Software. EDS warrants that, for a period of one year from the
date on which any particular EDS Software is installed, such EDS
Software will operate in accordance with the applicable
specifications.
(b) Vendor Hardware and Vendor Software. In addition to those warranties
provided by the Vendors, EDS warrants, as to any Vendor Hardware or
Vendor Software acquired by Spectradyne by or through EDS pursuant to
this Agreement, that
(i) EDS has all necessary authority, right and power to convey good,
marketable and unencumbered title to all such Vendor Hardware to
which title will pass to Spectradyne under this Agreement, and
that EDS is authorized by the applicable Vendor to market and
provide such Vendor Software, subject to the applicable license
agreements, to Spectradyne and
(ii) any such conveyance is or will be in accordance with EDS'
agreements with the applicable Vendor of such Vendor Hardware or
Vendor Software and is not in violation of or in conflict with
any law, rule or regulation which, if violated by EDS, the
liability for such violation would flow in part or in whole to
Spectradyne or any other EDS obligation to any third party.
(For the purposes of this Section 8.2 (b), the Vendor may or may not
be the owner of the applicable intellectual property rights but
represented and warranted to EDS that it has, directly or indirectly,
obtained all rights necessary to provide such Vendor Hardware or
Vendor Software, as the case may be, to EDS and EDS is relying, in
good faith and without actual knowledge to the contrary, on such
Vendor's
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representations and warranties in providing such Vendor Hardware and
Vendor Software to Spectradyne. Because Spectradyne is looking to the
Vendor for all warranties under Section 8.1, nothing in this Agreement
will be construed as EDS making and Spectradyne receiving from EDS any
warranty regarding any Vendor's claim to any intellectual property
right.)
(c) Integration. If EDS performs any integration of Vendor Hardware
and/or Vendor Software, Spectradyne Software or EDS Software, EDS
warrants that such integration will be performed in a good and
workmanlike manner in accordance with EDS' own internal standards for
such integration and in accordance with any written specifications
mutually agreed to by Spectradyne and EDS. In particular, with regard
to CDVRO Systems and, to the extent applicable, Personal Computers,
EDS warrants that each CDVRO System and Personal Computer will be
integrated in accordance with the integration specifications therefor
(such specifications for the integration of the CDVRO System are set
forth in Schedule 8.2(c)). EDS will have no liability for any impact
on any Vendor's warranty from integration by EDS in accordance
herewith.
(d) Disclaimer of Warranties. The warranties contained in Section 8.2 (a)
and Section 8.2 (c) are contingent upon proper use of Vendor Hardware
and Vendor Software and do not cover Vendor Hardware or Vendor
Software on which the original identification marks have been removed
or altered or which have been modified without EDS' approval,
improperly tested by Spectradyne or which have been subjected to
unusual physical or electrical stress (including without limitation
any such stress which would give rise to an excusable delay under
Section 15.2). THE WARRANTIES SET FORTH IN THIS SECTION 8.2 ARE
LIMITED WARRANTIES. EXCEPT AS SPECIFICALLY STATED ABOVE IN THIS
SECTION 8.2, EDS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE OF ANY INFORMATION TECHNOLOGY
SERVICES, CDVRO SYSTEM, HARDWARE, SOFTWARE, SATELLITE, SIGNAL
TRANSMITTED OR OTHER PRODUCTS AND SERVICES PROVIDED UNDER THIS
AGREEMENT. No representation or warranty made by any person,
including any representative of EDS, which is inconsistent or in
conflict with, or in addition to the terms of, the warranties set
forth in this Section 8.2 will be binding upon EDS unless expressed in
a writing signed by a duly authorized representative of EDS.
8.3 Remedies. EDS will, at no additional cost to Spectradyne, assist
Spectradyne in exercising (or, if necessary will exercise on Spectradyne's
behalf) Vendor
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warranties applicable to any Vendor Hardware and Vendor Software provided
by or through EDS pursuant to this Agreement. Spectradyne's sole and
exclusive remedy and EDS' sole and exclusive liability for any breach of
EDS' warranty provided under Section 8.2, will be:
(a) Warranties under Section 8.2(a). With regard to any breach of EDS'
warranty set forth in Section 8.2(a) regarding EDS Software, EDS will
modify the EDS Software to the extent necessary such that it performs
in accordance with the applicable specifications. If EDS is required
to modify EDS Software under this Section 8.3(a), EDS will have a
reasonable time to complete such modification.
(b) Warranties under Section 8.2 (b) and Section 8.2 (c). Spectradyne's
sole and exclusive remedy and EDS' sole and exclusive liability for
any breach of any EDS warranty set forth in Section 8.2 (b) and
Section 8.2 (c) will be (at EDS' option) to repair, replace or, solely
with regard to EDS' obligations under Section 8.2(b), credit
Spectradyne's account for (i) any Vendor Hardware or Vendor Software
as to which EDS does not have such rights as are warranted and (ii)
any improperly integrated Vendor Hardware or Vendor Software procured
by Spectradyne from or through EDS under this Agreement. If EDS
elects to make a repair or to effect a replacement, EDS will have a
reasonable time to make such repair or replacement. EDS will pay all
reasonable costs for any transportation, rigging, drayage, taxes,
insurance and any other documented reasonable costs related to any
such repair or replacement.
(c) If the sole and exclusive remedy provided in Section 8.3 (a) or
Section 8.3(b) fails of its essential purpose, then, as an alternative
sole and exclusive remedy, Spectradyne may recover from EDS, subject
to the provisions of Section 14.4, direct damages incurred by
Spectradyne.
8.4 Quality Review. Each year during the term of this Agreement, or more
frequently if requested in writing by either party, EDS and Spectradyne
will meet and jointly participate in EDS, quality review program to review
the performance by each party of its obligations under this Agreement. The
performance of each party will be measured against the applicable
performance criteria, as set forth in this Agreement, or as otherwise
mutually agreed by the Designated Representative and the Account Manager.
ARTICLE IX.
PAYMENT
9.1 Charges. Spectradyne will pay EDS the charges set forth in Schedule 9.1.
The charges for any Additional Products procured by Spectradyne from EDS
under Section 3.4 will be as provided under Schedule 3.4. Any charges for
Additional Services will be those to which the parties mutually agree
before the commencement of any such Additional Services.
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9.2 Terms of Payment. EDS will provide Spectradyne with invoices on a monthly
basis (on or about the 15th day of each month) for all Information
Technology Services performed and all other charges incurred by Spectradyne
under this Agreement during the immediately prior month. Transponder
charges will be paid as provided in the agreement between the Vendor
providing the transponder and EDS, but in no event will EDS agree (without
Spectradyne's prior written consent) to payment terms less favorable than
payment of charges monthly in advance. Except for transponder charges and
unless otherwise agreed by EDS and Spectradyne, all other sums due EDS
hereunder for which a time for payment is not otherwise specified will be
due and payable 30 days after receipt by Spectradyne of an invoice from
EDS. Any sum due EDS hereunder that is not paid when due will thereafter
bear interest until paid at a rate of interest equal to the lesser of (i)
two percent per annum more than the "prime" rate announced as such from
time to time by Citibank N.A., New York, or successor and (ii) the maximum
rate of interest allowed by applicable law.
9.3 Bonus. Spectradyne will pay EDS a bonus, meaning an amount in addition to
any and all other charges under this Agreement, if EDS delivers the
Digitally Based Video On Demand System to Spectradyne prior to the Delivery
Date. The amount of the bonus will equal:
(a) [ ] if EDS delivers the Digitally Based Video On Demand System at
least 1 but less than 31 days prior to the Delivery Date,
(b) the amount set forth in (a) above plus an additional [ ] if EDS
delivers the Digitally Based Video on Demand System between 31 and 60
days prior to the Delivery Date or
(c) the amount set forth in (b) above plus an additional [ ] if EDS
delivers the Digitally Based Video On Demand System more than 60 days
prior to the Delivery Date.
9.4 Taxes. Spectradyne will pay to EDS amounts equal to any sales, use,
privilege, excise or other taxes based on gross receipts, however
designated or levied, imposed on Spectradyne as the acquiring entity but
paid or payable by EDS on the (i) charges imposed under this Agreement,
(ii) this Agreement or (iii) any Information Technology Services, Software,
Hardware (except for property taxes on EDS Hardware), other service or
materials provided under this Agreement or upon their use. However,
Spectradyne is not responsible for (i) any franchise taxes, taxes based on
the net income or payroll of EDS or (ii) property taxes on EDS Hardware
unless and until such EDS Hardware becomes the property of Spectradyne. To
the extent that any taxes are imposed on charges relating to any financed
hardware, such taxes will be included in the amounts financed.
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9.5 Distribution of Revenue Related to New Business. Spectradyne and EDS
anticipate that certain new business opportunities will arise out of the
infrastructure (meaning the network, Hardware, Software and Information
Technology Services provided by EDS) put in place under this Agreement and
arising out of intellectual property developed by either Spectradyne or EDS
under this Agreement. Spectradyne and EDS agree that any revenues arising
out of or related to new business (other than revenue from the distribution
of video programs (meaning the amount charged for the video program itself)
provided to a hotel, prison, hospital, nursing home or supervised
retirement facility, military installation or time share property on a pay-
for-view basis) (i) that is not conducted solely within the confines of
individual sites and (ii) in which Spectradyne and EDS have participated in
the sale or will participate in the operation will be distributed between
Spectradyne and EDS based upon the allocation of risk, the party selling
the business, the capitalization of the business and such other matters as
Spectradyne and EDS may mutually agree. The distribution of revenue will
be determined by Spectradyne and EDS on a case-by-case basis.
ARTICLE X.
SPECTRADYNE OBLIGATIONS
10.1 Obligation to Purchase from EDS. From the Effective Date until the tenth
anniversary of the Effective Date or such earlier date that this Agreement
is terminated as provided for in Article XIII, Spectradyne will, in
addition to its obligations under Article VII, use EDS exclusively as its
provider of the Facilities Management Services (other than Software
development), Network Services, Field Services (other than miscellaneous
Field Services described in Section 2 of Schedule 6.6), CDVRO Systems and
IRD Systems.
10.2 Spectradyne's Performance Obligations. In addition to its obligations set
forth in Schedule 4.1 and elsewhere in this Agreement, Spectradyne will,
during the term of this Agreement and in order for EDS to meet its
obligations, provide the following on a timely basis:
(a) Support of EDS's Performance. The Information Technology Services to
be provided by EDS require the support and cooperation of Spectradyne.
Spectradyne agrees to cooperate with EDS by, among other things,
setting priorities with respect to EDS' work, providing management
review and approval as reasonably requested by EDS, and making
available information and other resources reasonably requested by EDS.
(b) Compliance with Laws. Spectradyne, in its use and operation of the
On-Site Systems (in whole or in part) and the Spectradyne
communications networks will comply with all applicable statutes,
ordinances, decrees, requirements, orders, judgments, rules or
regulations of, including the terms of any license or permit issued by
any governmental entity or authority, whether federal, state or local.
Spectradyne waives the
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application of the Texas Deceptive Trade Practices-Consumer Protection
Act to this Agreement and the transactions contemplated herein.
(c) Additional Performance Obligations In addition to its obligations in
this Article X and elsewhere under this Agreement, Spectradyne will
perform the additional performance obligations forth in Schedule 10.2
(c).
ARTICLE XI.
PROPRIETARY RIGHTS
11.1 EDS Hardware. Title to EDS Hardware will remain in EDS or any appropriate
third party, and the EDS Hardware will be and remain the property of EDS or
such third party, regardless of any attachment to real estate, even if it
is deemed to be a fixture. Title and risk of loss or damage to Hardware
purchased by Spectradyne from or through EDS will transfer to Spectradyne
as provided in Schedule 3.4. Spectradyne agrees (a) to keep the EDS
Hardware and all Hardware purchased by Spectradyne from or through EDS free
from all liens, claims and encumbrances (excluding only such liens created
by EDS and such claims created by agreements between Spectradyne and
Spectradyne's creditors executed prior to the Effective Date, all
extensions, renewals or refinancings of such prior obligations and all
other debt denominated as Senior Debt, all of which claims created by
agreements between Spectradyne and Spectradyne's creditors will be junior
to any claim that EDS may have in the Hardware purchased by Spectradyne
from or through EDS) and (b) except for such junior liens, to do nothing to
impair or encumber EDS' title or lien rights to or in (i) the EDS Hardware
or (ii) the Hardware purchased by Spectradyne from or through EDS, in the
case of the Hardware referred to in (ii) for so long as Spectradyne or any
Spectradyne Affiliate owes any purchase money to EDS as to such Hardware.
Spectradyne agrees to execute and deliver UCC financing statements,
estoppel certificates and such other documents as EDS may reasonably
request to document (i) EDS' or any third party's ownership of the EDS
Hardware, (ii) EDS' lien rights in Hardware purchased from or through EDS
by Spectradyne and financed by EDS directly or indirectly through a
Spectradyne Affiliate and (iii) EDS' right to install and use EDS Hardware
at the Spectradyne Installation Sites to perform its obligations under this
Agreement. EDS agrees to execute and deliver to Spectradyne such bills of
sale or other appropriate instruments of conveyance of title to any
Hardware procured by Spectradyne from or through EDS as Spectradyne or its
lenders may reasonably request. Further, within a reasonable time after
Spectradyne has made payment in full for all Hardware purchased by
Spectradyne from or through EDS and upon Spectradyne's request, EDS will
execute and deliver to Spectradyne such documents as Spectradyne may
reasonably request to document the satisfaction or elimination, as the case
may be, of EDS' lien rights in such Hardware purchased by Spectradyne.
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As an accommodation to Spectradyne and without waiving any of its rights to
EDS Hardware as between EDS and Spectradyne or EDS and Spectradyne's
customers, EDS will not require Spectradyne's customers to execute any such
documents. EDS will pay all fees associated with the delivery and filing
of such documents so executed by Spectradyne, and Spectradyne will pay all
fees associated with the delivery and filing of such documents so executed
by EDS.
11.2 Vendor Software. Vendor Software will remain the property of the
applicable Vendor. All Vendor Software provided and used by EDS under this
Agreement, other than Vendor Software provided through EDS under Section
3.4 and licensed by the Vendor directly to Spectradyne, will be licensed by
the Vendor directly to EDS. All Vendor Software provided under Section 3.4
will be licensed by the Vendor to Spectradyne.
Neither Spectradyne nor EDS will have any obligation to control or audit
the Software resident on any Hardware operated by any employee of the
other, and Spectradyne and EDS are each and will each remain liable to any
Vendor for any unauthorized copies made by any of its employees of any
Vendor Software.
11.3 Spectradyne Software. Spectradyne Software will remain the property of
Spectradyne. Spectradyne hereby grants to EDS a license to access,
install, display, operate, execute, modify, copy and otherwise use the
object code and source code versions of all Spectradyne Software at All
North American Sites and elsewhere in North America, but such license
applies only as reasonably required by EDS in connection with the
performance by EDS of its obligations under this Agreement. The term of
the license set forth in this Section 11.3 will commence with the Effective
Date and end on the End Date. EDS will have no right to transfer or assign
its rights in any Spectradyne Software without the prior written consent of
Spectradyne. In addition, EDS and Spectradyne will have the following
rights and obligations related to the Spectradyne Software:
(a) Operators. Except with the prior written consent of Spectradyne,
which consent will not be unreasonably withheld or delayed, or to the
extent required by natural disaster or similar emergency, the
Spectradyne Software will not be operated, directly or indirectly, by
persons other than bona fide employees, agents or subcontractors of
EDS or Spectradyne.
(b) Spectradyne Work. Except with the prior written consent of
Spectradyne, only Spectradyne work or EDS work directly and
exclusively related to Spectradyne work may be processed using the
Spectradyne Software.
(c) Confidentiality of Spectradyne Software. EDS will keep the
Spectradyne Software confidential, will not at any time allow the
Spectradyne Software or any of the various components thereof or
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modifications thereto to be used (other than as provided for in this
Agreement), disclosed, sold, copied, reproduced, licensed, assigned,
leased or commercially exploited or marketed to any third party in any
way, with or without charge, by EDS, its employees, agents or
subcontractors.
(d) Irreparable Harm. EDS acknowledges that the Spectradyne Software is
the valuable property of Spectradyne, that violation in any material
respect of any provision of this Section 11.3 would cause Spectradyne
irreparable injury for which it would have no adequate remedy at law,
and that Spectradyne will be entitled to preliminary and other
injunctive relief against any such violation. Such injunctive relief
is in addition to, and in no way in limitation of, any and all other
remedies or rights which Spectradyne has at law or in equity.
11.4 EDS Software. All EDS Software will remain the property of EDS. EDS
hereby grants to Spectradyne a royalty-free license for the term described
in this Section 11.4 and, to the extent applicable, Section 11.5, to
access, install, use, operate, execute and display the object code copy
(only) of EDS Software at All North American Sites and elsewhere in North
America, but such license applies only as reasonably required by
Spectradyne in connection with Spectradyne' IS&S operations providing
services for Spectradyne's internal business operations (which operations
may not use the EDS Software to perform services for a third party only),
the operation of the compressed digital video network and CDVRO Systems,
other Spectradyne-owned video programming delivery equipment and other
field services described in this Agreement. Except with regard to
Developed Software to which the license in this Section 11.4 is extended,
the term of the license set forth in this Section 11.4 will commence with
the date on which the EDS Software is installed and will end on the End
Date.
Spectradyne will have no right to transfer or assign its rights in any
such EDS Software without the prior written consent of EDS. In addition,
Spectradyne and EDS will have the following rights and obligations related
to the EDS Software:
(a) Operators. Except with the prior written consent of EDS, which
consent will not be unreasonably withheld or delayed, or to the extent
required by natural disaster or similar emergency, the EDS Software
will not be operated, directly or indirectly, (i) by persons other
than bona fide employees of SPI Holding, Inc., provided such employees
are subject to obligations of confidentiality substantially similar to
those set forth in this Agreement, and bona fide employees of
Spectradyne at a Spectradyne facility or one of Spectradyne Is
customers' facilities or (ii) on hardware that is not under the
control of Spectradyne or EDS.
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(b) Spectradyne Work. Except with the prior written consent of EDS, only
Spectradyne work may be processed using the EDS Software.
(c) Confidentiality of EDS Software. Spectradyne will keep the EDS
Software confidential, will not at any time allow the EDS Software, or
any of the various components thereof or any modifications thereto, to
be used (other than as provided for in this Agreement), disclosed to
any party, sold, licensed, assigned, leased or commercially exploited
or marketed to any third party in any way, with or without charge, by
Spectradyne or its employees or agents and, except to the extent
required for normal operation of the EDS Software as permitted herein
in the day-to-day business operations of Spectradyne, will not permit
the EDS Software to be copied or reproduced, in whole or in part, by
any party under its control (and will use commercially reasonable
efforts to prohibit any party from copying or reproducing the EDS
Software where Spectradyne knows such party is attempting to copy or
reproduce the EDS Software but where such party is not under
Spectradyne's control) at any time.
(d) Irreparable Harm. Spectradyne acknowledges that the EDS Software is
the valuable property of EDS, that violation in any material respect
of any provision of the agreement provided in this Section 11.4 would
cause EDS irreparable injury for which it would have no adequate
remedy at law, and that EDS will be entitled to preliminary and other
injunctive relief against any such violation. Such injunctive relief
is in addition to, and in no way in limitation of, any and all other
remedies or rights which EDS has at law or in equity.
11.5 Software Development. Prior to commencing any requirements definition
phase of a Software development project, Spectradyne and EDS will negotiate
in good faith toward a mutually acceptable definitive written agreement
setting forth the respective rights and obligations of each of the parties
related to such Developed Software. Spectradyne and EDS agree that any
Software developed will be owned by EDS as set forth above, and that such
negotiations will address each party's rights and obligations in the use,
disclosure, commercial exploitation of such developed Software (including
the distribution of any revenue resulting from such commercial exploitation
of the developed Software) and such other matters as Spectradyne and EDS
may mutually agree.
To the extent that (i) EDS develops Software under this Agreement, (ii)
such Developed Software is subject to the license set forth in Section 11.4
above, (iii) such license has not been terminated under Section 11.4 as a
result of Spectradyne's breach of any provision of Section 11.4 and (iv)
EDS has not terminated this Agreement under Article XIII, the royalty-free
license granted to Spectradyne under Section 11.4 will be extended by EDS
past the End Date, without need for any further act by Spectradyne, and
continue indefinitely in full force and effect without regard to any
termination of this Agreement;
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provided, that such license will terminate automatically and without any
further act by EDS if Spectradyne breaches any provision of Section 11.4
after the End Date.
Spectradyne will have no obligation to pay any fee to EDS after the End
Date and will have no right to any Software Maintenance or Software
Enhancements of EDS Software. For so long as the license under Section
11.4 remains in full force and effect, if Spectradyne requests Software
Maintenance or Software Enhancements of Developed Software after the End
Date, EDS will provide such Software Maintenance or Software Enhancements
subject to EDS' then current commercial rates for such Software Maintenance
or Software Enhancements. If EDS ceases or has ceased supporting such
Developed Software, EDS will provide to Spectradyne a copy of the source
code to such Developed Software (but not to any EDS development tools
embedded in Developed Software) and permit Spectradyne to use and modify
such source code solely to maintain such Developed Software. Spectradyne
will have no right to sell, license (other than to an Affiliate under terms
substantially similar to those set forth in Section 11.4) or in any way
commercially exploit any Developed Software, in whole or in part, or any
maintenance or enhancement of or modification to Developed Software,
including such enhancements or modifications as may be developed by
Spectradyne.
11.6 EDS Development Tools. Except to the extent that any intellectual property
described in this Section 11.6 is embedded in, required in the operation of
or otherwise included in EDS Software, in which case the provisions of this
Section 11.6 will be (with regard to such EDS Software) subject to Section
11.4 and Section 11.5, EDS will retain all right, title and interest in and
to any and all Software, Software development tools, know how,
methodologies, processes, technologies or algorithms used in EDS' provision
of services which are based upon trade secrets or proprietary information
of EDS or otherwise owned or licensed by EDS. In addition, all output
(other than data contained in reports generated by EDS at the request of
Spectradyne) from and computer programs generated by EDS' Software
development tools will be deemed proprietary to EDS. Notwithstanding the
provisions of Section 11.4, with the exception of development tools
licensed by Spectradyne from a third party and provided to EDS for use by
EDS in the performance of its obligations under this Agreement, Spectradyne
will have no rights in such EDS development tools.
11.7 Software Modifications. Except under as an Additional Service under
Section 7.1 or as expressly provided in Section 3.3(a)(ii) or Schedule 4.6,
EDS has no obligation to modify, enhance or maintain any Software.
11.8 Confidentiality. Spectradyne and EDS will have the following obligations
with regard to Confidential Information:
(a) "Confidential Information" means the terms and conditions of this
Agreement and that certain Letter of Intent to Al Jerome from J. Keane
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Taylor dated May 19, 1993 and that information which is: (i) written
information received from the other party which is clearly and
prominently marked or identified as confidential and (ii) oral or
visual information which is identified as confidential in writing to
the receiving party within 30 days after disclosure to the receiving
party and which adequately and clearly identifies such visual or oral
information claimed as confidential ("Confidential Information").
(b) Each party will protect Confidential Information received from the
other party, before or after the Effective Date, using the same degree
of care such party uses to protect its own confidential information,
but in no event less than reasonable care.
(c) Each party will use Confidential Information received from the other
party only for the purpose of performing their obligations under this
Agreement.
(d) It will not be a breach of the obligations of this Section 11.8 to
disclose to any arbitrators Confidential Information required to be
disclosed in connection with the conduct of any binding arbitration
proceeding, provided that such disclosure is made pursuant to and in
accordance with the approval and at the direction of a majority of the
arbitrators conducting such arbitration.
(e) Confidential Information will not include information which is (i)
already known by the recipient party without an obligation of
confidentiality, (ii) publicly known through no unauthorized act of
the recipient party, (iii) rightfully received from a third party,
(iv) independently developed by the recipient party without use of the
other party's Confidential Information, (v) disclosed without similar
restrictions to a third party by the party owning the information or
(vi) approved by the other party for disclosure.
(f) Each party agrees to return any and all of Confidential Information to
its owner upon such owner's request.
(g) If either party is required to disclose any Confidential Information
pursuant to securities laws or any other laws or governmental
regulations, or pursuant to subpoena or other compulsory process, then
the disclosing party will use its best efforts and exercise all rights
available to it (short of risking damages, injunction or contempt
findings) to (i) maintain the confidentiality of the existence, terms
and conditions of this Agreement, (ii) to the extent it may lawfully
do so, inform the other party of any requests for disclosure made
pursuant to the Freedom of Information Act or any other law or
government regulation or of any subpoena or other compulsory process
prior to making such disclosure and (iii) allow the non-disclosing
party to contest
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such request and, if applicable, participate in any resulting
proceedings through counsel of the non-disclosing party's choosing and
at the non-disclosing party's expense.
11.9 Exclusivity. Spectradyne will have the following rights and obligations
with regard to exclusivity:
(a) North American Markets. EDS, and any subsidiary controlled by EDS or
a subsidiary of EDS, will not, after the Effective Date, contract
with a third party, or itself act, to install, operate or manage a
compressed digital video network in the continental United States,
Alaska, Hawaii, the Virgin Islands, Puerto Rico and Mexico using the
technology to be implemented by EDS under this Agreement or the
Digitally Based Video On Demand System for the purpose of distributing
in-room video entertainment programming or Spectradyne-developed
interactive services to (i) hotels, (ii) prisons, (iii) hospitals,
(iv) nursing homes or supervised retirement facilities or (v) military
installations without Spectradyne's prior written consent in its sole
discretion.
(b) Competitors of Spectradyne. In addition to EDS' obligations under
Section 11.9(a), EDS, and any subsidiary controlled by EDS or a
subsidiary of EDS, will not contract with Lodgenet Entertainment
Corporation, Comsat Video Enterprises Inc., Cable HealthCare
Corporation or On-Command Video Corporation or any entity that EDS
knows is an affiliate of any such company without Spectradyne's prior
written consent in its sole discretion.
(c) Time Share Properties and International Markets. The parties intend
that the relationship described in this Agreement will be expanded to
international markets (in addition to Canada, Mexico, Puerto Rico and
the Virgin Islands mentioned above). Spectradyne understands that the
Communications Industry Group (a division of EDS, "CIG") may not know
of, prevent or effect transactions entered into by other business
units of EDS outside of North America. However, CIG will not
(i) contract with a third party, or itself act, to install, operate
or manage a compressed digital video network outside of North
America using the technology to be implemented by EDS under this
Agreement or the Digitally Based Video On Demand System for the
purpose of distributing in-room video entertainment programming
or Spectradyne developed interactive services to (i) hotels, (ii)
prisons, (iii) hospitals, (iv) nursing homes or supervised
retirement facilities, (v) military installations or (vi) time-
share properties (inside or outside of North America) without
Spectradyne's prior written consent in its sole discretion or
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(ii) provide the technology to be implemented by EDS under this
Agreement or the Digitally Based Video On Demand System to any
third party or to another business unit within EDS so that such
business unit may use such technology or may provide such
technology to a third party, in either case for the purpose of
distributing in-room video entertainment programming or
Spectradyne-developed interactive services to (i) hotels, (ii)
prisons, (iii) hospitals, (iv) nursing homes or supervised
retirement facilities, (v) military installations or (vi) time-
share properties (inside or outside of North America) without
Spectradyne's prior written consent in its sole discretion.
(d) Obligation to Notify Spectradyne. EDS will use commercially
reasonable efforts to notify Spectradyne of any agreement that any
division of EDS other than CIG enters with a third party to provide
such technology or services within five days after the President of
CIG learns of such agreement.
EDS will use commercially reasonable efforts to provide Spectradyne
with written notice 90 days prior to entering into a binding agreement
with any third party for the installation, management or operation of
a compressed digital video network used to distribute video
entertainment programming or Spectradyne-developed interactive
services, other than those described in (i) through (v) immediately
above. In addition to the notice requirement mentioned immediately
above in this paragraph, CIG will use commercially reasonable efforts
to explore opportunities with such third party which would allow
Spectradyne to commercially exploit Spectradyne's products and
services with or through such relationship between EDS and such third
party, including seeking a waiver under any applicable confidentiality
agreement to permit such notice to Spectradyne.
Notwithstanding anything set forth in the immediately preceding two
paragraphs of this Section 11.9, EDS will have no obligation to breach
any obligation of confidentiality or any other contractual obligation
that EDS may have with a third party and EDS will remain free to
market, sell and provide any information technology services to any
other audio-visual service provider, except as listed above, including
without limitation cable companies, phone companies, healthcare
companies, education providers, high density residential areas or any
other provider or market.
ARTICLE XII.
PERFORMANCE REVIEW AND DISPUTE RESOLUTION
12.1 Performance Review. In the event of any dispute or controversy between the
parties of any kind or nature, upon the written request of either party,
each
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of the parties will appoint a designated officer whose task it will be to
meet for the purpose of resolving such dispute or controversy or to
negotiate for an adjustment to any provision of this Agreement needed to
resolve such dispute or controversy. Such officers will discuss the
dispute or controversy and negotiate in good faith in an effort to resolve
the dispute or controversy or renegotiate the applicable section or
provision of this Agreement without the necessity of any formal proceeding
relating thereto. No formal proceedings for the judicial or arbitrational
resolution of such dispute or controversy may be commenced until either or
both of the designated officers conclude in good faith that amicable
resolution through continued negotiation of the matter in issue is not
likely to occur.
12.2 Dispute Resolution. Except for those disputes where injunctive relief is
the desired remedy and except for patent, trademark, trade secret or
copyright claims brought by third parties, any dispute, controversy or
claim arising out of or related to this Agreement, or the creation,
validity, interpretation, breach or termination of this Agreement, and not
resolved to the satisfaction of the parties under Section 12.1 will be
settled by binding arbitration governed by the Commercial Arbitration Rules
of the American Arbitration Association. Any arbitration will be commenced
and conducted using the following procedure:
(a) Either party may demand arbitration in writing, stating the nature of
the controversy and naming the arbitrator selected by it.
(b) Within 15 days after such demand, the other party will name its
arbitrator, and the two named arbitrators will, within 15 days
thereafter, select the third arbitrator to serve on the arbitration
panel. The two arbitrators named by the parties may have prior
relationships with the naming party, which in a judicial setting would
be considered a conflict of interest. The third arbitrator, selected
by the first two, should be a neutral participant with no prior
working relationship with either party. If the first 2 arbitrators
are unable to reach agreement as to the third arbitrator within such
15-Day period for any reason, then either of the first 2 arbitrators
will request the American Arbitration Association to select a third
arbitrator meeting the criteria for such arbitrator set forth above in
this Section 12. 2 (b).
(c) The arbitration proceeding will be held in Dallas, Texas.
(d) Each party will bear its own arbitration costs and expenses; provided,
however, that the arbitrators may modify the allocation of fees, costs
and expenses in the award in those cases where fairness dictates other
than an equal allocation between the parties.
(e) The arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing fair, speedy and cost
effective
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resolution of disputes. The arbitrators will reference the rules of
evidence of the Federal Rules of Civil Procedure then in effect in
setting the direction of such discovery.
(f) The award will be final and binding on the parties, and judgment on
the award may be entered in and enforced by any court of competent
jurisdiction.
(g) EDS will continue to provide the Information Technology Services
(including without limitation any services related to the development
of the Digitally Based Video On Demand System) during the arbitration
proceedings and, except for disputed payments that are the subject of
the proceeding (which will be paid into escrow as set forth below),
Spectradyne will continue to make payments to EDS (including without
limitation the payment of any applicable charges for any services
related to the development of the Digitally Based Video On Demand
System) under the terms and conditions of this Agreement during such
period from the date the notice of arbitration is served on one party
until the date of any final award. Any disputed payments from either
party will be paid into an escrow account, structured by agreement of
the parties, or as ordered by the arbitrators if agreement cannot be
reached, for distribution in accordance with the arbitrators' award.
ARTICLE XIII.
TERMINATION
13.1 Termination for Cause. Spectradyne and EDS will have the following rights
in the event of a termination for cause:
(a) Termination by EDS. If (i) Spectradyne materially defaults in any of
its duties or obligations under this Agreement (other than a default
in payment to EDS) , and such default is not cured within 30 days
after written notice specifying the default is delivered to
Spectradyne (or, if such default cannot reasonably be cured within
such 30 days, Spectradyne either fails to commence curing such default
within such 30 days or thereafter fails to proceed diligently to
complete such cure, but in any event if such default is not cured
within 60 days after delivery of such notice) or (ii) SPI Holding,
Inc. materially defaults in any of its duties or obligations under the
Financial Agreement, then, in addition to any claim for damages or
other relief, EDS may terminate this Agreement without penalty to EDS
by delivering to Spectradyne a second written notice specifying the
date of such termination.
(b) Termination by Spectradyne. If EDS materially defaults in any of its
duties or obligations under this Agreement, including without
limitation (i) EDS' failure to deliver and install in substantial
compliance with the Transition Plan compressed digital video network
Hardware and
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Software in accordance with the functional specifications for such
Hardware and Software, (ii) EDS' failure to deliver to Spectradyne the
Digitally Based Video on Demand System within 90 days of the due date
specified therefor in Section 1.4(b) at a cost to Spectradyne not
exceeding the prices set forth in Section 1.4(c). (a "Phase II
Default") or (iii) any other material breach by EDS of this Agreement
or of the performance criteria set forth therein, and such default is
not cured within 30 days after written notice specifying the default
is delivered to EDS (or, if such default cannot reasonably be cured
within such 30 days, EDS fails to commence curing such default during
such 30 days or thereafter fails to proceed diligently to complete
such cure, but in any event if such default is not cured within 60
days (90 days in the case of a Phase II Default) after delivery of
such notice), then, in addition to any claim for damages or other
relief, Spectradyne may terminate this Agreement without penalty by
delivering to EDS a second written notice specifying the date of such
termination. In such event there will be no cross-acceleration of any
obligation of Spectradyne or any Spectradyne Affiliate under the
Financial Agreement, and the obligations of EDS under the first three
paragraphs of Section 11.9 will survive for a period of two years from
the effective date of such termination.
13.2 Termination for Spectradyne's Convenience. Spectradyne and EDS agree that
Spectradyne will have the right to terminate this Agreement for
Spectradyne's convenience by providing written notice to EDS on the third,
sixth and eighth anniversary of the Effective Date. Any such termination
will be effective at least six months after such anniversary on which EDS
receives such written notice. Within 30 days of receipt of such written
notice of such termination, EDS will present to Spectradyne a detailed,
auditable list of the expenses described in Section 13.8 (a) to which EDS
reasonably believes it will be subject as a result of such termination and
such expenses will be paid by Spectradyne. In addition to such expenses,
any such termination will be subject to the payment of the Termination Fee
under Section 13.8 (b). Within 30 days after Spectradyne's delivery to EDS
of notice of termination under this Section 13.2, Spectradyne will present
to EDS a detailed, auditable list of credits that Spectradyne reasonably
believes have accrued during the term of this Agreement but which have not
yet been applied against any EDS charges. Such credits will be applied
against any sums due to EDS. Any net credit will be offset against the
next sums due, if any, under the Financial Agreement or the PCFM, or if
there are no such sums due, will be paid in cash to Spectradyne. Upon the
termination of this Agreement under this Section 13.2 or Section 13.1
(a), EDS may, in its sole discretion, accelerate the obligations of
Spectradyne and/or any Spectradyne Affiliate under the Financial Agreement
and, without limiting the foregoing, all sums owed by Spectradyne and/or
any Spectradyne Affiliate under such Financial Agreement will be due and
payable on the effective date of any such termination.
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13.3 Termination for Reaching Limitation of Liability. If either party is
required to pay damages to the other that in the aggregate would equal or
exceed the limitation set forth in Section 14.4(d) or Section 14.4(e), the
injured party may, in its sole discretion and at such time as the
limitation is reached or at any time thereafter, terminate this Agreement
without penalty to the injured party. Any such termination will be subject
to the provisions of Section 13.6, except that, to the extent that
Spectradyne's reaching the limitation of liability constitutes a breach of
this Agreement, EDS will not be excused under Section 13.6 from performing
the Termination Transition; provided, however, that EDS will have no
obligation to perform the Termination Transition if Spectradyne does not
fulfill its payment obligations under Section 13.6, in which case EDS will
give written notice to Spectradyne no less than 30 days prior to the
effective date of such termination, and this Agreement will terminate as of
the date set forth in such notice.
13.4 Termination for Nonpayment. If Spectradyne defaults in the payment when
due of any undisputed amount or, if such amount is disputed, escrowed
amount due to EDS hereunder (including any obligation to place such
disputed amount into escrow) and does not cure such default within 10
Business Days after being given written notice of such default, then EDS
may, by giving written notice thereof to Spectradyne and the lender listed
in Section 15.5 terminate this Agreement as of the date specified in such
notice of termination.
In addition to the rights to cure set forth above in this Section 13.4, any
bank, lending institution or other lender described in Section 1.3 (bn),
or any successor to such bank, lending institution or other lender, may
cure any default under this Section 13.4. If Spectradyne notifies EDS
within three Business Days after the date of EDS' notice of default that
Spectradyne is in active discussions with such a bank, lending institution
or other lender, EDS will extend the cure period set forth above in this
Section 13.4 to 15-Business Days. If such bank, lending institution or
other lender cures such default within such 15-Business Day period, EDS
will, notwithstanding the provisions of Section 13.1(a) with regard to such
default, continue to perform its obligations under this Agreement without
interruption, which continuation will not be construed as a waiver by EDS
of any other right under this Agreement.
13.5 Termination for Insolvency. If at any time either party hereto is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver, conservator
or similar officer for it, makes an assignment for the benefit of all or
substantially all of its creditors or enters into an agreement for the
composition, extension or readjustment of all or substantially all of its
obligations, then the liquidator, trustee, receiver, conservator, new
owner, manager or other agent or representative of such party will have 30
days to notify the other party that it is terminating this Agreement
effective as of 30 days after the other party's receipt of the notice of
termination.
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13.6 Transition Upon Termination. In connection with any termination of this
Agreement where Spectradyne is not in breach of this Agreement, EDS will
comply with Spectradyne's reasonable directions, if any, to effect the
orderly transition and migration to Spectradyne or its designee from EDS of
the Information Technology Services then being performed or which EDS is
then responsible for performing under this Agreement, including without
limitation the transition actions described on Schedule 13.6. (All such
efforts described in the first two sentences of this Section 13.6 are
referred to as the "Termination Transition".) In addition, EDS will comply
with Spectradyne's reasonable directions to effect the transfer of
(a) title to all Hardware to Spectradyne for which Spectradyne has paid in
full, including and limited to
(i) Hardware which has been purchased by Spectradyne under this
Agreement,
(ii) Personal Computer Functionality provided by EDS under this
Agreement,
(iii) Personal Computer Functionality provided by EDS under the PCFM
and
(iv) CDVRO Systems provided by EDS under this Agreement, upon EDS'
receipt of payment in full;
(b) all lease agreements (including without limitation any transponder
lease) desired by Spectradyne in order to continue all Information
Technology Services and
(c) license rights to Vendor Software and EDS Software desired by
Spectradyne for such purposes.
EDS will continue to provide Information Technology Services, with no
increase to the Base Service Charge, in connection with the Termination
Transition for a period designated by Spectradyne, which period will be not
less than six months. The transition period will commence with the notice
of termination. EDS will not be obligated to perform the Termination
Transition services unless EDS receives, in addition to the Termination
Fee, Base Service Charges each month for the Termination Transition.
Specifically, EDS will, within 30 days after receipt of Spectradyne's
written request, develop and submit to Spectradyne a transition plan
setting forth the respective tasks to be accomplished by each party in
connection with the orderly transition and a schedule pursuant to which the
tasks are to be completed.
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If EDS is required to perform transition obligations under this Section
13.6, Spectradyne and EDS agree that the effective date of the termination
of this Agreement is the date set forth in the termination transition plan.
If this Agreement is terminated by Spectradyne under Section 13.1(b), then
EDS' continued participation in the Termination Transition will be at
Spectradyne's option.
13.7 Rights Upon Termination. The termination or expiration of this Agreement
will not relieve Spectradyne from paying for any Information Technology
Services performed, or information technology products provided, prior to
the End Date or for any additional amounts which may be due under this
Agreement.
13.8 Termination Fee. In addition to the charges for the Termination
Transition, if Spectradyne terminates this Agreement under Section 13.2
prior to the expiration date, Spectradyne will pay EDS:
(a) All costs and expenses arising out of or related to the termination,
including without limitation all capital costs not yet recovered by
EDS, all transponder costs, all employee relocation and other employee
related costs and
(b) The product of [ ] multiplied times the Base Service Charge for all
remaining months in the term (meaning all months between the effective
date of such termination and the tenth anniversary of the Effective
Date) of this Agreement (the "Termination Fee").
EDS will be required to use commercially reasonable efforts to mitigate
those costs and expenses described in Section 13.8(a).
ARTICLE XIV.
INDEMNITIES AND LIABILITIES
14.1 Indemnification. The indemnities set forth in this Section 14.1 will not
apply unless the party claiming indemnification complies with the
provisions of Section 14.2, and then will apply to the extent set forth in
Section 14-2.
(a) Intellectual Property Indemnity. EDS and Spectradyne each will
indemnify, defend and hold harmless the other and each Affiliate of
the other from any and all claims, actions, damages, liabilities,
costs and expenses, including reasonable attorneys, fees and expenses,
arising out of, under, or in connection with any claims of
misappropriation of a trade secret, or any claims of infringement of
any United States letters patent, or any copyright, trademark, service
mark, trade name or similar proprietary rights conferred by contract
or by common law or by any law of the United States or any state
alleged to have occurred
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because of the Hardware or Software provided by or through the
indemnitor.
(b) Cross Indemnification. EDS and Spectradyne each agree to indemnify,
defend and hold harmless the other from any and all damages,
liabilities, costs and expenses, including without limitation
reasonable attorneys' fees and expenses, arising out of, under or in
connection with any claim, demand, charge, action, cause of action, or
other proceeding (i) for rent, other payments required under leases or
utilities at any location where the indemnitor is financially
responsible under this Agreement for such rent, such other payments or
utilities, (ii) resulting from an act or omission of the indemnitor in
its capacity as an employer of a person and arising out of or relating
to (1) federal, state or other laws or regulations for the protection
of persons who are members of a protected class or category of
persons, (2) sexual discrimination or harassment, (3) work related
injury or death, (4) accrued employee benefits not expressly assumed
by the indemnitee and (5) any other aspect of the employment
relationship or its termination (including without limitation claims
for breach of an express or implied contract of employment and claims
relating to or arising out of any relationship between Spectradyne and
a collective bargaining unit or representative) and which, in all such
cases, arose when the person asserting the claim, demand, charge,
action, cause of action or other proceeding was or purported to be an
employee of the indemnitor or (iii) for license fees payable to a
Vendor with respect to Software licensed by a Vendor to the
indemnitor.
(c) Programming Indemnity. Spectradyne will indemnify, defend and hold
harmless EDS and each Affiliate of EDS from any and all claims,
actions, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses, arising out of, under, or in
connection with the Spectradyne communications networks, Spectradyne
Programming or other services of Spectradyne, including but not
limited to, libel, slander, invasion of privacy, invasion or
alteration of private records or data, or other claims arising from,
relating to or based upon the Spectradyne communications networks,
Spectradyne Programming or other services of Spectradyne.
(d) Indemnifications Related to Hardware, Software and Data. In addition
to their obligations under Section 14.1(a), Section 14.1(b) and
Section 14.1(c), Spectradyne and EDS agree to indemnify each other as
follows with regard to the Hardware, Software and data provided,
assigned or transferred to EDS by Spectradyne under this Agreement:
(ii) Spectradyne agrees to indemnify, defend and hold EDS harmless
from any and all claims, actions, litigation, damages,
liabilities, costs and expenses, including without limitation
reasonable
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attorneys' fees and expenses, arising out of or related to any
Hardware, Software or data provided, assigned or transferred by
Spectradyne to EDS under this Agreement that relates to or arises
out of rights, facts, circumstances, events or obligations
existing on or before the date on which such Hardware, Software
or data was provided to EDS. This indemnification includes
without limitation any costs related to the replacement of
Hardware or Software that can no longer be used by EDS as a
result of litigation between Spectradyne and a third party as
EDS, in its sole discretion, determines.
(ii) EDS agrees to indemnify, defend and hold Spectradyne harmless
from any and all claims, actions, litigation, damages,
liabilities, costs and expenses, including without limitation
reasonable attorneys' fees and expenses, arising out of any
litigation related to any Hardware, Software or data provided,
assigned or transferred by Spectradyne to EDS under this
Agreement, which relates to or arises out of rights, facts,
circumstances, events or obligations existing after the date on
which such Hardware, Software or data was provided to EDS.
14.2 Indemnification Procedures.
(a) Notice and Control. The indemnification obligations set forth in
Section 14.1 will not apply unless the party claiming indemnification:
(i) notifies the other promptly of any matters in respect of which
the indemnity may apply and of which the notifying party has
knowledge, in order to allow the indemnitor the opportunity to
investigate and defend the matter, provided, however, that
failure to so notify will only relieve the indemnitor of its
obligations under this Article XIV if and to the extent that the
indemnitor is prejudiced thereby; and
(ii) gives the other full opportunity to control the response thereto
and the defense thereof, including without limitation, any
agreement relating to the settlement thereof, provided however,
that each indemnitee (A) may have the right to participate in any
legal proceeding to contest and defend in its own name a claim
for indemnification involving a third party and to be represented
by legal counsel of its choosing, all at indemnitee's cost and
expense, and (B) will approve in its sole discretion any
settlement of a claim that either contemplates an admission of
error on behalf of the indemnitee or obligates the indemnitee to
do or not do any act other than the payment of money to be paid
by the indemnitor.
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(b) Settlement. The indemnitor will not be responsible for any settlement
or compromise made without its prior written consent. Subject to the
last sentence of Section 14(a), the indemnitor agrees to cooperate in
good faith with the indemnitor at the request and expense of the
indemnitor.
14.3 Risk of Loss. If any CDVRO System is lost or damaged as a result of any
one of the reasons set forth in Section 3 of Schedule 6.6, then Spectradyne
will be responsible for the repair or replacement of such CDVRO System as
set forth in Section 3 of Schedule 6.6. Spectradyne will bear all risk of
any and all damages, destruction, theft or other loss to the On-Site
System, except to the extent such damages or destruction results from
negligent or wilful damage or destruction by EDS, its employees, agents or
contractors.
14.4 Liquidated Damages and Limitation of Liability. If either party is held
liable to the other for any matter arising out of, under or in connection
with this Agreement, or any provision of this Agreement, whether based on
an action or claim in contract, equity, negligence, intended conduct, tort
or otherwise, the amount of damages recoverable against each party will be
limited and liquidated as set forth below:
(a) Liquidated Damages Related to Facilities Management Services. If, as
a result of any act or omission of EDS, no end user can access or use
any of the applications that run on the Data General computer used by
Spectradyne on the Execution Date or such successor Hardware as
Spectradyne and EDS may mutually agree (the "Data General Hardware")
for seven consecutive days, then EDS will pay liquidated damages in an
amount equal to $50,000 per day beginning with the eighth day and for
each day thereafter during which no end user can access or use any of
the applications that run on the Data General Hardware. Spectradyne
and EDS further agree that, except for Spectradyne's right to
terminate this Agreement under Section 13.1(b) or Section 13.3, the
payment of such damages constitutes Spectradyne's sole and exclusive
remedy for any and all claims arising out of the failure described in
this Section 14.4(a).
(b) Liquidated Damages Related to Network Services. If EDS is required to
pay liquidated damages under Section 5 (a) of Schedule 5.7, then EDS
will pay liquidated damages in an amount equal to $16,500 divided by 8
for each hour that any channel is below the number of hours of uptime
required under Section 5 (a) of Schedule 5.7. If EDS is required to
pay liquidated damages under Section 5 (b) of Schedule 5.7, then EDS
will pay liquidated damages in an amount equal to $16,500 divided by
700,000 times the number of rooms affected by the Spectradyne
Installation Site divided by 8 for each hour that any channel is below
the number of hours of uptime required under Section 5 (b) of Schedule
5.7. Spectradyne and EDS further agree that, except for Spectradyne's
right to terminate this Agreement under Section 13.1(b) or Section
13.3,
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the payment of such damages constitutes Spectradyne's sole and
exclusive remedy for any and all claims arising out of the failure
described in this Section 14.4(b).
(c) Liquidated Damages Related to Field Services. If EDS is required to
pay liquidated damages under Section 1 of Schedule 6.8, then EDS will
pay liquidated damages in an amount equal to $1,500 per affected
hotel site for each such site below the number of sites required under
Section 1 of Section 6.8. Spectradyne and EDS further agree that,
except for Spectradyne's right to terminate this Agreement under
Section 13.1(b) or Section 13.3, the payment of such damages
constitutes Spectradyne's sole and exclusive remedy for any and all
claims arising out of the failure described in this Section 14.4(c).
(d) Liquidated Damages Related to Network Failure and EDS Failure to
Perform EDS' Obligations Under the Disaster Recovery Plan.
Spectradyne and EDS agree that if
(i) the network (meaning for the purposes of, this Section 14.4
the uplink facility, the leased satellite or the leased
transponder) is unavailable for eight or more consecutive hours
and
(ii) EDS fails to perform EDS' obligations under the disaster recovery
plan mutually approved by EDS and Spectradyne,
then EDS will pay Spectradyne an amount equal to $16,500 per hour for
each hour (and any remaining part of an hour) that the network is
unavailable commencing with the time of the failure of the uplink
(meaning for the purposes of this Section 14.4(d) the indoor equipment
and the outdoor equipment), leased transponder or leased satellite, as
the case may be, and until such failure is repaired. Spectradyne and
EDS agree that the actual damages incurred by Spectradyne would be
difficult to determine and that such amount constitutes a liquidated
damage and not a penalty.
If any such network failure continues for a period of more than 30
days, Spectradyne will notify EDS in writing of those activities which
Spectradyne desires that EDS stop performing and will designate in
such notice the date on which Spectradyne desires that EDS stop
performing such activities. Spectradyne will have no obligation to
pay EDS for any such suspended activities. If Spectradyne notifies
EDS in writing of Spectradyne's desire that EDS resume such
activities, Spectradyne's obligation to pay for such activities will
contemporaneously resume. Spectradyne and EDS further agree that,
except for Spectradyne's right to terminate this Agreement under
Section 13.1(b) or Section 13.3, the payment of such damages
constitutes
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Spectradyne's sole and exclusive remedy for any and all claims arising
out of the failure described in this Section 14.4(d).
(e) Liquidated Damage Related to Delay in Development of the Digitally
Based Video On Demand System. Spectradyne and EDS agree that if
(i) Spectradyne has provided all functional requirements,
system requirements, system specifications, hardware
specifications, software specifications and user interface
specifications for Digitally Based Video on Demand System,
(ii) Spectradyne and EDS mutually agree on such specifications
described in (i) above,
(iii) Spectradyne provides to EDS all approvals within all mutually
agreed time frames,
(iv) Spectradyne does not change the functionality or specifications
described in (i) above after such functionality or
specifications have been mutually agreed to by Spectradyne and
EDS and
(v) EDS fails to deliver an operational Digitally Based Video On
Demand System on the Delivery Date or if Spectradyne fails in
the performance of one or more of its obligations under (i)
through (iv) above and Spectradyne and EDS mutually agree on a
revised delivery date, such other date as Spectradyne and EDS
may mutually agree,
then EDS will pay to Spectradyne liquidated damages as set forth
below.
Spectradyne and EDS agree that EDS will only be liable for any failure
to deliver an operational Digitally Based Video On Demand System if
all conditions set forth in Section 14.4 (e) (i) - (v) above are met
and that such liability will be as set forth below in Section 14.4(e)
(w) - (z). The amount of such liquidated damage will equal
(w) $100,000 if EDS delivers the Digitally Based Video On Demand
System between 1 and 30 days after the Delivery Date,
(x) the amount set forth in (w) above plus $250,000 if EDS delivers
the Digitally Based Video On Demand System between 31 and 60 days
after the Delivery Date,
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(y) the amount set forth in (x) above plus $600,000 if EDS delivers
the Digitally Based Video On Demand System between 61 and 90 days
after the Delivery Date or
(z) the amount set forth in (y) above and EDS will pay all amounts
related to the completion of development of the Digitally Based
Video On Demand System, including any third party charges which
EDS in its sole discretion incurs, if EDS delivers the Digitally
Based Video On Demand System more than 90 days after the Delivery
Date.
Spectradyne and EDS agree that the actual damages incurred by
Spectradyne would be difficult to determine and that such amount
constitutes a liquidated damage and not a penalty. Spectradyne and
EDS further agree that, except for Spectradyne's right to terminate
this Agreement under Section 13.1(b) or Section 13.3, the payment of
such damages constitutes Spectradyne's sole and exclusive remedy for
any and all claims arising out of the failure described in this
Section 14.4(e).
(f) Limitation of Liability for Failure to Provide Digitally Based Video
On Demand System at or Less Than the Amount Set Forth in Section 1.4
(c). If EDS fails to deliver the hardware (including the operating
system software for such hardware) for the Digitally Based Video On
Demand System at or less than the price set forth in Section 1.4 (c),
and if Spectradyne does not elect to terminate this Agreement under
Section 13.1 (b) as a result of such failure, then EDS will in
addition to the amounts set forth in Section 14.4(e) above, pay or
assume responsibility for paying all such amounts between the price
set forth in Section 1.4(c) and the price at which the Digitally Based
Video On Demand System is provided to Spectradyne. Spectradyne and
EDS further agree that, except for Spectradyne's right to terminate
this Agreement under Section 13.1(b) or Section 13.3, the payment of
such damages constitutes Spectradyne's sole and exclusive remedy for
any and all claims arising out of the failure described in this
Section 14.4(f).
(g) Limitation of Liability for Certain Claims. Except for
(i) claims under Section 14.4 (d), Section 14.4 (e), and Section
14.4(f) and
(ii) for claims where EDS commits any act, or fails to commit an act,
and such act or failure to act is deemed to be wilful tortious
misconduct or reckless tortious misconduct, if EDS is held liable
to Spectradyne for any matter arising out of, under or in
connection with this Agreement, or any provision of this
Agreement, whether based on an action or claim in contract,
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equity, negligence, intended conduct, tort or otherwise, the
amount of damages recoverable against EDS for all events, acts or
omissions will not exceed in the aggregate $8,000,000. Except as
set forth in Section 14.4(a), Section 14.4(b), Section 14.4(c),
Section 14.4(d), Section 14.4(e), and Section 14.4(f) above, in
no event will the measure of damages (other than liquidated
damages) payable by EDS include, nor will EDS be liable for, any
amounts for loss of income, data, prof it or savings or indirect,
incidental, consequential or punitive damages of any party,
including third parties.
(h) Limitations. The total amount of all damages for all events, acts or
omissions recoverable against either party, including without
limitation all claims against EDS under Section 14.4 (a), Section 14.4
(b), Section 14.4 (c), Section 14.4 (d), Section 14.4 (e), Section
14.4 (f), Section 14.4 (cr), and Section 14.4 (h) and wilful tortious
misconduct or reckless tortious misconduct and excluding any payment
obligation for which Spectradyne may be liable, will not exceed in the
aggregate $30,000,000. Except as set forth in Section 14.4 (a),
Section 14.4 (b), Section 14.4 (c), Section 14.4 (d), and Section
14.4(e) above, in no event will the measure of damages (other than
liquidated damages) payable by either party include, nor will either
party be liable for, any amounts for loss of income, data, profit or
savings or indirect, incidental, consequential or punitive damages of
any party, including third parties, without limiting the survivability
of any of the provisions of this Agreement, the provisions of this
Section 14.4 will survive the expiration or termination of this
Agreement for any reason.
14.5 Contractual Limitation on Actions. No claim or demand for arbitration
or cause of action which arose out of an event or events which occurred
more than three years prior to the filing of a demand for arbitration or
suit alleging a claim or cause of action may be asserted by either party
against the other party.
ARTICLE XV.
MISCELLANEOUS
15.1 Relationship of the Parties. Notwithstanding anything to the contrary in
this Agreement, EDS will act only as an independent contractor and under no
circumstances will EDS be deemed to be in any relationship with Spectradyne
carrying with it fiduciary or trust responsibilities, whether through
partnership or otherwise. EDS has the sole right and obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed the day-to-day work to be performed by EDS under this Agreement
unless otherwise provided in this Agreement or agreed by the parties in
writing.
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15.2 Excusable Delays. Each party is excused from performing its obligations
(other than obligations to make payments and the obligations under the
Disaster Recovery Plan) for the time and to the extent it is prevented from
performance by delays in performance by the other or third parties (other
than subcontractors to EDS performing Field Services for whose acts EDS
will remain liable to Spectradyne as if such acts, omissions or delays were
those of EDS itself), or by a cause beyond its reasonable control, such as
but not limited to, acts of God, war, civil disturbance, court order or a
labor dispute. While delays caused by Vendors are excused under this
Section 15.2, EDS will use commercially reasonable efforts to have
alternative sources from which to procure Hardware and Vendor Software,
except that any such source for Vendor Hardware and Vendor Software
provided to EDS by Compression Labs, Inc. will require a migration path and
additional delay, and EDS will pass on or assign to Spectradyne any right
that EDS has against such Vendor for such delay that EDS is contractually
permitted to pass on or assign.
Delays in performance caused by failures or fluctuations in electrical
power or equipment or services necessary for performance that are not under
the control of the performing party, such as but not limited to,
telecommunications equipment or services, are considered excusable delays.
Excusable delays are not defaults in performance and are not grounds for
termination for cause.
In addition, EDS will be excused from all responsibility or liability,
other than with respect to EDS' obligations under the Disaster Recovery
Plan, for any failure to comply with performance criteria if, and to the
extent that, such failure is as a result of:
(a) transmission difficulties caused by adverse weather or atmospheric
conditions, including but not limited to, sun outages, rain fade, ice
freeze and snow accumulation; provided, however, the Customer
Assistance Center will advise the customers of Spectradyne reporting
trouble, where appropriate, that may be related to such transmission
difficulties,
(b) operation or performance of Hardware or services not provided by or
through EDS (except for maintained Spectradyne Hardware) including but
not limited to,
(c) Hardware or Software that has been improperly tested by Spectradyne or
that has been subjected to unusual physical or electrical stress or
(d) any one of the reasons set forth in Section 3 of Schedule 6.6.
15.3 No Third Party Beneficiary. Nothing in this Agreement may be relied upon
or will benefit any party other than Spectradyne and EDS.
15.4 Public Disclosures. Except as provided in Section 11.8(g), all media
releases, public announcements and public disclosures by either party or
its employees,
57
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agents or representatives relating to this Agreement, the Financial
Agreement, the PCFM or the subject matter of any of such agreements,
excluding any announcement beyond the control of the disclosing party, will
be approved by the non-disclosing party in writing prior to release.
15.5 Notices. Notices required or permitted under this Agreement will be in
writing and deemed delivered (a) on the date of actual receipt if delivered
by mail, first class, postage prepaid, (b) when received if delivered by
hand or courier service or (c) when confirmed if transmitted by telegraph,
telex, telecopier or facsimile. The addresses of the parties, which may be
changed with written notice, are:
If to EDS, to:
Electronic Data Systems Corporation
5400 Legacy Drive
Plano, Texas 75024
Attention: President, Visual Communications Division
Telecopy: (214) 605-8341
With a copy (not constituting notice) to:
Electronic Data Systems Corporation
5400 Legacy Drive, H3-3A-05
Plano, Texas 75024
Attention: General Counsel
Telecopy: (214) 605-5617
If to Spectradyne, to:
Spectradyne, Inc.
1501 North Plano Road
Richardson, Texas 75081
Attention: Chief Executive Officer
Telecopy: (214) 301-9234
With a copy (not constituting notice) to:
Spectradyne, Inc.
1501 North Plano Road
Richardson, Texas 75081
Attention: General Counsel
Telecopy: (214) 301-9234
with a copy to (not constituting notice):
Williams & Connolly
725 12th Street, N.W.
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Washington, D.C. 20005
Attention: Jerry L. Shulman
Telecopy: (202) 434-5029
And, with regard to events of default for which EDS issues notice of
termination under Section 13.4 to Spectradyne, to:
Wells Fargo Bank, N.A.
111 Sutter Street
17th Floor
San Francisco, CA 94104
Attention: Christine C. Rotter Vice President
15.6 Approvals and Similar Actions. Except where such action is to be taken in
the sole discrete on of a party, where approval, acceptance, consent or
similar action is required or requested of a party, such action will not be
unreasonably withheld, delayed or conditioned.
15.7 Subcontracting. EDS may subcontract Information Technology Services
subject to the following:
(a) Transponder Services. EDS will use commercially reasonable efforts to
obtain provisions in any agreement between EDS and the applicable
Vendor of transponder services that will (i) permit an unconditional
assignment of all of EDS' rights and obligations under such agreement
from EDS to Spectradyne and (ii) allow EDS to unconditionally
terminate such agreement for any reason upon EDS' receipt of a written
request from Spectradyne directing EDS to terminate such agreement
(which notice will include a statement of the mutually agreed rights
and obligations of Spectradyne and EDS related to the ongoing
relationship between Spectradyne and EDS). If EDS is unable to obtain
the right to assign mentioned immediately above in this paragraph, EDS
will continue providing transponder services to Spectradyne under the
same terms, conditions and for the same charges as are set forth in
this Agreement for the remainder of the transponder lease.
(b) Subcontracting of Field Services. EDS may subcontract any of the
Field Services provided to Spectradyne under this Agreement, but such
subcontract will not relieve EDS from any of its obligations to
Spectradyne under this Agreement. Without limiting EDS' right to
subcontract set forth above, EDS will not assign all or substantially
all of those Field Services which it has assumed from Spectradyne, nor
will EDS assign any of such Field Services for profit, in each case
without the prior written consent of Spectradyne.
In addition to its obligations under Section 11.2, EDS will notify
Spectradyne, and will provide Spectradyne a copy, of any written
notice
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of a subcontractor's intent to terminate a subcontract between EDS and
the subcontractor within five Business Days after EDS receives such
notice from the applicable subcontractor. EDS will use commercially
reasonable efforts to obtain from all subcontractors providing
services to EDS for use in its obligations to Spectradyne a right of
Spectradyne to cure any EDS default giving rise to such termination
and a right of EDS to assign all rights and obligations under such
subcontract (or if the services are rendered under a master agreement
between EDS and such subcontractor, all rights or obligations related
to such services under such master agreement related to Spectradyne)
to Spectradyne. If (i) EDS obtains such right to assign, (ii) either
(A) such subcontractor provides EDS with written notice of its intent
to terminate such subcontract and EDS does not cure the default giving
rise to such termination or (B) this Agreement is terminated other
than as a result of a Spectradyne default and (iii) Spectradyne
provides EDS with written notice of its desire to assume such
obligations, then EDS will comply with the terms and conditions of the
subcontract to effect such assignment of rights and obligations from
EDS to Spectradyne.
(c) Vendor Software. EDS will notify Spectradyne, and will provide
Spectradyne a copy, of any written notice of an intent to terminate a
license between EDS and the Vendor within five Business Days after EDS
receives such notice from the applicable Vendor. EDS will use
commercially reasonable efforts to obtain from all Software Vendors
providing Software to EDS for use in its obligations to Spectradyne a
right of Spectradyne to cure any EDS default giving rise to such
termination and a right of EDS to assign all rights and obligations
under such license (or if the license is under a master license
agreement between EDS and the applicable Vendor, all rights or
obligations under the particular license related to Spectradyne) to
Spectradyne. If (i) EDS obtains such right to assign, (ii) either (A)
such Vendor provides EDS with written notice of its intent to
terminate such license and EDS does not cure the default giving rise
to such termination or (B) this Agreement is terminated other than as
a result of a Spectradyne default and (iii) Spectradyne provides EDS
with written notice of its desire to assume such obligations, then EDS
will comply with the terms and conditions of the license to effect
such assignment of rights and obligations from EDS to Spectradyne.
15.8 Binding Nature and Assignment. This Agreement will be binding on the
parties hereto and their respective successors and assigns, but neither
party may, nor will have the power to, assign this Agreement without the
prior written consent of the other, which consent will not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, EDS will
have the right to subcontract as set forth in Section 15.7.
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15.9 Counterparts. This Agreement may be executed in multiple counterparts,
each of which will be deemed an original and all of which taken together
will constitute one instrument.
15.10 Certain Construction Rules. The article, section and schedule headings and
the table of contents used in this Agreement are for convenience of
reference only and in no way define, limit, extend or describe the scope
or intent OF any provisions hereof. In addition, as used in this
Agreement, unless otherwise expressly stated to the contrary, (a) other
than references to Business Days, all references to days, months or years
are references to calendar days, months or years, (b) all references,
"Sections" and "Articles" are references to Sections of Articles of this
Agreement, (c) all references to "Schedules" are references to Schedules
attached to this Agreement and (d) all uses of "or" include "and/or". To
the extent that there is any conflict between the text of this Agreement
and any Schedule, the text will control, and to the extent that there is
any conflict between the Transition Plan and any of the text of this
Agreement or any other Schedule, such text or Schedule will control.
15.11 Waiver. No delay or omission by either party hereto to exercise any
right or power under this Agreement will impair such right or power or be
construed to be a waiver thereof. A waiver by either party of any covenant
or breach thereof will not be construed to be a waiver of any succeeding
breach thereof or of any other covenant herein contained.
15.12 Governing Law. This Agreement will be construed in accordance with, and
the rights of the parties will be governed by, the internal laws of the
State of Texas applicable to agreements entered into and intended to be
performed within the state, without regard to any otherwise applicable
principles of conflicts of laws.
15.13 Survival of Certain Provisions. The following provisions will survive
any expiration or termination of this Agreement for any reason: Section
1.3, Article VIII, Article IX, Section 11.1, Section 11.2, Section 11.5,
Section 11. 8, Article XII, Section 13.1, Section 13.3, Section 13.4,
Section 13.5, Article XIV and Article XV.
15.14 Entire Agreement. This Agreement, including any Schedules referred to
herein and attached hereto, and all Authorized Field Service Orders,
supersedes all other agreements including without limitation that certain
Phase 0 Services Agreement dated September 9, 1992, that certain
Confidentiality and Non-Disclosure Agreement dated June 12, 1992, and the
Letter of Intent to Al Jerome from J. Keane Taylor dated May 19, 1993 and
constitutes the entire agreement between the parties with respect to the
subject matter of this Agreement. There are no representations,
understandings or agreements relating to this Agreement which are not
fully expressed herein. No other representations, understandings or
arrangements have been made with respect to this Agreement or the
Information Technology
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Services and no future representations, understandings or arrangements will
bind either party until such time as they are reduced to writing and signed
as an amendment to this Agreement. All changes to this Agreement must be
in writing and signed by the party against whom such change would be
enforced. The parties agree that any other terms or conditions included in
any Purchase Orders, quotes, acknowledgements, bills of lading or other
forms utilized or exchanged by the parties will not be incorporated herein
or be binding unless expressly agreed upon in writing by authorized
representatives of the parties.
IN WITNESS WHEREOF, Spectradyne and EDS have caused their duly authorized
officers to execute and deliver this Agreement as of the day and date first set
forth above.
ELECTRONIC DATA SYSTEMS SPECTRADYNE, INC.
CORPORATION
By:__________________________ By:_________________________
Name: J. Keane Taylor Name: Al Jerome
Title: President, Visual Title: President and
Communications Division Chief Executive Officer
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EXHIBIT 10.25
PHASE 2 INFORMATION TECHNOLOGY PRODUCT
AND SERVICE AGREEMENT
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AND
SPECTRADYNE, INC.
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS
ARE INDICATED IN THIS AGREEMENT WITH BRACKETS ([ ]).
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I AGREEMENT, TERM AND DEFINITIONS..................... 1
1.1 Agreement and Term.................................. 1
1.2 Certain Definitions................................. 2
ARTICLE II DEVELOPMENT OF DIGITALLY BASED VIDEO ON
DEMAND SYSTEM....................................... 5
2.1 Digitally Based Video On Demand System Development
Schedule............................................ 5
2.2 Provision of DBVODS Hardware........................ 5
2.3 Development of Software............................. 6
ARTICLE III PROVISION OF PRODUCTS AND SERVICES.................. 6
3.1 Purchase Orders..................................... 6
3.2 Cancellation and Change of Purchase Orders.......... 8
3.3 Inspection, Integration, and Testing................ 8
3.4 Transportation of Products.......................... 8
3.5 Title and Risk of Loss.............................. 8
3.6 Unpacking and Installation.......................... 9
3.7 Acceptance of Products.............................. 9
3.8 On-Site Service..................................... 9
ARTICLE IV PROPRIETARY RIGHTS AND WARRANTIES................... 12
4.1 Vendor Software..................................... 12
4.2 EDS Software........................................ 12
4.3 Spectradyne Software................................ 13
4.4 Cross-License of Patent Rights...................... 13
4.5 Warranties.......................................... 15
4.6 Spectradyne's Remedies.............................. 16
4.7 Exclusivity......................................... 16
ARTICLE V CHARGES AND PAYMENTS TO EDS......................... 16
5.1 Charges for Products and Services................... 16
5.2 Bonus............................................... 17
5.3 Payment............................................. 17
5.4 Taxes............................................... 17
ARTICLE VI DISPUTE RESOLUTION, TERMINATION AND
LIMITATION OF LIABILITY............................. 18
6.1 Dispute Resolution.................................. 18
6.2 Termination for Cause............................... 18
6.3 Termination for Failure to Obtain Unconditional
Approvals or Waivers................................ 18
6.4 Termination for Insolvency and Related Events....... 18
</TABLE>
i
<PAGE>
<TABLE>
<C> <S> <C>
6.5 Termination for Nonpayment.......................... 18
6.6 Proprietary Rights Indemnification.................. 20
6.7 Liquidated Damages.................................. 20
6.8 Limitation of Liability............................. 21
ARTICLE VII MISCELLANEOUS....................................... 21
7.1 Binding Nature and Assignment....................... 21
7.2 Relationship of Parties............................. 21
7.3 Confidentiality and Media Releases.................. 22
7.4 Export.............................................. 22
7.5 Notices............................................. 22
7.6 Force Majeure....................................... 22
7.7 Severability........................................ 22
7.8 Waiver.............................................. 22
7.9 Cumulative Remedies................................. 23
7.10 Counterparts........................................ 23
7.11 Certain Construction Rules.......................... 23
7.12 Survival of Certain Provisions...................... 23
7.13 Governing Law....................................... 24
7.14 No Third Party Beneficiaries........................ 24
7.15 Approvals and Similar Actions....................... 24
7.16 Entire Agreement 24
</TABLE>
ii
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PHASE 2 INFORMATION TECHNOLOGY PRODUCT
AND SERVICE AGREEMENT
THIS PHASE 2 INFORMATION TECHNOLOGY PRODUCT AND SERVICE AGREEMENT (the
"Agreement") is between Spectradyne Inc., a Delaware corporation
("Spectradyne"), and Electronic Data Systems Corporation, a Texas corporation
("EDS") and is effective as of August 27, 1993 (the "Effective Date").'
RECITALS:
Spectradyne and EDS have entered into that certain Agreement for Phase I
Information Technology Services dated July 28, 1993 (the "Phase I Agreement")
under Section 1.4 of which Spectradyne and EDS agreed to continue negotiating in
good faith to reach and enter into an agreement under which EDS will provide a
Digitally Based Video On Demand System.
Spectradyne and EDS agree that EDS will provide such Digitally Based Video
On Demand System, and that Spectradyne will purchase such Digitally Based Video
On Demand System from or through EDS, in accordance with the terms and
conditions set forth in this Agreement.
This Agreement sets forth the terms and conditions under which EDS will
provide, sell, install and maintain Digitally Based Video On Demand Systems to
and for Spectradyne in North America (meaning for the purposes of this Agreement
the continental United States, Alaska, Hawaii, Canada, Mexico, the Virgin
Islands and Puerto Rico (and such other sites within the caribbean as are
covered by the footprint of satellite implemented under the Phase I Agreement))
for the purpose of distributing in-room video entertainment programming and
Spectradyne-developed interactive services, all of which are described below.
In consideration of these premises and the mutual covenants set forth in
this Agreement, and for other good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, Spectradyne and EDS hereby agree to
undertake all rights and obligations under the terms and conditions of this
Agreement.
ARTICLE I
AGREEMENT, TERM AND DEFINITIONS
1.1 Agreement and Term. EDS will (a) provide and sell DBVODS Hardware, (b)
develop and license DBVODS Software to Spectradyne and (c) install and
maintain the Digitally Based Video On Demand System for Spectradyne, and
Spectradyne will obtain such Video On Demand Systems and related services
from EDS all in accordance with the terms and conditions set forth in this
Agreement. The term of this Agreement will commence on the Effective Date
and will continue thereafter until the expiration date set forth in
Section 1.2 of the Phase I Agreement, unless earlier terminated by either
party as set
<PAGE>
forth in Article VI of this Agreement. From the Effective Date until the
expiration date, or such earlier date that this Agreement is terminated as
provided for in Article VI, Spectradyne will use EDS exclusively as its
provider of Digitally Based Video On Demand Systems.
1.2 Certain Definitions. As used in this Agreement, the terms set forth below
have the following respective meanings, and such meanings are equally
applicable to both the singular and plural forms of the terms defined.
(a) "Confidential Information" will have the meaning set forth in Section
7.3 of this Agreement.
(b) "Coverage Time" will have the meaning set forth in Section 3.8(a) of
this Agreement.
(c) "CDVRO System" will have the meaning set forth in Section 3.1(b) of
this Agreement.
(d) "DBVODS Hardware" means that Hardware (as such term is defined in
Section 1.3 (am) of the Phase I Agreement) used in the Digitally Based
Video On Demand System.
(e) "DBVODS Software" means that Vendor Software, EDS Software and any
other Software resident on DBVODS Hardware.
(f) "Delivery Date" means the first anniversary of the Effective Date.
(g) "Digitally Based Video On Demand System" means a system of Hardware
and Software to be provided by EDS under this Agreement that (i) will
store [ ] full length video programs, consisting of [ ] data sets, [ ]
data sets and [ ] data sets, (ii) will provide simultaneous viewing
for [ ] viewers while sustaining a data transmission rate of [ ]
kilobytes per second or greater, (iii) will contain the functionality
set forth in Schedule 1.2(g) and (iv) such other functionality as
Spectradyne and EDS may mutually agree.
(h) "Developed Software" will have the meaning set forth in Section 2.3 of
this Agreement.
(i) "EDS Hardware" means any Hardware developed by EDS and, through a
Vendor, manufactured by EDS and provided to Spectradyne under this
Agreement.
(j) "EDS Software" means that Software developed under Section 2.3 of this
Agreement and any other Software that is owned by EDS and provided to
Spectradyne under this Agreement.
2
<PAGE>
(k) "Employee" means those employees, agents, subcontractors or
representatives of EDS provided or to be provided by EDS to perform
services pursuant to this Agreement.
(l) "Field Service Order" will have the meaning set forth in Section
3.1(b) of this Agreement.
(m) "North America" will have the meaning set forth in the Preamble.
(n) "On-Site Service" means any warranty or maintenance service provided
by EDS under Section 3.8 of this Agreement.
(o) "Other Patent Rights" will have the meaning set forth in Section
4.4(a) of this Agreement.
(p) "Patent Rights" will have the meaning set forth in Section 4.4(a) of
this Agreement.
(q) "Phase I Agreement" means that certain Phase I Information Technology
Services Agreement between Spectradyne and EDS dated as of July 28,
1993.
(r) "Products" means DBVODS Hardware, DBVODS Software and Digitally Based
Video On Demand Systems.
(s) "Purchase Orders" will have the meaning set forth in Section 3.1 of
this Agreement.
(t) "Request" will have the meaning set forth in Section 4.4(b) of this
Agreement.
(u) "Service Request" will have the meaning set forth in Section 3.8 of
this Agreement.
(v) "Services" means, but is not limited to, consulting, development,
installation, integration, maintenance or other services, as the case
may be, provided or to be provided by EDS pursuant to this Agreement.
(w) "Software" means computer programs in object code (except when source
code is expressly called for as set forth herein, in which case the
term "Software" includes source code and object code) together with
interface specifications, input and output formats, program listings,
narrative descriptions, operating instructions and supporting
documentation and will include the tangible media upon which such
programs and documentation are recorded. The term "Software"
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does not include Spectradyne Programming (as such term is defined in
the Phase I Agreement)
(x) "Software Enhancement" means:
(i) any changes or modifications to a function or functions of the
Software that, with respect to EDS Software, existed as of the
Delivery Date, and, with respect to Vendor Software, existed as
of the date the Vendor Software was implemented and
(ii) all of those tasks performed throughout the development cycle
starting with the analysis and requirements definition and
continuing until acceptance by Spectradyne (in accordance with
Schedule 4.9 to the Phase I Agreement), including without
limitation analysis, design, programming and testing, which are
associated with the development of new Software, new Software
modules or new functions for the Software (which new Software
modules and functions did not exist as of the date implemented
with respect to Vendor Software and EDS Software).
(y) "Software Maintenance" means:
(i) with respect to EDS Software, changes or corrections to such EDS
Software required to keep EDS Software operational in the same
manner as it operated on the Delivery Date;
(ii) with respect to Vendor Software for which the Vendor provides
maintenance, (1) any tasks required to apply maintenance supplied
by a Vendor, (2) reporting to and assisting Vendors in resolving
Vendor Software errors or deficiencies and (3) determining
whether and in what time frame new releases from the Vendor will
be installed and
(iii) with respect to Vendor Software for which the Vendor no longer
provides maintenance or for which the Vendor has provided EDS all
source code and documentation sufficient for a reasonably skilled
programmer to customize, maintain and enhance the Software,
changes or corrections to the Software required to keep the
Software operational in the same manner as it operated as of the
Delivery Date or as of the date on which the applicable revision
was implemented, as the case may be.
(z) "Spectradyne Software" means the Software owned by Spectradyne
identified in Schedule 1.2(z), as amended from time to time by
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Spectradyne with written notice to EDS; provided, that, no such
additions or deletions adversely affect EDS' obligations under this
Agreement.
(aa) "Vendor" means (i) any person or entity that manufactures, publishes,
distributes or licenses, as the case may be, Hardware or Software and
(ii) any person or entity (other than EDS or an affiliate of EDS) that
provides services to Spectradyne and any person or entity that
provides services to EDS.
(ab) "Vendor Hardware" means any Hardware provided to EDS or Spectradyne by
a Vendor.
(ac) "Vendor Software" means that operating system Software and/or
utilities Software, the rights to which are licensed or owned by a
Vendor.
ARTICLE II
DEVELOPMENT OF DIGITALLY BASED VIDEO ON DEMAND SYSTEM
2.1 Digitally Based Video On Demand System Development Schedule. EDS will
provide a Digitally Based Video On Demand System for beta testing (meaning
limited use and testing in five hotels selected by Spectradyne) within
eight months after the Effective Date.
EDS will provide a Digitally Based Video On Demand System, which Digitally
Based Video On Demand System will pass an acceptance test mutually agreed
to by Spectradyne and EDS and be available for wide-scale use within four
months after the commencement of the beta test. If EDS makes the Digitally
Based Video On Demand System available for delivery to Spectradyne before
the Delivery Date (meaning for the purposes of this Agreement that if
Spectradyne (i) submits a purchase order for a Digitally Based Video On
Demand System before the Delivery Date and EDS accepts such purchase order
or (ii) does not submit a purchase order for a Digitally Based Video On
Demand System before the Delivery Date, but the Digitally Based Video On
Demand System passes the acceptance test developed under Schedule 4.9 to
the Phase I Agreement before the Delivery Date, and EDS is ready, willing
and able to accept a purchase order (meaning without adding any terms and
conditions beyond those set forth in this Agreement) before the Delivery
Date), Spectradyne will pay to EDS the bonus described in Section 5.2 of
this Agreement. If EDS makes the Digitally Based Video On Demand System
available for delivery to Spectradyne after the Delivery Date, EDS will pay
to Spectradyne the liquidated damages described in Section 6.7 of this
Agreement.
2.2 Provision of DBVODS Hardware. EDS will provide DBVODS Hardware to
Spectradyne when requested by Spectradyne in accordance with Section 3.1
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of this Agreement. The DBVODS Hardware will comply with all applicable
codes, permits and certifications (including without limitation UL
certification). Except as provided in Section 4.4 of this Agreement, with
regard to DBVODS Hardware, EDS or the applicable Vendor, as the case may
be, will retain all right, title and interest in and to any and all United
States letters patent, or any copyright, trademark, service mark, trade
name, trade secrets or other intellectual property rights relating to or
arising out of any and all DBVODS Hardware, subject to any licensing or
other rights in favor of Spectradyne necessary to provide Spectradyne with
the unfettered right to own and use such DBVODS Hardware as part of the
Digitally Based Video On Demand System provided by EDS.
2.3 Development of Software. EDS will develop certain Software to be used in
the Digitally Based Video On Demand System (the "EDS Software", except that
such term does not include the interface protocol specifications), and
Spectradyne will provide approvals of each of the deliverables in the EDS
Software development process, in accordance with the Software development
procedures set forth in Schedule 4.9 of the Phase I Agreement.
Spectradyne and EDS will meet two times each year to determine what changes
in functionality (meaning Software Maintenance or Software Enhancements, as
the case may be) Spectradyne desires. Spectradyne and EDS will mutually
agree on such changes and on a schedule for EDS' development and delivery
of such changes. EDS will perform such modifications in accordance with
the Software development procedures set forth in Schedule 4.9 of the Phase
I Agreement. All charges for such changes are included in the annual
license fee set forth in Section 5.1 of this Agreement. To the extent that
Spectradyne desires additional changes made to the EDS Software which would
exceed the amounts for which EDS has budgeted under the license fee, EDS
will perform such modifications subject to a charge to be mutually agreed
to by Spectradyne and EDS prior to EDS' performance of any such Software
development services.
All Software developed under this Section 2.3 and provided to Spectradyne
under this Agreement will be construed as "Developed Software" (as such
term is defined in the Phase I Agreement), and Spectradyne and EDS will
have the rights and obligations set forth in Section 4.4 of this Agreement,
and in Section 11.4 and Section 11.5 of the Phase I Agreement; except that,
notwithstanding such provisions in the Phase I Agreement (a) each copy of
EDS Software will be subject to the license fee set forth in Section 5.1 of
this Agreement and (b) the term of the license will be specific to each
copy licensed by Spectradyne from EDS, which term will begin on the date
EDS installs such copy of EDS Software in the Digitally Based Video on
Demand System and will continue for so long as Spectradyne pays license
fees set forth in Schedule 5.1, unless terminated as set forth in Section
11.4 or Section 11.5 of the Phase I Agreement.
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ARTICLE III
PROVISION OF PRODUCTS AND SERVICES
3.1 Purchase Orders. Spectradyne will procure DBVODS Hardware, DBVODS
Software and Digitally Based Video On Demand Systems from or through EDS
by issuing, and EDS' accepting, purchase orders in accordance with the
following:
(a) Spectradyne may issue to EDS one or more written purchase orders
identifying the Products Spectradyne desires to purchase from EDS.
(b) EDS will accept purchase orders if (i) EDS agrees to deliver the
Products or perform the services on or before the date specified on
the purchase order (but EDS will not reject a purchase order for
reasons related to the timing of the delivery if the date for delivery
specified in the purchase order is 90 or more days after the date on
which EDS receives such purchase order); provided, however, that
nothing set forth in this Section 3.1 is intended to modify or alter
EDS' obligations as to the time of the initial delivery of Digitally
Based Video On Demand Systems as set forth in Section 2.1 of this
Agreement and (ii) if the purchase order does not establish terms and
conditions which are new or which conflict with those set forth in
this Agreement. EDS will not unreasonably reject any purchase order.
If EDS does not agree to deliver the Products on the delivery date set
forth on the purchase order, then EDS and Spectradyne will promptly
negotiate a mutually agreeable delivery date in good faith.
(c) Spectradyne will either (i) include on each purchase order a request
that EDS install such Product or (ii) contemporaneous with the
issuance of the applicable purchase order, issue a Field Service Order
(as such term is defined in the Phase I Agreement) which includes a
request that EDS install such Product in accordance with the
provisions of Section 6.3 of the Phase I Agreement. EDS will be
obligated to install or deliver any Products at those locations that
have the capability of receiving compressed digital video data in a
manner consistent with a CDVRO System (as such term is defined in the
Phase I Agreement).
(d) Spectradyne agrees, subject to the provisions of Section 6.3, to
purchase a minimum of [ ] Digitally Based Video On Demand Systems
between the Delivery Date and the second anniversary of the Delivery
Date (subject to delays occasioned by (i) force majeure or (ii) delays
in the production or delivery of the Digitally Based Video On Demand
Systems not caused by Spectradyne). If Spectradyne fails to purchase
a minimum of [ ] Digitally Based Video On Demand Systems between the
Effective Date and the second anniversary of the Effective Date, then
Spectradyne will pay
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to EDS, as liquidated damages and not as a penalty, an amount equal to
[ ] percent times the price of a Digitally Based Video On Demand
System times result of [ ] less the number of Digitally Based Video On
Demand Systems actually purchased.
At any time after Spectradyne has purchased the [ ] Digitally Based
Video On Demand System, Spectradyne may request that EDS provide
different Hardware containing similar and, if appropriate, more
advanced functionality to that contained in the DBVODS Hardware.
Spectradyne and EDS will meet and negotiate in good faith to modify
this Agreement to include such Hardware; provided, that, if EDS elects
not to provide such Hardware or is unwilling to provide such Hardware
at a price within [ ] percent of the price offered by the most
competitive Vendor providing similar quality products and/or
performing similar quality services (in each case meaning similar
quality to that of EDS), Spectradyne may purchase such Hardware from
such most competitive Vendor, and Spectradyne and EDS will mutually
agree on each party's rights and obligations under this Agreement
affected by Spectradyne's purchase of such Hardware from or through
such Vendor.
Purchase orders accepted in accordance with this Agreement are referred to
herein as "Purchase Orders."
3.2 Cancellation and Change of Purchase Orders. Except as otherwise agreed
upon by the parties, Spectradyne may change the delivery location set forth
in a Purchase Order without charge. Purchase Orders may be cancelled at
any time after acceptance by EDS, provided that, Spectradyne pays to EDS as
a cancellation fee an amount equal to [ ] percent times the aggregate price
of the Products in such Purchase Order.
3.3 Inspection, Integration, and Testing. Spectradyne and EDS will cooperate
in good faith to jointly develop reasonable procedures for the inspection
and testing of Products, and EDS will perform such inspection and testing
in accordance with such procedures at no additional charge to Spectradyne.
In addition, Spectradyne will provide EDS with specifications for the
integration of Products. EDS will perform such inspection, integration,
and testing in accordance with the applicable procedures and specifications
at no cost to Spectradyne.
3.4 Transportation of Products. Products will be delivered to the location
designated on the applicable Purchase Order. Subject to the provisions of
Section 2.1 of this Agreement regarding the initial delivery of the
Digitally Based Video On Demand System, any delivery date specified on the
Purchase Order or in EDS' acceptance of Spectradyne's Purchase Order is
approximate; provided, however, that such delivery will in any event (other
than to the extent affected by a force majeure) be effected within five
days of such
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delivery date. Reasonably documented charges for transportation (including
charges relating to the insurance of Products being transported), rigging
and drayage will be paid by Spectradyne. Spectradyne and EDS will mutually
agree on one or more methods of transportation, rigging and drayage.
3.5 Title and Risk of Loss. Title to DBVODS Hardware will pass to Spectradyne
upon payment in full of the applicable charge for such DBVODS Hardware, and
EDS will provide all documentation reasonably requested by Spectradyne
to evidence EDS' passage of clear title in such DBVODS Hardware to
Spectradyne. Except for loss of, or damage to, DBVODS Hardware
attributable solely to the negligence or wilful misconduct of EDS (which
loss or damage to DBVODS Hardware will, subject to the limitations set
forth in Section 6.8, be borne by EDS), all risk of loss of, or damage to,
DBVODS Hardware will be borne by Spectradyne after delivery of such
Hardware by EDS to a common carrier.
3.6 Unpacking and Installation. EDS will use commercially reasonable efforts
to install the Products in accordance with the installation procedures set
forth in Schedule 3.6 of this Agreement (which Schedule will be developed
after the conclusion of the beta test of the Digitally Based Video On
Demand System and incorporated into this Agreement at that time). Subject
to the limitations set forth in Section 3.1(c), Spectradyne will choose
where the Products will be installed; except that EDS will not be required
to install the Products in a location that may cause material risk of
physical injury to an Employee or any third party or the property of EDS,
such Employee or any third party. Spectradyne will comply with all local,
state, and federal laws, rules and regulations with regard to such
installation in obtaining any and all permits and licenses required for
such installation (which permits will be obtained by EDS under the Phase I
Agreement and paid for by Spectradyne under the Phase I Agreement).
Spectradyne will (through EDS under the Phase I Agreement, the charges for
which will be paid for by Spectradyne under the Phase I Agreement) be
responsible for the preparation of Spectradyne's location and will provide
all necessary communications capabilities, power, power stabilization
measures and other facilities and environmental modifications required for
the effective installation or utilization of the Products. EDS will perform
the installation (which installation will be performed by EDS under the
Phase I Agreement and paid for by Spectradyne under the Phase I Agreement)
and start-up of the Products at Spectradyne's location. EDS will perform
such installation and start-up in accordance with all licenses and permits
obtained by Spectradyne of which EDS is made aware and in accordance with
all local, state and federal laws, rules and regulations regarding such
installation.
3.7 Acceptance of Products. EDS will test the Products on the date of
installation for performance in accordance with the specifications, and
will correct any failure to meet such specifications within 24 hours
thereafter.
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3.8 On-Site Service. If Spectradyne, Spectradyne's customer or an EDS Field
Service representative (performing his or her obligations under this
Agreement or the Phase I Agreement) determines that a Digitally Based Video
On Demand System is not operating properly, the person discovering such
problem may request On-Site Service by calling EDS' Customer Assistance
Center (as such term is defined in the Phase I Agreement) (a "Service
Request"). All Service Requests will include the location of the Digitally
Based Video On Demand System, a description of the problem, a contact name
and corresponding telephone number, and any other pertinent information for
each Digitally Based Video On Demand System.
(a) Time of Performance of Hardware Services. EDS will perform On-Site
Services on the Digitally Based Video On Demand System identified in a
Service Request. On-Site Services will be initiated between the hours
of 7:00 a.m. and 12:00 a.m. (midnight) according to that site's local
time, Monday through Sunday (the "Coverage Time"). If On-Site
Services cannot be initiated during the Coverage Time, or if it is not
commercially reasonable to initiate such On-Site Services within the
Coverage Time (for example and without limitation, the Service Request
is received at 11:45 pm and the distance to the site of the Digitally
Based Video On Demand System is 45 minutes from the field service
office), such On-Site Services will be initiated at 7:00 a.m. the next
day or as soon thereafter as commercially reasonable efforts permit.
(i) Upon EDS' receipt of a Service Request, EDS will use commercially
reasonable efforts to have an authorized EDS representative
arrive at the Digitally Based Video On Demand System requiring
On-Site Services (other than those Digitally Based Video On
Demand Systems located at the sites set forth in Schedule 3.8(a)
(i), as amended from time to time upon the mutual agreement of
Spectradyne and EDS, which Schedule will include the applicable
response times for such sites therein) within four hours after
the authorized EDS representative is notified of such Service
Request.
(ii) EDS will use commercially reasonable efforts to restore the
functionality of the Digitally Based Video On Demand System
within 24 hours after the arrival of the authorized EDS
representative at the Digitally Based Video On Demand System
requiring On-Site Services.
(b) Parts. EDS will maintain, at Spectradyne's cost, a supply of spare
parts inventories in accordance with the failure rates, repair times
and spare part replenishment recommendations published by the
applicable Vendor. To the extent that EDS is the manufacturer of any
component of DBVODS Hardware, EDS will maintain a supply
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of spares in accordance with industry standards for microcomputer
products until such time as EDS can determine a performance-based
standard, at which time EDS will store spare parts in -accordance with
such performance-based standard. All such parts will remain the
property of EDS until incorporated into the Digitally Based Video On
Demand System. If EDS stores spare parts on Spectradyne's premises (or
the premises of a customer of Spectradyne), EDS may remove them at any
time. When a part is removed from Digitally Based Video On Demand
System and another is installed, the part removed will be examined by
EDS to determine whether or not it is, in EDS' sole determination,
commercially practicable to refurbish such part. If EDS determines
that it is commercially practicable to refurbish such part, EDS will
refurbish such part, at Spectradyne's cost, and will return such
refurbished part to the inventory of spare parts for use at a later
time by EDS in repairing DBVODS Hardware. If EDS determines that it is
not commercially practicable to refurbish such part, EDS will return
such part to Spectradyne. Once integrated into DBVODS Hardware, title
to all such spare parts will transfer from EDS to Spectradyne and will
remain in Spectradyne even if removed, refurbished (and reinstalled or
placed in the spare parts inventory) or returned to Spectradyne.
(c) Subcontracting. EDS represents and Spectradyne acknowledges that EDS
may subcontract Service Requests to third parties to perform such
repairs. In such event, EDS will, nonetheless, be responsible for
such subcontractor's compliance with EDS' obligations under this
Agreement.
(d) General Obligations of Spectradyne. To the extent permitted under the
applicable agreements between Spectradyne and Spectradyne's customers,
Spectradyne will (i) provide safe, clean and adequate work spaces in
each location, including heat, light, ventilation, electric current
and outlets for use by EDS and its representatives and (ii) provide or
cause to be provided to EDS and its representatives full and free
access to the Digitally Based Video On Demand System and any other
Hardware or Software or other items pertaining to the Digitally Based
Video On Demand System necessary for EDS to properly perform On-Site
Services (and to the extent that such access is not provided by
Spectradyne, EDS will be relieved of its obligations related to On-
Site Service set forth in this Agreement). Spectradyne will not
perform any other repairs, maintenance, alterations, or adjustments of
or to any Digitally Based Video On Demand System. To the extent that
Spectradyne or a customer of Spectradyne performs any such repairs as
a result of an emergency or as a result of EDS' failure to comply with
the response times set forth in Section 3.8(a) of this Agreement, EDS
will be relieved of all responsibility and liability for any such
DBVODS
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Hardware so repaired from the date of such repair and until EDS
has an opportunity to correct, if necessary, any such repairs (which
correction will be subject to EDS' then current time and materials
charge). After such correction, if any, is made by EDS, EDS'
obligations under this Agreement with regard to such DBVODS Hardware
will resume.
All charges for On-Site Services are for a period of five years
commencing on the date on which the Digitally Based Video On Demand
System is installed and ending on the fifth anniversary of such
installation date (and EDS' obligation to perform On-Site Services on
the Digitally Based Video On Demand System will continue in effect
even if such five-year 'period continues past the expiration of this
Agreement) and are set forth in Schedule 5.1 of this Agreement. On or
before the fifth anniversary of the installation date of each
Digitally Based Video On Demand System, Spectradyne will notify EDS of
Spectradyne's intention to either (i) extend, subject to EDS' then
current charges, the On-Site Services or (ii) refresh, subject to the
applicable charges, the technology by obtaining and installing a new
Digitally Based Video On Demand System. All charges for all On-Site
Services to repair Digitally Based Video On Demand Systems during the
warranty period are included in the On-Site Service charge set forth
in Schedule 5.1 of this Agreement.
ARTICLE IV
PROPRIETARY RIGHTS AND WARRANTIES
4.1 Vendor Software. Spectradyne acknowledges that certain Vendor Software
provided hereunder is proprietary to and the sole property of certain third
parties. Spectradyne agrees to comply with, and to cause Spectradyne's
customers to comply with, any and all licensing agreements that maybe
required by such third parties in order to permit Spectradyne to utilize
such Vendor Software. In addition, Spectradyne agrees that where
Spectradyne requests that EDS load, burn-in or otherwise integrate Vendor
Software or assemble a Digitally Based Video On Demand System, Spectradyne
will comply with any and all applicable shrink wrap licenses. Spectradyne
acknowledges that in certain instances EDS will be loading Licensed
Software from a "golden disk" or "golden tape" and providing archival
copies of the Vendor Software to Spectradyne in the original packaging,
which packaging contains the applicable license agreement between
Spectradyne and the third party owner of such Vendor Software. Such
license may state that a condition precedent to Spectradyne's obligations
under such license is the breaking of such packaging. Spectradyne agrees,
whether or not Spectradyne has broken such packaging, to comply with the
terms and conditions of such license agreement.
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Neither Spectradyne nor EDS will have any obligation to control or audit
the Software resident on any Hardware operated by any employee of the
other, and Spectradyne and EDS are each and will each remain liable to any
Vendor for any unauthorized copies made by any of its employees of any
Vendor Software.
4.2 EDS Software. All Software developed under Section 2.3 of this Agreement
and provided to Spectradyne under this Agreement will be construed as
Developed Software, and Spectradyne and EDS will (with respect to EDS
Software) have the rights set forth in Section 4.4 of this Agreement and in
section 11.4 and Section 11.5 of the Phase I Agreement; except that,
notwithstanding such provisions in the Phase I Agreement (i) each copy of
EDS Software will be subject to 'the license fee set forth in Section 5.1
of this Agreement and (ii) the term of the license will be specific to each
copy licensed by Spectradyne from EDS, which term will begin on the date
EDS installs such copy of EDS Software in the Digitally Based Video on
Demand System and will continue for so long as Spectradyne pays license
fees set forth in Schedule 5.1, unless terminated as set forth in Section
11.4 or Section 11.5 of the Phase I Agreement.
4.3 Spectradyne Software. To the extent that Spectradyne provides Spectradyne
Software to EDS under this Agreement for EDS' use in performing its
obligations under this Agreement, Spectradyne and EDS will have all rights
and obligations regarding such Spectradyne Software set forth in Section
11.3 of the Phase I Agreement.
4.4 Cross-License of Patent Rights. Spectradyne and EDS will each have the
following rights:
(a) Grant of License to Use. Spectradyne and EDS each grant to the other
and their Affiliates (as defined in the Phase I Agreement) an
exclusive license (in the markets described in Section 11.9 of the
Phase I Agreement), other than use by EDS of EDS' Patent Rights or
Other Intellectual Property Rights to comply with its obligations to
Spectradyne under this Agreement and the Phase I Agreement,
transferable (in accordance with Section 4.4(c) of this Agreement) in
and to each other's worldwide Patent Rights, now owned or hereafter
acquired prior to the expiration of this Agreement (defined as all
Letters Patent, patent applications, divisionals, reissues,
continuations and continuations-in-part (i) with regard to
Spectradyne's Patent Rights, related to or arising out the Products
and any hardware or software used in conjunction with Products
provided by EDS under this Agreement and (ii) with regard to EDS'
Patent Rights, related to or arising out of Products provided by EDS
under this Agreement) and Other Intellectual Property Rights, whether
now owned or hereafter acquired prior to the expiration or termination
of this Agreement, (defined as (i) trade secrets, (ii) any
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registered or unregistered copyrights; provided that attribution is
made to the owner of the registered or unregistered copyright and
(iii) any trade name, trade mark and service mark in accordance with
each party's internal manuals, which use of such trade name, trade
mark and service mark will be subject to the owner's prior written
consent, which consent will not be unreasonably withheld, delayed or
conditioned) to use (and not to make, copy or sell) such hardware,
software (to the extent that such right to use relates to Software
that is patented, such use will be in accordance with Section 4.1,
Section 4.2 or Section 4.3 of this Agreement, as the case may be) and
Products, as the case may be, during the term of this Agreement.
(b) Transfer and Sublicense. If either Spectradyne or EDS desires to
transfer or sublicense the license granted to it hereunder, it will
provide the non-transferring party with a written request (the
"Request"), and such Request will be approved or rejected by the non-
transferring party as follows:
(i) As to transfers of the rights and obligations under Section
4.4(a) of this Agreement other than sublicenses described in
Section 4.4(b)(ii) below, such Request will set forth the name of
the transferee, the transferee's contact person and such other
information as the non-transferring party may reasonably request.
The non-transferring party will approve or reject such Request in
writing within 30 days after the date on which such party
receives such Request in accordance with Section 7.1 of this
Agreement, which writing, in the case of a rejection, will set
forth the reason(s) for such rejection. Neither party will have
the right to pledge, make collateral assignments or
hypothecations of the other party's Patent Rights or Other
Intellectual Property Rights.
(ii) As to sublicenses of the rights and obligations under Section
4.4(a) of this Agreement (meaning for the purposes of this
Agreement an extension to a third party of rights and obligations
mutually agreed to by Spectradyne and EDS and set forth in a
sublicense agreement between the transferring party and such
third party and that does not divest the transferring party of
any of its rights or obligations under this Agreement), such
Request will include the name of the proposed sublicensee, the
rights the transferring party desires to convey to the transferee
in such sublicense, the geographic marketplace, the duration of
such sublicense, the price to be paid to the non-transferring
party as consideration for the non-transferring party's
permission to convey the rights set forth in such sublicense and
all other rights to be conveyed in such
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sublicense. The non-transferring party will, in its sole
discretion, approve or deny such Request within 30 days after the
date of such Request. No sublicense will be valid without the
prior written consent of the non-transferring party.
Notwithstanding the foregoing, EDS consents to the sublicense of
all rights and obligations under Section 4.4(a) from EDS to
Spectradyne for end users located in North America for use by
such end users in accordance with this Agreement and the Phase I
Agreement.
(c) Initiation of Actions and Distribution of Collected Judgement Amounts.
If a patent owner prosecutes or litigates a claim, demand or other
proceeding and pays all costs and expenses related to such claim, the
patent owner will be entitled to all amounts awarded and collected.
If EDS elects to make a claim, demand or otherwise initiate any
proceeding against a third party named in Section 11.9(b) of the Phase
I Agreement or any other third party in the markets (meaning for the
use described in the geographic areas described) protected in
Section 11.9(a) for an infringement of EDS' Patent Rights or Other
Intellectual Property Rights related to any Product, Spectradyne and
EDS will mutually agree on the amount of the costs that Spectradyne
and EDS will bear in such prosecution or litigations or if no such
agreement is reached or can be reached, Spectradyne may (with regard
only to such markets protected in Section 11.9(a) or such third
parties named in Section 11.9(b)) pursue the claim at its own cost and
expense. If Spectradyne elects not to prosecute or litigate a claim,
demand or other proceeding against a third party for an infringement
of Spectradyne's Patent Rights or Other Intellectual Property Rights
related to any hardware, software or Product, EDS may prosecute or
litigate such claim at EDS' sole cost and expense.
If any judgement is collected as a result of a claim, demand or other
proceeding claiming an infringement of Patent Rights in which both
parties pay some of the out-of-pocket expenses (defined as all costs
of the prosecution or litigation, including all legal and professional
fees, all damages awarded, but will not include future royalties, if
any) related to such claim or which is prosecuted or litigated, and
all out-of-pocket expenses are paid, by the party not the patent
owner, the amount collected will be distributed in the following
priority:
(i) each party will be reimbursed the amount of out-of-pocket
expenses it paid from the amount recovered (unless one party paid
all such costs, in which the other party will be reimbursed no
expenses) and
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(ii) to the extent that any amounts remain, all such amounts
(including without limitation any future royalties and any
amounts remaining from any lump sum award) will be paid to the
patent owner.
If a party other than the patent owner prosecutes or litigates a
claim, demand or other proceeding under this Section 4.4(c), such
party will not settle any such claim without first giving the patent
owner the right to participate in settlement discussions related to
that party's Patent Rights or Other Intellectual Property Rights and
approve or reject such settlement offers.
Notwithstanding anything else in this Agreement or in the Phase I
Agreement, either party will have the right to seek injunctive relief
under the Patent Rights and Other Intellectual Property Rights of the
other in the markets described in Section 11.9 of the Phase I
Agreement.
4.5 Warranties. EDS warrants the Products as set forth in Section 8.1 and
Section 8.2 of the Phase I Agreement. In addition to such warranties, to
the extent that EDS is the manufacturer of any component of DBVODS
Hardware, EDS warrants that such component will operate in accordance with
the applicable specifications for a period of 12 months from the date on
which such component is installed.
The warranties contained in Section 8.2(a) and Section 8.2(c) of the Phase
I Agreement and set forth above in this Section 4.5 are contingent upon
proper use of Vendor Hardware and Vendor Software and do not cover Vendor
Hardware or Vendor Software on which the original identification marks have
been removed or altered or that have been modified without EDS' approval,
improperly tested by Spectradyne or that have been subjected to unusual
physical or electrical stress (including without limitation any such stress
which would give rise to an excusable delay under Section 15.2 of the Phase
I Agreement). THE WARRANTIES SET FORTH IN SECTION 8.2 OF THE PHASE I
AGREEMENT ARE LIMITED WARRANTIES.
EXCEPT AS SPECIFICALLY STATED IN SECTION 8.2 OF THE PHASE I AGREEMENT AND
AS SET FORTH IN THIS SECTION 4.5, EDS MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR
PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICES, HARDWARE,
SOFTWARE, SIGNAL TRANSMITTED OR OTHER PRODUCTS OR SERVICES PROVIDED UNDER
THIS AGREEMENT. No representation or warranty made by any person,
including any representative of EDS, that is inconsistent or in conflict
with, or in addition to the terms of, the warranties set forth in Section
8.2 of the
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Phase I Agreement or as set forth above in this Section 4.5 will be binding
upon EDS unless expressed in a writing signed by a duly authorized
representative of EDS.
4.6 Spectradyne's Remedies. Spectradyne will have the remedies set forth in
Section 8.3 of the Phase I Agreement. If such exclusive remedies, fails of
their essential purpose, then as an alternative sole and exclusive remedy,
Spectradyne may recover from EDS, subject to the limitations of Section 6.8
of this Agreement, direct damages incurred by Spectradyne.
4.7 Exclusivity. With regard to the Digitally Based Video On Demand System,
Spectradyne and EDS will have the rights and obligations set forth in
Section 11.9 of the Phase I Agreement.
ARTICLE V
CHARGES AND PAYMENTS TO EDS
5.1 Charges for Products and Services. All charges for Products and services
will be as set forth in Schedule 5.1, as revised upon the mutual agreement
of Spectradyne and EDS from time to time, or as otherwise agreed upon in
writing by the parties.
From and after the date that Digitally Based Video On Demand Systems are
available for wide-scale use, EDS will review its costs and prices for
supplying and maintaining the Digitally Based Video On Demand system twice
a year. If EDS receives cost reductions from Vendors (on Vendor Hardware,
Vendor Software or services) and if EDS determines that, after subtracting
such savings from the then current price of a Digitally Based Video On
Demand System, the cumulative effect of such reductions will result in a
price reduction equal to or greater than [ ] of the then current
price for a Digitally Based Video On Demand System, then EDS will reduce
its price for each Digitally Based Video On Demand System to Spectradyne
from and after the date on which EDS makes such determination by an amount
equal to [ ] of such savings. (For example, suppose that EDS
determines as a result of its review that the cost of a widget required in
the Digitally Based Video On Demand System is reduced from [ ] to [ ]
and all other costs remain the same. EDS will then subtract [ ] from the
price of the Digitally Based Video On Demand System. If the result is
equal to or greater than [ ] less than the then current price for a
Digitally Based Video On Demand System, then EDS will reduce the then
current price for the Digitally Based Video On Demand System by an amount
equal to [ ] (an amount equal to [ ] of the savings.)
5.2 Bonus. Spectradyne will pay EDS a bonus, meaning an amount in addition to
any and all other charges under this Agreement, if EDS makes the Digitally
Based Video On Demand System available for delivery to Spectradyne prior to
the Delivery Date. The amount of the bonus will be as
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set forth in Section 9.3 of the Phase I Agreement and will be paid to EDS
as set forth in Section 5.3 of this Agreement.
5.3 Payment. Except as otherwise set forth herein, all sums due to EDS
pursuant to this Agreement will be payable within 30 days after receipt by
Spectradyne of an invoice therefor from EDS. EDS will invoice Spectradyne
on or after the applicable installation date for the Products covered by
such invoice. EDS will invoice on a monthly basis for all services
approved by Spectradyne in accordance with the applicable approval
procedures and performed during the prior month. Any sum due EDS hereunder
that is not paid when due will thereafter bear interest until paid at a
rate of interest equal to the lesser of (i) two percent per annum more than
the "prime" rate announced as such from time to time by Citibank N.A., New
York, or successor and (ii) the maximum rate of interest allowed by
applicable law.
5.4 Taxes. Spectradyne will pay to EDS amounts equal to any sales, use,
privilege, excise or other taxes based on gross receipts, however
designated or levied, imposed by any state, federal or local government or
other taxing authority paid or payable by EDS on the (i) charges imposed
under this Agreement, (ii) this Agreement or (iii) any information
technology services, Products, Software, Hardware, other service or
materials provided under this Agreement or upon their use. However,
Spectradyne is not responsible for (i) any franchise taxes, taxes based on
the net income or payroll of EDS or (ii) property taxes on EDS Hardware
unless and until such EDS Hardware becomes the property of Spectradyne.
ARTICLE VI
DISPUTE RESOLUTION, TERMINATION AND
LIMITATION OF LIABILITY
6.1 Dispute Resolution. In the event of any dispute or controversy between
the parties of any kind or nature, Spectradyne and EDS will resolve such
dispute or controversy in accordance with the procedures set forth in
Article XII of the Phase I Agreement. To the extent that Spectradyne
claims that EDS is subject to liquidated damages under Section 6.7 of this
Agreement and Spectradyne and EDS submit such issue to arbitration,
Spectradyne and EDS agree that (i) the arbitration proceeding will be
completed and (ii) to the extent EDS is found to have an obligation to pay
such liquidated damages, EDS will pay such liquidated damages in funds
immediately available to Spectradyne, in both cases within 45 days after
the date on which the arbitration panel first convenes.
6.2 Termination for Cause. In the event that either party materially or
repeatedly defaults in the performance of any of its duties or obligations
set forth in this Agreement (other than a default by Spectradyne in payment
to EDS), and such default is not substantially cured within 30 days after
written notice is given to the defaulting party specifying the default,
then the
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party not in default may, by giving written notice thereof to the
defaulting party, terminate this Agreement as of a date specified in such
notice of termination.
6.3 Termination for Failure to Obtain Unconditional Approvals or Waivers.
Spectradyne's obligations under Section 3.1(d) will become effective only
at such time as Spectradyne obtains the unconditional approvals or waivers,
as the case may be, described in Section 1.2 of the Phase I Agreement. If
Spectradyne is unable to obtain such unconditional approvals or waivers, as
the case may be, on or before October 1, 1993, EDS will have the right to
terminate this Agreement as of October 1, 1993.
6.4 Termination for Insolvency and Related Events. Each party will have the
right to terminate this Agreement in accordance with the provisions of
Section 13.5 of the Phase I Agreement.
6.5 Termination for Nonpayment. In the event that Spectradyne defaults by not
paying when due any amount due to EDS hereunder and does not cure such
default within 10 days after being given written notice of such default,
then EDS may, by giving written notice thereof to Spectradyne, terminate
this Agreement as of the date specified in such notice of termination. In
any event, the obligation of Spectradyne to pay amounts due to EDS in
accordance with the terms and conditions contained herein will survive any
termination of this Agreement.
IN THE EVENT OF A TERMINATION FOR NONPAYMENT PURSUANT TO THIS SECTION 6.5
AND IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO EDS, EDS WILL HAVE THE
RIGHT TO ENTER UPON THE PREMISES WHERE THE PRODUCTS ARE LOCATED, TAKE
POSSESSION OF SUCH PRODUCTS AND REMOVE SUCH PRODUCTS WITH OR WITHOUT
JUDICIAL PROCESS (IF SUCH TAKING WITHOUT JUDICIAL PROCESS CAN BE DONE
REASONABLY AND WITHOUT BREACH OF THE PEACE AND IS PERMITTED BY THE LAWS OF
THE JURISDICTION IN WHICH THE PRODUCTS ARE RESIDENT). SUBJECT TO
SPECTRADYNE'S HAVING RECEIVED ALL NOTICES PROVIDED IN THE FIRST GRAMMATICAL
PARAGRAPH OF THIS SECTION 6.5, SPECTRADYNE DOES HEREBY EXPRESSLY WAIVE ANY
RIGHT TO ANY FURTHER NOTICE, LEGAL PROCESS OR JUDICIAL HEARING PRIOR TO
SUCH REPOSSESSION BY EDS. SPECTRADYNE UNDERSTANDS THAT THE RIGHT TO PRIOR
NOTICE AND HEARING IS A VALUABLE RIGHT AND AGREES TO THE WAIVER THEREOF AS
A PART OF THE CONSIDERATION FOR AND AS AN INDUCEMENT TO EDS TO EXTEND
CREDIT NOW AND HEREAFTER TO SPECTRADYNE. IN CONNECTION WITH SUCH ACTION BY
EDS IN TAKING POSSESSION OF PRODUCTS, EDS MAY TAKE POSSESSION OF ANY
PRODUCTS LOCATED ON SPECTRADYNE'S PREMISES AND HOLD OR STORE SUCH PRODUCTS
FOR SPECTRADYNE AT SPECTRADYNE'S
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EXPENSE. In addition, EDS may at its option sell, lease or otherwise
dispose of all or any portion of such Products, with the privilege of
becoming the purchaser thereof, at public or private sale, for cash or on
credit and without notice of its intention to do so or of its doing so, in
which event EDS will apply the cash proceeds from any sale or other
disposition less all costs and expenses incurred in connection with the
recovery, repair or storage of such Products or the transaction itself,
against all sums due from Spectradyne to EDS under this Agreement.
In addition to the rights to cure set forth above in this Section 6.5, any
bank, lending institution or other lender described in Section 1.3(bn) of
the Phase I Agreement, or any successor to such bank, lending institution
or other lender, may cure any default under this Section 6.5. If
Spectradyne notifies EDS within three Business Days after the date of EDS'
notice of default that Spectradyne is in active discussions with such a
bank, lending institution or other lender, EDS will extend the cure period
set forth above in this Section 6.5 to 15 Business Days. If such bank,
lending institution or other lender cures such default within such 15-
Business Day period, EDS will, notwithstanding the provisions of Section
6.2 with regard to such default, continue to perform its obligations under
this Agreement without interruption, which continuation will not be
construed as a waiver by EDS of any other right under this Agreement.
6.6 Proprietary Rights Indemnification. EDS and Spectradyne each will, in
accordance with the provisions of Section 14.1(a) and Section 14.2 of the
Phase I Agreement, indemnify, defend and hold harmless the other and each
Affiliate (as such term is defined in Section 1.3(f) of the Phase I
Agreement) of the other from any and all claims, actions, damages,
liabilities, costs and expenses finally awarded by a court of competent
jurisdiction, including reasonable attorneys' fees and expenses, arising
out of, under, or in connection with any claims of misappropriation of a
trade secret, or any claims of direct infringement of any United States
letters patent, or any copyright, trademark, service mark, trade name or
similar proprietary rights alleged to have occurred because of the Hardware
or Software provided by or through the indemnitor. Notwithstanding the
foregoing, EDS will have no such liability if:
(a) Spectradyne uses any Product provided by EDS under this Agreement in a
manner other than for which it was designed,
(b) Spectradyne uses any Product provided by EDS under this Agreement in
combination with hardware or software not provided by EDS under this
Agreement and such infringement would not have occurred but for such
combination,
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(c) Spectradyne modifies any Product provided by EDS under this Agreement
and such infringement would not have occurred but for such
modification,
(d) Spectradyne uses the Product in the practice of a patented process and
there would be no infringement in the absence of such practice,
(e) such claim arises out of Spectradyne's use of such Products outside of
the scope of the license granted to Spectradyne by EDS,
(f) such claim arises out of EDS' compliance with specifications provided
by Spectradyne to EDS and such infringement would not have occurred
but for such compliance or
(g) such claim for restriction of a business opportunity or alleging
infringement in any country of importation where one does not have to
be an inventor in order to obtain a patent.
Notwithstanding any other provision of this Agreement or the Phase I
Agreement, neither party will have the right to seek an indemnity from the
other more than the three years the expiration or termination of this
Agreement.
6.7 Liquidated Damages. EDS will pay Spectradyne liquidated damages if (a) EDS
makes the Digitally Based Video On Demand System available for delivery to
Spectradyne (as set forth in Section 2.1) after the Delivery Date or (b) if
(i) EDS fails to deliver the DBVODS Hardware (including the operating
system software for such DBVODS Hardware) for the Digitally Based Video On
Demand System at or less than the price set forth in Schedule 5.1 and (ii)
Spectradyne does not elect to terminate the Phase I Agreement under Section
13.1(b) of the Phase I Agreement as a result of such failure. The amount of
the liquidated damages will be as set forth in Section 14.4(e) and Section
14.4(f), respectively, of the Phase I Agreement.
6.8 Limitation of Liability. Except to the extent included in liquidated
damages under Section 6.7 of this Agreement, EDS will not be liable to
Spectradyne, whether based on an action or claim in contract, equity, tort,
negligence, intended conduct or otherwise, for any amounts representing
loss of income, data, profits or savings or indirect, incidental,
consequential or punitive damages of Spectradyne or any third party, and in
no event (other than as provided under Section 6.7 of this Agreement) will
the amount of damages recoverable against EDS for all events, acts or
omissions exceed the total dollar amount paid by Spectradyne to EDS for the
particular services, Product or Products that are the subject matter of or
are directly related to the cause of action. All amounts paid as damages
under this Agreement will be included in the calculations of limitations of
liability described in Section 14.4(a) and Section 14.4(h) of the Phase I
Agreement. Further, any cause of
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action must be asserted against either party in accordance with the
provisions of Section 14.5 of the Phase I Agreement. EDS and Spectradyne
expressly acknowledge that the limitations contained in this Section 6.8
have been the subject of active and complete negotiation between EDS and
Spectradyne and represent the parties' agreement based upon the level of
risk to EDS associated with the performance of obligations pursuant to this
Agreement and the payments made by Spectradyne to EDS for such performance.
ARTICLE VII
MISCELLANEOUS
7.1 Binding Nature and Assignment. This Agreement will be binding on the
parties hereto and their respective successors and permitted assigns, but
neither party may, nor will have the power to, assign this Agreement
without the prior written consent of the other, which consent will not be
unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, EDS will have the right to subcontract as set forth in Section
3.8(c).
7.2 Relationship of Parties. EDS is performing pursuant to this Agreement
only as an independent contractor. EDS has the sole obligation to
supervise, manage, contract, direct, procure, perform or cause to be
performed its obligations set forth in this Agreement, except as otherwise
agreed upon in writing by the parties. Nothing set forth in this Agreement
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).
7.3 Confidentiality and Media Releases. "Confidential Information" (as such
term is defined in Section 11.8 of the Phase I Agreement and including the
terms and conditions of this Agreement) received under this Agreement will
be subject to the rights and obligations set forth in Section 11.8 of the
Phase I Agreement. All media releases, public announcements and public
disclosures by either party or its employees, agents or representatives
relating to this Agreement will be made in accordance with the provisions
of Section 15.4 of the Phase I Agreement.
7.4 Export. Spectradyne will not export any Products from the United States,
either directly or indirectly, without first obtaining a license as
required from the U.S. Department of Commerce or other agency or department
of the United States Government and the prior written consent of EDS, which
consent will not be unreasonably withheld, delayed or conditioned.
Spectradyne will bear all costs of international transportation from EDS to
the international destination and all costs of compliance with all
applicable
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export laws and regulations. In addition, Spectradyne will indemnify,
defend and hold EDS harmless from and against any and all claims, actions,
losses, damages, costs, expenses (including without limitation attorneys'
fees) or other liability arising out of the direct or indirect violation of
any export laws or regulations and for the direct or indirect breach of any
EDS or third party license agreement.
7.5 Notices. Wherever one party is required or permitted to give notice to
the other party pursuant to this Agreement, such notice will be given and
deemed received as set forth in Section 15.5 of the Phase I Agreement.
7.6 Force Majeure. Each party will be excused from performance hereunder for
the reasons and for the time periods described in Section 15.2 of the Phase
I Agreement.
7.7 Severability. If, but only to the extent that, any provision of this
Agreement is declared or found to be illegal, unenforceable or void, then
both parties will be relieved of all obligations arising under such
provision, it being the intent and agreement of the parties that this
Agreement will be deemed amended by modifying such provision to the extent
necessary to make it legal and enforceable while preserving its intent. If
that is not possible, another provision that is legal and enforceable and
achieves the same objective will be substituted. If the remainder of this
Agreement is not affected by such declaration or finding and is capable of
substantial performance, then the remainder will be enforced to the extent
permitted by law.
7.8 Waiver. No delay or omission by either party to exercise any right or
power will impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the parties of any of the covenants,
conditions or agreements to be performed by the other will not be construed
to be a waiver of any succeeding breach thereof or of any other covenant,
condition or agreement herein contained. No change, waiver or discharge
hereof will be valid unless in writing and signed by an authorized
representative of the party against which such change, waiver or discharge
is sought to be enforced.
7.9 Cumulative Remedies. Except when a remedy is deemed under this Agreement
to be "sole and exclusive", all remedies set forth in this Agreement will
be cumulative and in addition to and not in lieu of any other remedies
available to either party at law, in equity or otherwise, and may be
enforced concurrently or from time to time.
7.10 Counterparts. This Agreement may be executed in several counterparts, all
of which taken together will constitute one single agreement between the
parties.
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7.11 Certain Construction Rules. The article, section and schedule headings
and the table of contents used in this Agreement are for convenience of
reference only and in no way define, limit, extend or describe the scope or
intent of any provisions hereof. In addition, as used in this Agreement,
unless otherwise expressly stated to the contrary, (a) other than
references to Business Days, all references to days, months or years are
references to calendar days, months or years, (b) all references to
"Sections" and "Articles" are references to Sections or Articles of this
Agreement, (c) all references to "Schedules" are references to Schedules
attached to this Agreement and (d) all uses of "or" include "and/or". To
the extent that there is any conflict between the text of this Agreement
and any Schedule, the Schedule will control. To the extent that there is
any conflict between the provisions of this Agreement and the provisions of
the Phase I Agreement with regard to each party's rights and obligations
related to the development, provision, sale, license, installation or
Service of Digitally Based Video On Demand Systems or other Products
(including without limitation all rights of or to liquidated damages,
warranties and indemnities pertaining thereto), the provisions of this
Agreement will control. To the extent that there is a conflict between any
other provision of this Agreement, if any, and the provisions of the Phase
I Agreement, the Phase I Agreement will control.
7.12 Survival of Certain Provisions. The following provisions of this
Agreement will survive any expiration or termination of this Agreement for
any reason: Section 1.2, Section 2.2, Section 2.3, Article IV, Article V
and Article VII, Section 6.6, Section 6.7 and Section 6.8. In addition and
to the extent that the Phase I Agreement expires or is terminated prior to
the effective date of any expiration or termination of this Agreement, any
provisions of the Phase I Agreement referenced in this Agreement will
continue to the extent applicable to this Agreement.
7.13 Governing Law. This Agreement will be construed in accordance with, and
the rights of the parties will be governed by, the internal laws of the
State of Texas applicable to agreements entered into and intended to be
performed within the state, without regard to any otherwise applicable
principles of conflicts of laws.
7.14 No Third Party Beneficiaries. Nothing in this Agreement may be relied
upon by or will benefit any party other than Spectradyne and EDS.
7.15 Approvals and Similar Actions. Except where such action is to be taken in
the sole discretion of a party, where approval, acceptance, consent or
similar action is required or requested of a party, such action will not be
unreasonably withheld, delayed or conditioned.
7.16 Entire Agreement. This Agreement, including any Schedules referred to
herein and attached hereto and each Purchase Order (except for preprinted
terms and conditions on a Purchase Order which the parties agree will not
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be binding on the parties), each of which is incorporated herein,
constitutes the entire and exclusive statement of the agreement between the
parties with respect to its subject matter. There are no oral or written
representations, understandings or agreements relating to this Agreement
that are not fully expressed herein. All changes to this Agreement must be
in writing and signed by the party against whom such change would be
enforced. The parties agree that any other terms or conditions included in
any Purchase Orders, quotes, acknowledgements, bills of lading or other
forms utilized or exchanged by the parties will not be incorporated herein
or be binding unless expressly agreed upon in writing by authorized
representatives of the parties.
IN WITNESS WHEREOF, EDS and Spectradyne have each caused this Agreement to
be signed and delivered by its duly authorized officer or representative as of
the Effective Date.
ELECTRONIC DATA SYSTEMS SPECTRADYNE, INC.
CORPORATION
By:______________________________ By:_______________________________
Printed Name:____________________ Printed Name:_____________________
Title:___________________________ Title:____________________________
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EXHIBIT 10.26
Master Lease Number_____
ADDENDUM NO. 2
PHASE 2
OPERATING LEASE
This Addendum No. 2 to that certain Phase 2 Information Technology Product
and Services Agreement ("Phase 2 ITS Agreement") is a Phase 2 Operating Lease
("Phase 2 Operating Lease") between Electronic Data Systems Corporation, a Texas
corporation ("EDS"), and Spectradyne, Inc., a Delaware corporation
("Spectradyne"), dated as of August 27, 1993 (and including subsequent
addendums), is made and entered into by and between EDS and Spectradyne as of
January 1, 1995.
RECITALS
WHEREAS, EDS and Spectradyne intend to confirm, by this Phase 2 Operating
Lease, the status of EDS' ownership of, and Spectradyne's rights and obligations
with respect to, the equipment listed or, which equipment is being leased
pursuant to this Phase 2 Operating Lease, subject to the right (as set out
herein) of Spectradyne to purchase all of such equipment at the greater of
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 2 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 digitally based video
on demand system installed, operated and managed by EDS for Spectradyne
plus certain additional equipment that will also be part of such system as
may be agreed to by EDS and Spectradyne in the future relating to
installations at five Hyatt hotels listed on Schedule 1.2 (collectively,
the "Equipment").
Lessee's Initials_____
1
<PAGE>
Master Lease Number_____
ARTICLE II
TERM
2.1 Original Term. The Term of this Phase 2 Operating Lease shall commence, on
January 1, 1995 and, subject to the terms hereof, this Phase 2 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 the Phase 2
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,
"Rental Payments") with respect to the Equipment in the amounts set out in
Schedule 3.1 (as may be adjusted in the future pursuant to the last
sentence of this Section 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 (as such amounts may be adjusted in the future pursuant
to the last sentence of this Section 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 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
(which may be adjusted in the future pursuant to the last sentence of this
Section 3.1) 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
1, 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 Spectradyne, with
interest if applicable, in accordance with the aforementioned Minimum
Payments but in no event later than August 31, 1995; and (iv) shall
Lessee's Initials_____
2
<PAGE>
Master Lease Number_____
become "past due" if not paid on or before August 31, 1995. As used in
this Phase 2 Operating Lease, the terms "Rent Payment" and "Rent Payments"
will include adjustments to the amounts set out in Schedule 3.1 to reflect
additional amounts to be paid by Spectradyne to EDS as the result of
additional Equipment coming under this Phase 2 Operating Lease relating to
installations at five Hyatt Hotels listed on Schedule 1.2, such additional
amounts to be agreed to by EDS and Spectradyne and to be calculated on
significantly the same basis as the amounts originally set out in Schedule
3.1.
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 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 2 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 for in
Articles III and V of the Phase 2 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 3.4 of the Phase 2 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 EDS, its agents, 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
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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 a-sing 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 2
Operating Lease: (i) Spectradyne's execution, delivery and performance of
this Phase 2 Operating Lease have been duly authorized by all necessary
action on the part of Spectradyne and this Phase 2 Operating Lease
constitutes the legal, valid and binding obligation of Spectradyne and (ii)
the execution and delivery by Spectradyne of this Phase 2 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 7.1 OF THE
PHASE 2 ITS AGREEMENT, SPECTRADYNE SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF EDS, TRANSFER, SUBLEASE, ASSIGN, PLEDGE OR HYPOTHECATE THIS
PHASE 2 OPERATING LEASE, THE EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST
THEREIN. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.1 OF THE PHASE 2 ITS
AGREEMENT, SPECTRADYNE 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 2
OPERATING LEASE, THE EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST THEREIN
TO AN AFFILIATE OF EDS.
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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 2 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 2
Operating Lease or in enforcing any of EDS's rights or remedies pursuant to
this Phase 2 Operating Lease. Spectradyne also covenants to obtain
ratification no later than February 15, 1995 by its Board of Directors of
the execution, delivery and performance of this Phase 2 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 7.1 of
the Phase 2 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
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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.
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 pent or other payment
required hereunder no later than 10 days after the day when due; or (b)
fails to make any of the payments 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 2 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
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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 2
Operating Lease.
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 2
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 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 2 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 re-lease 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 2 Operating Lease. The
captions contained in this Phase 2 Operating Lease are for convenience only
and shall not affect the interpretation of this Phase 2 Operating Lease.
This Phase 2 Operating Lease and all attachments hereto executed by both
EDS
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and Spectradyne, constitute the entire Phase 2 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 2
Operating Lease or approval of a permitted assignment or transfer by
Spectradyne. All notices under this Phase 2 Operating Lease shall be sent
to the respective' party at its address set forth under its signature to
this Phase 2 Operating Lease or at such other address as the parties may
provide to each other in 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
2 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 THE PHASE 2 ITS AGREEMENT, THE EQUIPMENT IS LEASED HEREUNDER BY
EDS "AS-IS." EXCEPT AS OTHERWISE PROVIDED IN THE PHASE 2 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 Sections 4.5 and 4.6
of the Phase 2 ITS Agreement, which obligations are hereby reaffirmed (but
not extended beyond the time frames provided for in such Phase 2 ITS
Agreement) with respect to the Equipment to the extent such obligations
exist as of January 1, 1995 (or, with respect to the Equipment to be added
as
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contemplated under this Phase 2 Operating Lease at the five Hyatt Hotels
listed in Schedule 1.2, as of the date so added).
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, afl of the Equipment at the greater of (i)
the Residual Value or (ii) the fair market value. As used herein with
respect to of 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
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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 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 2 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 Employment. 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 2 ITS Agreement. Except as modified or amended in this Phase 2
Operating Lease, the Phase 2 ITS Agreement will be, and remains, in full
force and effect in accordance with its terms and conditions where there is
a conflict between this Phase 2 Operating Lease and the provisions of the
Phase 2 ITS Agreement, this Phase 2 Operating Lease controls. In addition,
the provisions of the Phase 2 ITS Agreement regarding confidentiality and
public disclosure (Section 7.3 thereof) and dispute resolution (Section
6.1) are incorporated herein as if fully set out in this Phase 2 Operating
Lease.
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9.11 Relationship of Parties. EDS is performing pursuant to this Phase 2
Operating Lease only as an independent contractor. EDS has the sole
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed its obligations set forth in this Phase 2 Operating
Lease, except as otherwise agreed upon in writing by the parties. Nothing
set forth in this Phase 2 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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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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Master Lease Number_____
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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Exhibit 10.28
ADDENDUM
SPECIAL PROVISIONS AGREEMENT
This Special Provisions Agreement ("Special Provisions Agreement") among
Electronic Data Systems Corporation, a Texas corporation ("EDS"), EDS Technical
Products Corporation, a Texas Corporation ("TPD"), Spectradyne, Inc., a Delaware
corporation ("Spectradyne"), and SpectraVision, Inc., a Delaware corporation
formerly known as SPI Holding, Inc. ("SpectraVision"), is made and entered into
by and between EDS, TPD, Spectradyne and SpectraVision as of January l, 1995.
This Special Provisions Agreement constitutes (i) Addendum No. 5 to that
certain Agreement for Phase l Information Technology Services ("Phase 1 ITS
Agreement") between EDS and Spectradyne, dated as of July 28, 1993, (ii)
Addendum No. 3 to that certain Phase 2 Information Technology Product and
Service Agreement ("Phase 2 ITS Agreement") between EDS and Spectradyne, dated
as of August 27, 1993, and (iii) Addendum No. 1 to that certain Personal
Computer Functionality Management Agreement ("PCFM Agreement") between
SpectraVision and TPD dated as of July 28, 1993.
RECITALS
WHEREAS, the Phase 1 ITS Agreement, the Phase 2 ITS Agreement, the PCFM
Agreement and the Financial Agreement (as defined in the Phase l ITS Agreement)
form the basis of a business relationship among EDS, TPD, Spectradyne and
SpectraVision; and
WHEREAS, EDS, Spectradyne, TPD and SpectraVision are entering into this
Special Provisions Agreement, and concurrently EDS and Spectradyne are entering
into a Phase l Operating Lease and a Phase 2 Operating Lease, both also dated as
of January l, 1995, in order to continue to pursue the business relationship;
and
WHEREAS, EDS asserts that Spectradyne and SpectraVision have not made all
payments due and owing as of December 31, 1994 pursuant to the Phase 1 ITS
Agreement, and the Phase 2 ITS Agreement, such shortfall in payments totalling
at least $20,531,568.88 as of December 31, 1994 (this amount plus amounts not
yet billed or invoiced to Spectradyne or Spectravision as incurred pursuant to
the Phase 1 ITS Agreement or the Phase 2 ITS Agreement in December 1994 are
referred to herein as "Deferred Payments"); and
WHEREAS, EDS and TPD also assert that Spectradyne and SpectraVision have
not made all payments due and owing as of December 31, 1994 pursuant to the PCFM
Agreement ("PCFM Deferred Payments"); and
WHEREAS, EDS, TPD, Spectradyne and SpectraVision intend to provide for, by
this Special Provisions Agreement, a new payment schedule for the amounts due
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and owing by Spectradyne or SpectraVision as of December 31, 1994 pursuant to
the Phase 1 ITS Agreement, the Phase 2 ITS Agreement or the PCFM Agreement
(which new payment schedule will be revoked and all Deferred Payments will
become immediately due and owing if there is a default under the new payment
schedule); and
WHEREAS, EDS, TPD, Spectradyne and SpectraVision further intend, in part by
this Special Provisions Agreement, to confirm their agreement that if
Spectradyne or SpectraVision fail to make any payments provided for in the Phase
1 Operating Lease, the Phase 2 Operating Lease or the Special Provisions
Agreement or any payments still provided for after the date hereof in the Phase
1 ITS Agreement, the Phase 2 ITS Agreement or the PCFM Agreement, then, subject
to certain conditions and in addition to any other available remedies that EDS
or TPD may seek, EDS will have access to the network described in Section 11.9
of the Phase l ITS Agreement;
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, TPD, Spectradyne and
SpectraVision hereby agree to undertake all rights and obligations under the
terms and conditions of this Special Provisions Agreement.
ARTICLE I
PAYMENT SCHEDULE
1.1 Schedule. Spectradyne and SpectraVision agree jointly and severally to pay
EDS and TPD in cash (by check or wire transfer of funds) the following
amounts: (i) the payments referenced in Section 1.3 below on the terms set
forth therein; (ii) a minimum payment of at least $500,000.00 for each of
January, February and March of 1995 (which amount may be increased pursuant
to Section 3.6 of this Special Provisions Agreement), which will be applied
first against amounts incurred under the Phase 1 ITS Agreement and the
Phase 2 ITS Agreement, then against amounts incurred under the Phase 1
Operating Lease and the Phase 2 Operating Lease and, if TPD has extended
capital under the PCFM Agreement as allowed under Section 3.6 hereof, then
against amounts under PCFM Agreement (the "Minimum Payments"); (iii) as
provided for in the Phase 1 Operating Lease or the Phase 2 Operating Lease,
in the Phase 1 ITS Agreement or the Phase 2 ITS Agreement or in the PCFM
Agreement, the balance of the amounts incurred under such leases or
agreements for January, February and March of 1995 and not covered by the
Minimum Payments when allocated as provided in clause (ii) above, plus
interest until paid at the annual rate of 11-1/2, (the "Delta Payments");
(iv) an amount equal to 10% of the net proceeds from any sale(s) or other
transfers prior to August 31, 1995 of at least a majority of the
outstanding stock or a significant amount of the assets of Spectradyne
Asia-Pacific Limited and
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SpectraVision of Canada, Inc. (as used in this clause, "net proceeds"
means all consideration of any type minus any normal and ordinary closing
costs as reasonably approved by EDS and TPD) ("Additional Minimum
Payments"); (v) the Deferred Payments; and (vi) the Deferred PCFM Payments.
The Minimum Payments shall be paid on the last day of each of January,
February and March of 1995, as the case may be (unless such day is not a
business day, in which case, on the next business day) and shall be
increased, with respect to the remaining monthly installments by an amount
equal to the capital extended by TPD to finance leases as contemplated in
the PCFM Agreement (and from the date of such extension, the term "Minimum
Payments" as used in this Special Provisions Agreement shall refer to the
$500,000.00 originally constituting a Minimum Payment plus such increase).
The Delta Payments shall be paid on or before August 31, 1995, and the
Deferred Payments plus interest on such amount beginning on January 1, 1995
until paid at the annual rate of 11-1/2%, shall also be paid on or before
August 31, 1995. The Deferred PCFM Payments plus interest on such amount
beginning on January 1, 1995 until paid at the annual rate of 11-1/2% shall
be paid on or before March 20, 1995. The Additional Minimum Payments shall
be paid in monthly installments equal to at least 25% of the Additional
Minimum Payment commencing with the first calendar month immediately
following the month in which a sale is completed and continuing until the
earlier of (x) complete payment to EDS of the Additional Minimum Payments
and (y) August 31, 1995, on which date any outstanding balance of the
Additional Minimum Payments will be paid. To the extent the payments
referred to in Section 1.3 below, the Minimum Payments, the Delta Payments,
the Additional Minimum Payments, the Deferred Payments or the Deferred PCFM
Payments are not paid in accordance with or prior to their respective
schedules provided for or referenced in this Section 1.1, then such
untimely payments are "past due." Moreover, upon any of the foregoing
payments becoming "past due", the Deferred Payments, the PCFM Deferred
Payments and the Delta Payments shall become, without the necessity for any
further action, immediately due and payable. EDS agrees that it will not
have the right to declare a default under the Phase 1 Operating Lease or
the Phase 2 Operating Lease so long as Spectradyne is in compliance with
this Section 1.1.
1.2 Location of Payment. The payments pursuant to this Article I shall be made
to EDS at such location as directed from time to time by EDS by invoice or
other writing from EDS.
1.3 Maintenance of Other Payments. Spectradyne and SpectraVision acknowledge
and confirm their agreement to keep current (taking into account, where
relevant, the modifications implemented by the Phase 1 Operating Lease or
the Phase 2 Operating Lease and subject to the provisions in Sections 1.1
of this Special Provisions Agreement with respect to Minimum Payments) all
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payments due and owing EDS and TPD pursuant to the Phase 1 ITS Agreement,
the Phase 2 ITS Agreement, the PCFM Agreement, the Phase 1 Operating Lease,
the Phase 2 Operating Lease and this Special Provisions Agreement,
commencing for the Phase 1 Operating Lease and the Phase 2 Operating Lease
on April 1, 1995 and for the other agreements on January 1, 1995 and
continuing for all leases and agreements through and until the termination
of the last of the Phase 1 ITS Agreement, the Phase 2 ITS Agreement, the
PCFM Agreement, the Phase 1 Operating Lease and the Phase 2 Operating
Lease.
ARTICLE II
ACCESS TO NETWORK
2.1 In the event of an "Event of Default" under the Phase I Operating Lease or
the Phase 2 Operating Lease or in the event that payments provided for in
Article I of this Special Provisions Agreement are not timely made, then
EDS (and any subsidiary controlled by EDS or a subsidiary of EDS), without
it being deemed a breach of Section 11.9 (or any other provision) of the
Phase 1 ITS Agreement, or of any other agreement involving EDS, TPD,
Spectradyne or SpectraVision, may proceed with and use, with or without the
assistance of Spectradyne and without regard to deadlines or other dates,
the new marketing networks outlined or contemplated by Draft #14 of that
certain Market Development and Services Agreement between EDS and
Spectradyne. In such event, Spectradyne will be entitled to the
compensation outlined in such draft, but EDS will have the right to apply
such compensation first to any payments due and owing to EDS under Section
1.1 of this Special Provisions Agreement. If Spectradyne does not perform
the obligations assigned to it in such draft in connection with EDS' use of
the new marketing networks, EDS may perform such obligation(s) on
Spectradyne's behalf, in which case the compensation to be paid to
Spectradyne will be decreased accordingly.
ARTICLE III
GENERAL MATTERS
3.1 Captions; Counterparts; Integration; Entire Special Provisions Agreement;
Board Approval. The captions contained in this Special Provisions Agreement
are for convenience only and shall not affect the interpretation of this
Special Provisions Agreement. 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 Special Provisions Agreement. This Special Provisions Agreement
and all attachments hereto executed by EDS, TPD, Spectradyne and
SpectraVision constitute the entire Special Provisions Agreement among EDS,
TPD, Spectradyne and
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SpectraVision relating to the matters herein (except as otherwise provided
herein), and supersede all prior agreements relating thereto, whether
written or oral, and may not be amended or modified except in a writing
signed by the parties hereto. Except as modified in the Phase 1 Operating
Lease, the Phase 2 Operating Lease or this Special Provisions Agreement,
the Phase 1 ITS Agreement, the Phase 2 ITS Agreement, the PCFM Agreement
and the Financing Agreement will be, and remain, in full force and effect
in accordance with the terms and conditions thereof. Where there is a
conflict between, on the one hand, the provisions of the Special Provisions
Agreement, the Phase 1 Operating Lease or the Phase 2 Operating Lease and,
on the other hand, the Phase 1 ITS Agreement, the Phase 2 ITS Agreement,
the PCFM Agreement or the Financing Agreement, then the Phase 1 Operating
Lease, the Phase 2 Operating Lease and this Special Provisions Agreement
control. Spectradyne and SpectraVision covenant to obtain approval by
their respective boards of directors of this Special Provisions Agreement
no later than February 15, 1995.
3.2 No Waiver; EDS Approval. Any failure of EDS or TPD to require strict
performance by Spectradyne or SpectraVision, or any written waiver by EDS
or TPD of any provision hereof, shall not constitute consent or waiver of
any other breach of the same or any other provision hereof.
3.3 Governing Law and Jurisdiction. THIS SPECIAL PROVISIONS AGREEMENT IS MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS. EDS, TPD,
SPECTRADYNE AND SPECTRAVISION 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.
3.4 Time. Time is of the essence of this Special Provisions Agreement.
3.5 Survival of Certain Terms. All obligations of Spectradyne and
SpectraVision to make payments to EDS or TPD hereunder pursuant to the
terms hereof shall survive termination of this Special Provisions
Agreement.
3.6 New Installations, Upgrades and Retrofits. The parties acknowledge that
the Phase 1 Operating Lease and the Phase 2 Operating Lease do not apply to
new installations, upgrades or retrofits not expressly included in
schedules attached to such leases. The parties further agree that after
the date of this Special Provisions Agreement, all new installations,
upgrades or retrofits pursuant to the Phase 1 ITS Agreement, the Phase 2
ITS Agreement, the PCFM Agreement or otherwise (unless explicitly included
in the Phase 1 Operating Lease or the Phase 2 Operating Lease) will be
prepaid in full by Spectradyne
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or SpectraVision in accordance with a good faith estimate provided by EDS
or TPD, as the case may be (such estimate to be reconciled to reflect
actual amounts with a prompt credit to Spectradyne or SpectraVision or a
prompt additional payment to EDS or TPD, as the case may be).
Notwithstanding the immediately preceding sentence, TPD may, at its option,
extend capital to finance the leases as contemplated in the PCFM Agreement,
in which event the Minimum Payments will be increased by the amount so
financed. The parties hereto also acknowledge that although the Phase 2
Operating Lease allows for the addition of equipment to that lease at five
scheduled Hyatt Hotels, the additional lease payments related to such
equipment only relate to hardware, and any services related to the
installation of same constitute "special efforts" that must be prepaid
(such prepayment to be reconciled subsequently, with prompt credit or
payment, as the case may be, to reflect actual amounts).
3.7 Continuing Service Obligations. To the extent that Spectradyne does not
either (i) allow for a renewal of the Phase 1 Operating Lease and the Phase
2 Operating Lease or (ii) exercise its purchase rights with respect to the
equipment covered by such Leases, then the service obligations of EDS with
respect to such equipment pursuant to the Phase 1 ITS Agreement and the
Phase 2 ITS Agreement will expire without further liability or cost to EDS
under such agreements.
3.8 Relationship of Parties. Each of EDS and TPD is performing pursuant to
this Special Provisions Agreement only as an independent contractor. EDS
or TPD has the sole obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed its obligations set forth in this
Special Provisions Agreement, except as otherwise agreed upon in writing by
the parties. Nothing set forth in this Special Provisions Agreement will
be construed to create the relationship of principal and agent between EDS
or TPD, on the one side, and Spectradyne or SpectraVision, on the other
side. Neither EDS nor TPD will act or attempt to act or represent itself,
directly or by implication, as an agent of Spectradyne or SpectraVision or
of a customer of either 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 SpectraVision or of a customer of either.
3.9 Legal Counsel. Each of the parties hereto consulted, and was represented
by, legal counsel.
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SPECTRADYNE, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
SPECTRAVISION, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
ELECTRONIC DATA SYSTEMS CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
EDS TECHNICAL PRODUCTS CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT 10.29
TECHNOLOGY SERVICES AGREEMENT
THIS TECHNOLOGY SERVICES AGREEMENT (the "Agreement") is executed December 20,
1993, and made effective as of the close of business December 17, 1993 (the
"Commencement Date,,) by and between SPECTRADYNE, INC., a Texas corporation
("SPECTRADYNE"), and CERTECH TECHNOLOGY, INC., a Texas corporation ("CERPLEX").
RECITALS
This Agreement is made with reference to the following facts:
A. CERPLEX has been formed by THE CERPLEX GROUP, INC., a Delaware
corporation ("CERPLEX Parent") to engage in the business of providing electronic
component manufacturing and repair operations and management, warehouse and
shipping operations and management and related services. CERPLEX and
SPECTRADYNE believe that, by CERPLEX performing such services for SPECTRADYNE,
CERPLEX will be able to provide such services to SPECTRADYNE at a lower cost
than that which SPECTRADYNE is currently incurring, while CERPLEX will profit on
the performance of its services hereunder.
B. CERPLEX desires to provide to SPECTRADYNE, and SPECTRADYNE desires to
obtain from CERPLEX, the repair of electronic components and the operations and
management of the repair facility, warehouse and shipping operations and
management and related services which SPECTRADYNE currently performs at the
SPECTRADYNE Facilities, as defined below.
C. In order to enable CERPLEX to provide such services from and after the
Commencement Date, SPECTRADYNE desires to make available to CERPLEX and CERPLEX
desires to use, sublease and/or purchase, on the terms and conditions set forth
in this Agreement, certain resources used by SPECTRADYNE to provide the
services. In addition, CERPLEX desires to hire certain of SPECTRADYNE's
employees.
D. Concurrently with the execution of this Agreement, the parties are
entering into that certain lease as defined in Section 4.1 setting forth the
terms and conditions upon which CERPLEX will lease space from SPECTRADYNE.
Therefore, the parties agree as follows:
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ARTICLE 1
AGREEMENT AND TERM
1.1 AGREEMENT. During the term of this Agreement, CERPLEX shall
supply to SPECTRADYNE and SPECTRADYNE shall purchase from CERPLEX electronic
component manufacturing and repair operations and management services, warehouse
and shipping operations and related services as more particularly described in
Article 3 of this Agreement.
1.2 TERM - EXTENSION - EARLY TERMINATION.
1.2.1 TERM - EXTENSION. The term of this Agreement shall begin on
the Commencement Date and, unless terminated early in accordance with the
provisions hereof, shall expire five (5) years from the Commencement Date (the
"Term"). The Term shall be automatically extended for one (1) year (each such
extension being referred to as an "Extension Term") on the fifth Anniversary
Date and each Anniversary Date thereafter, unless one of the parties delivers a
written notice to the other party not later than ninety (90) days before such
Anniversary Date that such party does not wish for the term to be so extended,
in which case the term shall expire at the end of the Term or Extension Term, as
the case may be.
1.2.2 EARLY TERMINATION. Notwithstanding the foregoing, either party
may terminate this Agreement on 12 months notice by delivering written notice of
termination to the other party specifying this Section 1.2-2.
ARTICLE 2
DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
"Additional SPECTRADYNE FRUs" shall have the meaning set forth in
Section 3.2.1.
"Affiliate" of a party shall mean any entity controlled by, controlling or
under common control with that party.
"Anniversary Date" shall mean the date twelve (12) months from the
Commencement Date and every successive twelve month anniversary of such date.
"CERPLEX Parties" shall mean CERPLEX, the CERPLEX Parent and their
subsidiaries, Affiliates and employees.
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"Employee Plans" shall mean all "employee benefit plans" as defined in
Section 3(3) of the Employee Retirement income Security Act of 1974, as amended
("ERISA"), all "multiemployer plans" as defined in Section 3(37) of ERISA, all
specified fringe benefit plans as defined in Section 6039D of the Internal
Revenue Code of 1986, and all other compensation plans, agreements or policies
and any trust, escrow or other funding agreement related to such plans, which
are maintained or contributed to by SPECTRADYNE or with respect to which
SPECTRADYNE has any liability, regardless of whether funded or not.
"Enhancements" means any changes, enhancement, corrections, deletions
or modifications to: (i) any product, hardware, source code, software, process,
method or technique, or any of their function or functions, and (ii) all tasks
performed throughout the development cycle of the same, including, without
limitation, analysis, design, programming and testing.
"Hardware" means the physical transmitting, receiving and decoding
equipment; computers and related equipment, including, but not limited to,
central processing units and other processors; peripheral devices such as
storage devices, printers, terminals and other input and output devices; IRDS;
CDVRO Systems and mounts; and/or other tangible mechanical and electronic
equipment, such as controllers, modems, communications and telecommunications
equipment (voice, data and video) and networks intended for the input, storage,
manipulation, communication, transmission and retrieval of information and data.
"Initial SPECTRADYNE FRUs" shall have the meaning set forth in Section
3.2.1.
"Intellectual Property Rights" shall mean, without limitation, all
letters patent and patent applications worldwide and all divisionals,
continuation, continuation of parts, reissues, renewals, modifications,
additions and extensions of the same, and any and all other intellectual
property, including, without limitation, all copyrights, Trademarks, service
marks trade names, trade secrets, whether now owned or hereinafter acquired in,
and relating to, any Product, Hardware, Source Code, Software, process, method
or technique.
"New SPECTRADYNE Products" shall mean: (a) all manufactured Products
(excluding Software) designed by SPECTRADYNE or on its behalf (whether by the
CERPLEX Parties or third parties), and (b) all Products for which SPECTRADYNE
obtains manufacturing rights from third parties.
"Price Schedule" shall have the meaning set forth in Section 8.1.1 and
Schedule 8.1.
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"Products" shall mean, without limitation, any and all products, including
their related Hardware, Systems, Software and the specific Proprietary
Information pertaining thereto and any Enhancements thereto.
"Proprietary Information" shall have the meaning set forth in Section 7.1.
"Required Consents" shall mean any consents required to be obtained by
either party for the consummation of the transactions contemplated by this
Agreement.
"Services" shall mean those technology services provided by CERPLEX to
SPECTRADYNE, as more particularly described in Section 3.1.
"Software" shall mean: (i) the computer programs in object code (except
when Source Code is expressly called for as set forth herein, in which case the
term "Software" includes Source Code and object code) together with input and
output formats, program listings, narrative descriptions, operating instructions
and supporting documentation and will include the tangible media upon which such
programs and documentation are recorded as the same are more particularly
described on Schedule 7.2; (ii) the specific Proprietary Information pertaining
thereto, and (iii) any Enhancements thereto.
"Source Code" shall mean (i) the Software described in Schedule 7.2
and delivered to Cerplex, (ii) the Specific Proprietary Information pertaining
thereto, and (iii) any Enhancements thereto.
"SPECTRADYNE Facilities" shall mean the facilities, located at 1501
North Plano Road, Richardson, Texas that are the subject of that certain lease
attached hereto as Exhibit 4.1.
"SPECTRADYNE FRUs" shall mean the meaning set forth in Section 3.2.1.
"SPECTRADYNE Intellectual Property Rights" shall mean any and all
Intellectual Property Rights SPECTRADYNE may have in the SPECTRADYNE Property,
whether owned or hereinafter acquired by or licensed on a non-exclusive,
transferable basis to SPECTRADYNE, including such Intellectual Property Right
irrevocably assigned to SPECTRADYNE by the CERPLEX Parties pursuant to Article 7
hereof, excepting, however, any Intellectual Property Rights in which
SPECTRADYNE has granted an exclusive license to a party other than CERPLEX.
"SPECTRADYNE Production Assets" shall have the meaning set forth in
Section 7.1.
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"SPECTRADYNE Products" shall mean all Products (excluding software)
being manufactured by SPECTRADYNE at the time of the Closing.
"SPECTRADYNE Property" shall mean, without limitation, any and all
parts or components, whether now owned or hereinafter acquired, by Spectradyne,
the CERPLEX Parties (or by any other third party performing services on behalf
of SPECTRADYNE) in or relating to Trademarks, the Proprietary Information, the
SPECTRADYNE Products, New SPECTRADYNE Products, SPECTRADYNE FRUs, SPECTRADYNE
Production Assets, SPECTRADYNE Systems, and any Enhancements to the same.
"SPECTRADYNE Systems" shall mean the Hardware and Software described
on Schedule 7.2, which describes the individual Hardware and general operating
components and their functions, and such other Hardware and Software which any
of the CERPLEX Parties have access to or is delivered to any of the CERPLEX
Parties hereunder.
"Term" shall mean the Term and any extensions thereof pursuant to
Section 1.2.
"Trademarks" shall mean the trademarks and trade names, "SPECTRADYNE"
or "Spectravision," and such other trade names or trademarks (whether registered
or unregistered) now or hereinafter used by SPECTRADYNE.
Other capitalized terms used in this Agreement are defined in the
context in which they are used and shall have the meanings indicated by such
use.
ARTICLE 3
SERVICES AND PRODUCTS TO BE PROVIDED BY CERPLEX
3.1 SCOPE OF WORK. Subject to the terms and conditions of this
Agreement and SPECTRADYNE's rights hereunder, CERPLEX shall provide to
SPECTRADYNE (i)(A) manufacturing, warehousing, inventory management, shipping,
and receiving services as set forth herein with regard to the SPECTRADYNE
Products referenced on the Price List attached as Schedule 8.1 and to such New
SPECTRADYNE Products as requested by SPECTRADYNE from time to time and as
described in this Agreement (B) repair, modification and refurbishing services
with respect to the SPECTRADYNE Products, New SPECTRADYNE Products, and certain
Field Replaceable Units described below including return of such Products and
FRUs to the location, in the manner, within the time periods (which shall be
consistent with SPECTRADYNE's historic experience with repair-times in the 12-
month period preceding the Commencement Date), and at such times as specified by
SPECTRADYNE from time to time, and (C) certain other services described below
with regard to certain Field Replaceable
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Units described below ((A), (B) and (C) referred to herein collectively as the
"Services") (ii) certain "proto-build" services with regard to New SPECTRADYNE
Products if and as requested by SPECTRADYNE from time to time and as described
in this Agreement, and (iii) such other services as may be agreed upon by the
parties. CERPLEX shall not provide SPECTRADYNE Products or New SPECTRADYNE
Products to or for any other party, and such prohibition shall survive the
termination or expiration of this Agreement.
3.2 FIELD REPLACEABLE UNITS
3.2.1 ACCEPTANCE OF SPECTRADYNE FRUS. As of the Closing Date,
CERPLEX shall accept possession of certain field replaceable units (the "Initial
SPECTRADYNE FRUs") as described in Schedule 3.2.1 attached hereto and
incorporated herein by this reference, which are to be repaired hereunder.
SPECTRADYNE has completed an inventory, as set forth in Schedule 3.2.1, of the
Initial SPECTRADYNE FRUs which sets forth the number and types of Initial
SPECTRADYNE FRUs accepted by CERPLEX. During the sixty (60) day period
following CERPLEX's acceptance of the Initial SPECTRADYNE FRU'S, CERPLEX and
SPECTRADYNE shall mutually conduct an audit and usefulness appraisal of such
inventory and reach a final determination about the number and types of Initial
SPECTRADYNE FRUs accepted by CERPLEX. From time to time during the term of this
Agreement, CERPLEX shall accept possession of additional field replaceable units
("Additional SPECTRADYNE FRUs") (Initial SPECTRADYNE FRUs and Additional
SPECTRADYNE FRUs collectively shall be referred to as "SPECTRADYNE FRUs").
CERPLEX shall be liable for any and all expenses incident to its possession of
the SPECTRADYNE FRUs. CERPLEX shall not sell, lease or otherwise transfer
possession of any SPECTRADYNE FRUs to any party other than SPECTRADYNE, without
the express written consent of SPECTRADYNE.
3.2.2 REPAIR OF SPECTRADYNE FRUS; PRICES. CERPLEX shall repair,
modify and refurbish the SPECTRADYNE FRUs as provided in Section 3.1(i)(B)
above. The price for repair, modification, and refurbishment of SPECTRADYNE
FRUs shall be as set forth in Schedule 3.2.2 attached hereto and made a part
hereof.
3.2.3 TITLE. Title to the SPECTRADYNE FRUs shall remain in SPECTRADYNE
at all times.
3.2.4 WAREHOUSE SERVICES; RECORDS AND RIGHT TO INSPECT AND AUDIT
INVENTORY. With respect to all SPECTRADYNE FRUs received from SPECTRADYNE
pursuant to this Article, CERPLEX shall provide warehousing, storage, and
inventory control services and shall keep accurate records regarding the
disposition and uses of such SPECTRADYNE FRUs. CERPLEX shall, upon
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request by SPECTRADYNE, allow SPECTRADYNE or its designated representatives to
have access to such records as they may request.
3.2.5 INSURANCE. During the Term of this Agreement, CERPLEX shall
keep the SPECTRADYNE FRUs insured against-damage, destruction and loss of every
kind including, without limitation, loss by fire, theft and/or flood in an
amount equal to the fair market value of such parts and under a form of policy
sufficient to cover all SPECTRADYNE FRUs then in the possession of CERPLEX.
SPECTRADYNE shall be named as a loss payee under such policies, and the policy
or policies of insurance shall be delivered to SPECTRADYNE. Insurer shall be
obligated under such policy to notify SPECTRADYNE in writing thirty (30) days in
advance of any cancellation or expiration of any such policy of insurance.
CERPLEX shall pay all premiums or other expenses of the insurance.
3.2.6 FRU ANNUAL ADJUSTMENT. Upon the termination or expiration
of this Agreement and upon each Anniversary Date, CERPLEX shall conduct an
inventory of the SPECTRADYNE FRUs, in which SPECTRADYNE may participate to the
extent SPECTRADYNE deems appropriate, and to the extent CERPLEX, through its
records, is unable to account for the SPECTRADYNE FRUs less 1% in dollar amount
for shrinkage, then CERPLEX shall, at its option, either procure replacements
for SPECTRADYNE or pay to SPECTRADYNE an amount equal to the fair market value
of such unaccounted for SPECTRADYNE FRUs in excess of said shrinkage allowance.
3.2.7 BEST EFFORTS SUPPLY OF SPECTRADYNE FRUS. SPECTRADYNE
covenants that it will use its best efforts to ensure SPECTRADYNE FRUs are
returned to it and made available to CERPLEX. In the event the number of usable
SPECTRADYNE FRUs provided to CERPLEX is insufficient to enable CERPLEX to
perform its obligations hereunder without purchasing additional SPECTRADYNE
FRUs, CERPLEX shall provide SPECTRADYNE with notice of the same. SPECTRADYNE
shall promptly acquire and deliver to CERPLEX, at SPECTRADYNE's cost and
expense, that number of SPECTRADYNE FRUs required by CERPLEX. Any delay in the
performance by CERPLEX of its obligations hereunder due to a shortage of
SPECTRADYNE FRUs shall not be considered a breach of CERPLEX's obligations under
this Agreement.
3.3 SUBCONTRACTING; PROFESSIONAL PERFORMANCE OF SERVICES. CERPLEX
may subcontract any manufacturing or repair work that it performs under this
Agreement, provided that CERPLEX shall not contract with any subcontractor that
is not a subsidiary or affiliate of CERPLEX or the CERPLEX Parent without first
receiving the written consent of SPECTRADYNE to such subcontractor, such consent
not to be unreasonably withheld or delayed, and provided further, that any
subcontractor shall agree to be bound by the provisions of this Agreement,
including without limitation the provisions of Section 3.11,
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Section 11.2, Article 7 and Section 12.2. CERPLEX agrees that any and all
Services rendered to SPECTRADYNE by CERPLEX, or any third party performing the
Services on behalf of CERPLEX, shall be performed in a timely manner to
professional standards by qualified personnel and in accordance with the
operational and management methodologies and requirements specified by
SPECTRADYNE from time to time.
3.4 RISK OF LOSS. Any loss from the destruction of any SPECTRADYNE
Products or New SPECTRADYNE Products, as the case may be, whether completed or
partially completed, other than FRUs, that may occur while such Products are in
the possession or custody of CERPLEX (regardless of whether title to such
Products has passed to SPECTRADYNE) shall be borne by CERPLEX. Thereafter any
such loss from destruction, breakage, nondelivery, or otherwise, however caused,
shall be borne by SPECTRADYNE unless such loss is caused by some act or omission
of duty on the part of CERPLEX.
3.5 TRANSFER OF TITLE. The title to SPECTRADYNE Products and New
SPECTRADYNE Products, as the case may be, whether completed or partially
completed, shall pass to SPECTRADYNE upon delivery and acceptance of such
SPECTRADYNE Products or New SPECTRADYNE Products.
3.6 SERVICE and Repair WARRANTIES. CERPLEX is familiar with the
requirements of SPECTRADYNE and of SPECTRADYNE's intended use of the SPECTRADYNE
Products and New SPECTRADYNE Products and SPECTRADYNE FRUs to be delivered to
SPECTRADYNE hereunder (the "Work"). CERPLEX warrants that during the period set
forth in Section 3.7 below, the Work (whether performed by CERPLEX or by a
subcontractor) will meet, comply and conform to all functional, performance and
reliability requirements as set forth in the applicable specifications for that
item of work and shall be free from errors and defects in workmanship.
3.7 TERM OF WARRANTY. Notwithstanding any delivery, inspection and
acceptance of any Work delivered to SPECTRADYNE hereunder, at any time within
ninety (90) days from the date work is delivered to SPECTRADYNE, if the work
fails to conform to the provisions of the warranty set forth in Section 3.6,
SPECTRADYNE shall return the Work to CERPLEX and shall specify in writing the
manner in which the work fails to meet the warranty. CERPLEX shall, entirely at
its own expense, promptly repair or replace such Work as may be necessary to
bring the Work into conformity with the warranty set forth in Section 3.6.
CERPLEX shall ship such Work, at CERPLEX's expense, to the SPECTRADYNE facility
designated by SPECTRADYNE in accordance with SPECTRADYNE's instructions.
Notwithstanding the foregoing, the foregoing warranty remedy shall not apply to
work that does not conform to the warranty due to misuse of the work by
SPECTRADYNE or other third parties.
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3.8 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN
SECTION 3.6, CERPLEX DISCLAIMS ALL COMMERCIAL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW OR BY REASON OF CUSTOMER USAGE
IN THE TRADE. THE REMEDY PROVIDED IN SECTION 3.7 IS THE EXCLUSIVE REMEDY UNDER
SUCH WARRANTY AND IN LIEU OF ALL OTHER REMEDIES PROVIDED BY LAW IN RESPECT OF
SUCH WARRANTY. CERPLEX'S LIABILITY UNDER THE WARRANTY IS ALSO LIMITED BY
SECTION 12.1.3.
3.9 THIRD PARTY WARRANTIES. If any third party supplies components
to CERPLEX for use in products supplied to SPECTRADYNE, CERPLEX shall make
reasonable efforts to pass through to SPECTRADYNE any warranties made by such
third-party supplier to the extent permitted under such warranties. To the
extent such warranties are passed through to SPECTRADYNE, SPECTRADYNE shall have
the right to directly enforce any such warranty against the third-party
supplier, as well as CERPLEX's warranty provided above.
3.10 NEW EQUIPMENT OR PROJECTS. In the event that SPECTRADYNE
desires a manufacturing-related product, "proto-build" services, or other
services with regard to New SPECTRADYNE Products that is not being provided to
SPECTRADYNE by CERPLEX hereunder, SPECTRADYNE shall provide CERPLEX the
opportunity to provide such product or service. SPECTRADYNE shall describe the
product, "proto-build" services or other service in writing to CERPLEX and
CERPLEX shall respond within a reasonable time period as to its proposed pricing
structure and level of service. After review of the pricing structure and level
of service proposed by CERPLEX, SPECTRADYNE may elect not to have CERPLEX
provide such new product, "proto-build" services, or other service if
SPECTRADYNE is able to procure such product or service at any equal or higher
level of service from any other source on more favorable terms and conditions,
or either.
3.11 NON-COMPETITION. Due to CERPLEX's access to SPECTRADYNE's trade
secrets and intellectual property during the term of this Agreement and the
actual and irreparable damage to SPECTRADYNE that a disclosure of such
confidential information will cause, neither CERPLEX nor any of its
subcontractors (including without limitation subcontractors that are affiliates
and subsidiaries of CERPLEX and the CERPLEX Parent) ("CERPLEX Entity") during
the Term of this Agreement shall directly or indirectly contract with any person
that at the time such contract is entered into competes with SPECTRADYNE in the
provision of in-room video entertainment or interactive services, provided, that
if such person thereafter competes with SPECTRADYNE then any CERPLEX Entity with
whom such person has a contract will, at the request of
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SPECTRADYNE, neither extend or renew its contract with such person beyond the
term existing when SPECTRADYNE makes its request. If CERPLEX obtains actual
knowledge that an affiliate or subsidiary of CERPLEX or the CERPLEX Parent that
is not a subcontractor of CERPLEX under this Agreement has directly or
indirectly contracted with any person that competes with SPECTRADYNE in the
provision of in-room video entertainment or interactive services, CERPLEX shall
promptly give SPECTRADYNE notice of such contract. Subject to the foregoing, to
its obligations to supply SPECTRADYNE in accordance with SPECTRADYNE's purchase
orders, and to its obligation to refrain from manufacturing or using SPECTRADYNE
Products for the benefit of anyone other than SPECTRADYNE, CERPLEX may
manufacture any other products for any other person.
3.12 WAREHOUSING SERVICES
3.12.1 SERVICES. CERPLEX shall provide warehousing, inventory
management, and storage services ("warehousing services") for up to an amount of
warehouse space equal to that amount of warehouse and storage space at
SPECTRADYNE's manufacturing facility and at off-site miniwarehouses being used
by SPECTRADYNE for warehousing and storage on the Commencement Date ("Initial
Warehouse Space") with respect to (a) the finished goods inventory of
SPECTRADYNE Products and New SPECTRADYNE Products manufactured by CERPLEX
pursuant to this Agreement, (b) SPECTRADYNE's inventory of field installation
kits and equipment, (c) SPECTRADYNE's inventory of obsolete raw materials used
or previously used in the production of SPECTRADYNE Products, and (d) such other
items as requested by SPECTRADYNE from time to time. Both the cost of the
Initial Warehouse Space and the cost of such warehousing services shall be
included in the price for SPECTRADYNE Products charged pursuant to Article 8 of
this Agreement and in any price quoted by CERPLEX for any New SPECTRADYNE
Product. CERPLEX may separately charge for the cost of warehousing services,
and pass through to SPECTRADYNE without mark-up the cost of warehouse and
storage space, for any warehouse space in excess of the Initial Warehouse Space.
3.12.2 LOCATION OF STORAGE. CERPLEX's warehousing, inventory
management, and storage services as set forth above shall be carried out
initially at SPECTRADYNE's existing warehouse facilities and at such other
warehouse facilities as CERPLEX may determine. SPECTRADYNE shall arrange for
CERPLEX to have the use of SPECTRADYNE's existing off-site warehouse facilities.
SPECTRADYNE and CERPLEX shall consult with each other to determine if it is
advisable to sublease or assign SPECTRADYNE's existing off-site warehouse
facilities to CERPLEX. Any warehouse facilities used by CERPLEX shall be either
under the control and supervision of CERPLEX or in a bonded public warehouse.
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3.12.3 REPORTS. CERPLEX shall maintain accurate records of, and
shall provide monthly activity reports and a perpetual balance and
reconciliation to SPECTRADYNE with respect to, the inventory of products as to
which CERPLEX is providing warehousing services. CERPLEX shall, upon request by
SPECTRADYNE, allow SPECTRADYNE or its designated representatives access to
warehouse space and to the inventory records maintained by CERPLEX. SPECTRADYNE
shall have the right, at its expense, to audit the inventory and warehouse
records of CERPLEX periodically.
3.12.4 SHRINKAGE. Upon the termination or expiration of this
Agreement and upon each Anniversary Date, CERPLEX shall conduct an inventory of
the products as to which CERPLEX is providing warehousing services. SPECTRADYNE
may participate in such inventory to the extent SPECTRADYNE deems appropriate.
To the extent that CERPLEX through its records is unable to account for the
inventory of the products as to which CERPLEX is providing warehousing services
less 0.5% in dollar amount for shrinkage, then CERPLEX shall, at its option,
either procure replacements for SPECTRADYNE or pay to SPECTRADYNE an amount
equal to the fair market value of such unaccounted-for inventory in excess of
such shrinkage allowance.
3.13 MANUFACTURING SUPPORT. CERPLEX acknowledges that manufacturing
engineering and production engineering support are an integral and essential
part of the current processes associated with the manufacture of SPECTRADYNE
Products. CERPLEX will provide such manufacturing engineering and production
engineering support services during the 12 months following the Commencement
Date at a level that is at least substantially similar to that which has
historically been required to manufacture SPECTRADYME Products during the 12-
month period preceding the Closing Date at no additional cost to SPECTRADYNE.
After said 12-month period, CERPLEX shall provide at no additional cost to
SPECTRADYNE on an ongoing basis that level of manufacturing engineering and
production engineering support as is customarily provided to customers by
contract manufacturers.
ARTICLE 4
CERPLEX RIGHTS OF ACCESS AND OCCUPANCY
OF CERTAIN OFFICE AND WAREHOUSE SPACE
4.1 LEASE OF SPECTRADYNE SPACE. CERPLEX shall have the right to use,
enjoy and occupy such space and related utilities and services as described and
on terms and conditions as set forth in that certain Lease by and between
SPECTRADYNE and CERPLEX of even date herewith, attached hereto as Exhibit 4.1
(the "Lease"). In the event this Agreement is terminated by either party or
this Agreement expires at the end of the Term, the Lease shall be terminable in
accordance with the provisions thereof.
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4.2 GENERAL.
4.2.1 ACCESS. Certain executives and designated employees of both
CERPLEX and SPECTRADYNE shall be permitted such access to the other party's
offices at the SPECTRADYNE Facilities as is reasonably necessary to permit the
performance or administration of this Agreement, provided that, if requested by
the other party, each such person will execute a Confidentiality Agreement, in
form and substance acceptable to the other party.
4.2.2 COOPERATION. The parties will cooperate with each other and
will act reasonably and in good faith in coordinating the efficient use of the
SPECTRADYNE Facilities.
ARTICLE 5
TRANSITION
5.1 COOPERATION AND ASSISTANCE. The parties shall cooperate in arranging
for an orderly, effective transition of the provision of services from
SPECTRADYNE to CERPLEX effective as of the Commencement Date and shall cooperate
in effectuating their respective obligations under this Agreement.
5.2 PERSONNEL.
5.2.1 TRANSFER OF PERSONNEL. SPECTRADYNE shall make available to
CERPLEX for job interviews all manufacturing and repair employees (including
managers) of SPECTRADYNE. CERPLEX shall interview and make conditional offers
of employment to all of the employees listed on Schedule 5.2 (the "Employees").
Before accepting such conditional offer of employment each Employee, shall be
required to resign his/her employment with SPECTRADYNE. SPECTRADYNE shall be
responsible for any costs, such as all vested and accrued costs for vacation,
pensions, and other employee benefits payable to such Employees in connection
with their resignation. The Employees who accept job offers shall commence
employment (conditioned on meeting post-offer conditions) with CERPLEX on the
Commencement Date (the "Start Date"). CERPLEX shall be liable for any and all
costs associated with such Employees from and after the Start Date. For one (1)
year after the Start Date, CERPLEX shall not, without SPECTRADYNE's consent,
employ any person who was a manufacturing and repair employee of SPECTRADYNE and
who was not given or who did not accept an offer of employment from CERPLEX
prior to the Start Date.
5.2.2 EMPLOYEE PLANS. There have been no prohibited transactions
or other breaches or violations of any law applicable to the Employee Plans that
would subject CERPLEX to any liability. No condition exists that will subject
CERPLEX or any of its employees to any material excise tax, penalty tax,
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fine or any other material liability related to any Employee Plan. There are no
agreements which will provide payments to any officer, employee, shareholder or
highly compensated individual which will be "parachute payments", under Section
28OG of the Code subject to tax under Section 4999 of the Code for which CERPLEX
would have any withholding liability.
5.2.3 WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT. Both before
and after the Commencement Date, CERPLEX and SPECTRADYNE shall cooperate with
each other to meet all requirements of the worker Adjustment and Retraining
Notification Act, 20 U.S.C. (S)(S) 2101-09.
5.2.4 NO HIRING OF OTHER PARTY'S EMPLOYEES. The parties agree
that during the Term of this Agreement and for six (6) months after the
termination or expiration of this Agreement neither party nor any of such
party's Affiliates will solicit, without the prior written consent of the other
party, any person employed then or within the preceding twelve (12) months by
such other party or such other party's Affiliates, except that in the event this
Agreement is terminated pursuant to Section 11.1 hereof, this provision shall
not apply to the non-breaching party.
5.3 DATA PROCESSING SUPPORT.
SPECTRADYNE shall continue at its expense to operate its systems and
data processing support services as currently operated in support of the
existing manufacturing operations as may be necessary to assist CERPLEX in
performing the Services under this Agreement for a period up to six (6) months
after the date of this Agreement or until CERPLEX completes installation of its
own systems and data processing support services.
ARTICLE 6
OPERATIONS MANAGEMENT
6.1 DESIGNATED REPRESENTATIVES.
6.1.1 APPOINTMENT AND DUTIES. CERPLEX and SPECTRADYNE shall each
appoint an individual (and one deputy to serve in the case of such individuals
absence) with overall responsibility for monitoring CERPLEX's performance of
Services and addressing any performance deficiencies under this Agreement (the
"Designated Representatives"). Subject to and in accordance with the terms and
requirements of this Agreement, the Designated Representatives (or their
deputies if a Designated Representative is absent) shall meet upon the request
of either party but at least monthly, to:
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(i) review CERPLEX's performance, coordinate the provision of
Services to SPECTRADYNE and discuss future SPECTRADYNE requirements;
(ii) ensure that adequate CERPLEX personnel are available and are
provided the tools, training and support necessary;
(iii) modify, pursuant to the terms and conditions in Section
6.2, Service requirements, response times, priorities for service and
performance standards by which the services shall be measured and managed as
provided herein;
(iv) serve as the principal interface between SPECTRADYNE and
CERPLEX with respect to all issues relating to the Services;
(v) review SPECTRADYNE responsibilities and any failure by
SPECTRADYNE to conform therewith;
(vi) discuss rate and pricing issues;
(vii) discuss and effect any other program management matter
that may arise from time to time; and
(viii) attempt to resolve any disputes hereunder in accordance
with Article 13 hereof.
6.2 SERVICE MODIFICATIONS. In the event that SPECTRADYNE wishes to
request modifications in the Services, including additions, deletions and
rearrangements ("Service Modifications"), SPECTRADYNE shall submit such requests
to CERPLEX in writing. CERPLEX will promptly provide SPECTRADYNE with good
faith estimates of the cost, if any, to SPECTRADYNE of such Service
Modifications and will advise as to the most cost effective, efficient means of
implementing such requested Service Modifications (the "Modification Estimate").
If SPECTRADYNE approves the Modification Estimate in writing to CERPLEX then
CERPLEX shall implement the Service Modification and SPECTRADYNE shall pay the
appropriate charges, if any, in accordance with the agreement of the parties as
confirmed in a written Modification Agreement.
6.3 MUTUAL COOPERATION. Each party agrees to provide all cooperation
reasonably necessary to effect additions, modifications, relocation and removals
of equipment, facilities and personnel requested by the other party necessary
for such party to meet its contractual commitments in a timely, efficient
manner.
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ARTICLE 7
SYSTEMS AND RELATED PROPRIETARY RIGHTS
7.1 PROPRIETARY INFORMATION. "Proprietary Information" shall include,
but not be limited to, all information communicated to one party by the other
during the Term of this Agreement which relates in any way to the communicating
party's business including, but not limited to, that information which
communicates directly or indirectly, the customer lists, pricing, methods,
processes, financial data, lists, statistics, software, systems or equipment,
programs, research, development, techniques, strategic plans, operating data, or
related information of each of the parties and/or its or their clients and
suppliers, concerning past, present, or future business activities of said
entities. Proprietary Information of SPECTRADYNE shall include certain
SPECTRADYNE assets used or useful in the manufacture or repair of the
SPECTRADYNE Products, New SPECTRADYNE Products, SPECTRADYNE FRUs, including but
not limited to, product-specific processes, technology (including, without
limitation, the Work, Proto-Build Services or other Services provided by CERPLEX
to SPECTRADYNE), tooling, production fixtures, automatic assembly equipment
fixtures and programs, test fixtures, test cabling and test programs
("SPECTRADYNE Production Assets"). Notwithstanding the foregoing, Proprietary
Information shall not include the following: (i) information which at the time
of disclosure is in the public domain, or which later becomes part of the public
domain by publication or otherwise through no breach of this Agreement and (ii)
information which either party can demonstrate was independently developed by
such party without reliance upon the Proprietary Information.
7.1.1. CIRCUMVENTION OF PROPRIETARY INFORMATION. The CERPLEX Parties
shall not reverse assemble, reverse compile, reverse interrogate, reverse decade
or reverse engineer the SPECTRADYNE Systems, including the Source Code or any
part thereof.
7.2 GRANT OF LICENSE. SPECTRADYNE grants to CERPLEX and CERPLEX accepts a
non-exclusive, indivisible, revocable and nontransferable license to use the
Intellectual Property Rights for the sole Purpose of using the Intellectual
Property Rights in the development, manufacture, repair, servicing, and testing
of, or incorporating or merging the Intellectual Property Rights into, the
SPECTRADYNE Products, or New SPECTRADYNE Products to be sold only to SPECTRADYNE
or its designee and repairing, modifying and/or refurbishing the same and the
SPECTRADYNE FRUs for SPECTRADYNE's sole use and benefit under the terms of this
Agreement. The license granted hereby shall not include any transfer (other than
the above license) from SPECTRADYNE to CERPLEX of any of the SPECTRADYNE
Intellectual Property Rights. Each of the CERPLEX Parties acknowledge and agree
that the SPECTRADYNE
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Intellectual Property Rights shall remain the sole and exclusive property of
SPECTRADYNE.
7.2.1 DELIVERY OF SOURCE CODE. In conjunction with SPECTRADYNE's
delivery of the SPECTRADYNE Systems to CERPLEX, SPECTRADYNE shall deliver to
CERPLEX one (1) copy of the Source Code for the software described on Schedule
7.2 only in the most current version as of the date hereof for the software
listed on Schedule 7.2.
7.2.2 MODIFICATION AND USE OF SOURCE CODE. The license granted
hereby shall include the right to use of the Source Code to modify or enhance
the SPECTRADYNE Systems for the sole and explicit purpose of incorporating,
testing or merging the SPECTRADYNE Systems and any Enhancements thereto into the
SPECTRADYNE Products or the New SPECTRADYNE Products to be sold only to
SPECTRADYNE, or its designee, and repairing, modifying and/or refurbishing the
same and the SPECTRADYNE FRUs for SPECTRADYNE's sole use and benefit under the
terms of this Agreement. Any use of the Source Code and/or the SPECTRADYNE
System, which is not specifically authorized herein, shall be prohibited, unless
such use is specifically approved in writing by SPECTRADYNE. A separate license
shall be required for use of the SPECTRADYNE Systems, including any Source
Codes, in connection with any other Product, including, by way of example, the
manufacturing, developmentation, repair, testing or servicing of any Product,
and SPECTRADYNE shall have no obligation to grant or provide such license. Upon
request by SPECTRADYNE, CERPLEX shall deliver a list of all Enhancements made by
all of the CERPLEX Parties to date, and maintain all files respecting any
Enhancements for a period of at least five (5) years after the termination of
this Agreement. Any and all copies of the Source Code, in whole or in part,
delivered to or developed by SPECTRADYNE, any of the CERPLEX Parties or any
subcontractor hereunder shall remain and be the sole and exclusive property of
SPECTRADYNE.
7.2.3 EXPIRATION OF LICENSE. The license granted to CERPLEX
hereunder shall automatically and immediately expire upon the termination or
expiration of this Agreement, and the CERPLEX Parties shall have no right in or
claim to any of the Spectradyne Intellectual Property Rights or the Spectradyne
Property.
7.2.4 OWNERSHIP OF SPECTRADYNE PRODUCTION ASSETS. CERPLEX agrees
that any product-specific tooling, production fixtures, automatic assembly
equipment fixtures and programs, test fixtures, test cabling and test programs
that now exist or that are built by or caused to be built by CERPLEX and paid
for by SPECTRADYNE, as evidenced by a SPECTRADYNE purchase order therefor, are,
shall be, or shall become (as the case may be) and shall remain
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the property of SPECTRADYNE and shall be returned by CERPLEX to SPECTRADYNE upon
demand and in any case upon termination or cancellation of this Agreement.
7.3 LICENSE AGREEMENT TERMS. The grant of the license set forth in
Section 7.2 hereof is subject to the following terms and conditions:
7.3.1 ACCESS. The software programs shall be operated directly
only (i) by bona fide employees of CERPLEX and subcontractors approved pursuant
to Section 3.3; and (ii) on equipment that is under the control of CERPLEX,
unless other arrangements are necessary due to natural disaster or similar
emergency. Any and all copies of the source Code in the possession or control of
CERPLEX shall be kept in a secure, locked-up environment, which shall conform to
standard industry practices. The Source Code may not be removed from such
location without the prior written approval of SPECTRADYNE. Access to the Source
Code shall be limited to those employees of CERPLEX and of approved
subcontractors who need to have access to incorporate or merge the software into
the SPECTRADYNE Product. Each such employee shall sign and be bound by a
Confidentiality Agreement in the form of Exhibit A to this Agreement.
7.3.2 CONFIDENTIALITY. CERPLEX shall keep, and shall cause all
subcontractors and all affiliates of CERPLEX and all subsidiaries and affiliates
of the CERPLEX Parent to keep, the SPECTRADYNE Systems, SPECTRADYNE's
Proprietary Information, the SPECTRADYNE Products, and the New SPECTRADYNE
Products, confidential and shall not at any time allow the SPECTRADYNE Systems,
SPECTRADYNE's Proprietary Information, the SPECTRADYNE Products, the New
SPECTRADYNE Products, or any of their components or any Enhancements, or other
modifications to them, to be disclosed to third parties, transferred, pledged,
sold, assigned, leased or commercially exploited or marketed in any way, with or
without charge, by CERPLEX or its employees or agents, or any subcontractors, or
any affiliates of CERPLEX, or any subsidiaries and affiliates of the CERPLEX
Parent. Except to the extent, required for normal operation of the systems as
permitted by this Article, CERPLEX shall not permit the SPECTRADYNE Systems,
SPECTRADYNE's Proprietary Information, the SPECTRADYNE Products, or the New
SPECTRADYNE Products to be copied or reproduced, in whole or in part, by any
person or entity at any time.
7.3.3 NO COPIES. CERPLEX shall not, without the prior written
consent of SPECTRADYNE, copy, in whole or in part, the Source Code provided by
SPECTRADYNE under this Agreement. CERPLEX shall not recreate, or attempt to
recreate, or permit or help others to recreate, the Source Code by any means
whatsoever, including without limitation, derivation of the Source Code from any
copy or version of the SPECTRADYNE System. No more than one (1) copy of the
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Source Code shall be in CERPLEX's possession at any time without the prior
written consent of SPECTRADYNE. Any copy of the Source Code, in whole or in
part, delivered to CERPLEX by SPECTRADYNE, or made by CERPLEX pursuant to this
paragraph, is and shall be the property of SPECTRADYNE.
7.4 NO IMPLIED LICENSE. SPECTRADYNE is only granting CERPLEX the limited
license contained in Section 7.2 and CERPLEX shall have no implied license in or
to any part of SPECTRADYNE's Intellectual Property Rights, except as expressly
contemplated under this Agreement.
7.5 WORK FOR HIRE. CERPLEX, ON BEHALF OF ITSELF AND ITS PARENT,
SUBSIDIARIES AND AFFILIATES ("CERPLEX GROUP"), HEREBY IRREVOCABLY ASSIGNS TO
SPECTRADYNE AND SPECTRADYNE ACCEPTS ALL INTELLECTUAL PROPERTY RIGHTS THE CERPLEX
GROUP MAY HAVE, IF ANY, IN AND TO ANY SPECTRADYNE PROPERTY, INCLUDING, WITHOUT
LIMITATION, SUCH INTELLECTUAL PROPERTY RIGHTS THAT THE CERPLEX GROUP MAY MAKE,
CONCEIVE, OR DESIGN, ALONE OR WITH OTHERS, IN CONNECTION WITH PERFORMING THE
SERVICES OR THE WORK. EACH OF THE CERPLEX GROUP ACKNOWLEDGES AND AGREES THAT
ALL INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, MODIFICATIONS,
UPDATES, IMPROVEMENTS, ENHANCEMENTS, AND ANY OTHER CHANGES TO SPECTRADYNE'S
INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, TO ANY COMPUTER
PROGRAM OBJECT AND SOURCE CODES WITH REGARD TO SPECTRADYNE PROPERTY, CONCEIVED
OR DESIGNED BY ANY OF THE CERPLEX GROUP IN CONNECTION WITH THE SERVICES OR THE
WORK ARE, AND ARE INTENDED TO BE, WORKS FOR HIRE AND ARE THE PROPERTY OF
SPECTRADYNE; BUT TO THE EXTENT ANY SUCH INTELLECTUAL PROPERTY RIGHTS MAY NOT, BY
OPERATION OF LAW, BE WORKS FOR HIRE, THE CERPLEX GROUP, AND EACH MEMBER THEREOF,
EACH HEREBY IRREVOCABLY ASSIGNS TO SPECTRADYNE AND SPECTRADYNE ACCEPTS SUCH
ASSIGNMENT OF THE OWNERSHIP OF THE INTELLECTUAL PROPERTY RIGHTS, WHETHER
WRITTEN, DIAGRAM OR SOME OTHER FORM, AND WHETHER PUBLISHED OR UNPUBLISHED. EACH
OF THE CERPLEX GROUP WILL GIVE SPECTRADYNE ALL SUCH FURTHER ASSISTANCE
REASONABLY NECESSARY TO PERFECT SUCH RIGHTS, INCLUDING, BUT NOT LIMITED TO,
SUPPLYING SUPPORTING , DOCUMENTATION AND EXECUTING ANY INSTRUMENTS REQUIRED TO
REGISTER SUCH INTELLECTUAL PROPERTY RIGHTS.
7.6 CONFIDENTIALITY. Except as otherwise provided in this Agreement, the
parties agree that during the Term of this Agreement and for a period of two (2)
years from the date of its termination or expiration, including the termination
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or expiration of any extension period, Proprietary Information shall be
maintained in strict confidence; shall be used only for purposes of this
Agreement; and that no Proprietary Information shall be disclosed by the
recipient party, its Affiliates, agents or employees without the prior written
consent of the other party. Each party agrees to take all reasonable
precautions to prevent the disclosure of Proprietary Information.
7.7 LIMITED RESTRICTION. Notwithstanding any other provision of this
Article 7, nothing in this Article 7, or any other agreement or instrument
entered into by the CERPLEX Parties in connection with the transactions
contemplated hereby, shall limit, prohibit, or restrict the CERPLEX Parties'
right to use during the Term hereof or after any termination of this Agreement
any manufacturing, testing or repair process, technique, method or system, or
the know-how associated therewith that CERPLEX possessed prior to the date
hereof and used in connection with its performance of the Services or the Work
rendered to SPECTRADYNE hereunder ("CERPLEX Know-how") or any Enhancements of
the CERPLEX Know-how that are or may have been derived therefrom.
ARTICLE 8
PRICING
8.1 ANNUAL TARGET. At Closing, and thereafter every 30 days during the
Term, SPECTRADYNE will deliver to CERPLEX a minimum aggregate dollar purchase
target, with corresponding prices for the goods and services to be purchased,
for the immediately following 12-month period (the "Rolling Annual Target").
SPECTRADYNE shall be permitted to amend the minimum aggregate dollar purchase
target delivered at Closing (for the 12-month period commencing with the
Closing) upward only on or before February 1, 1994. So long as SPECTRADYNE
purchases from CERPLEX goods and services during each such Rolling Annual Target
period with an aggregate cost of at least equal to the Rolling Annual
Target,,the following pricing arrangements shall apply throughout the Term of
this Agreement:
8.1.1 PRICE SCHEDULE. Except as specified below and in Section 6.2
above, prices for any SPECTRADYNE Products manufactured by or for SPECTRADYNE
prior to Closing shall not exceed the prices as specified on Schedule 8.1
attached hereto. If SPECTRADYNE delivers to CERPLEX on or before February 1,
1994 an upwardly revised minimum aggregate dollar purchase target for the 12-
month period beginning with the Closing, CERPLEX shall make dollar volume price
adjustments using the same methodology used to generate Schedule 8.1, which
price adjustments shall, however, be prospective only and applicable only to
purchase orders delivered after the date such upwardly revised minimum aggregate
dollar purchase target is delivered to CERPLEX.
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8.1.2 NO PRICE INCREASE. If CERPLEX accepts a Rolling Annual Target,
the prices of goods and services may not be increased during the 12-month period
applicable to that Rolling Annual Target, subject to the provisions of Paragraph
8.2 below.
8.1.3 PURCHASE ORDERS. At the Closing, SPECTRADYNE shall place with
CERPLEX a 90-day firm purchase order. Every 30 days thereafter during the Term
SPECTRADYNE shall amend the existing firm purchase order to extend it for an
additional 30-day period with orders for such additional 30-day period. All
orders shall be placed on SPECTRADYNE's purchase order form attached hereto as
Schedule 8.1.3, which may be changed from time to time during the Term as the
parties may mutually agree, at prices established in the then applicable Rolling
Annual Target for each good or service included on such purchase order. Subject
to the provisions of Paragraph 8.6 below regarding long lead-time items, CERPLEX
shall fulfill each purchase order on a timely basis as provided in the purchase
order. If SPECTRADYNE cancels or modifies any purchase order outside of such
purchase order's terms and other than because of a CERPLEX default, the parties
will negotiate in good faith to reschedule the purchases provided for in such
purchase order. If the parties are not able to reach agreement following such
good faith negotiations, CERPLEX's damages shall be limited to the lesser of
CERPLEX's direct and unavoidable damages (after commercially reasonable efforts
to mitigate) from such cancellation or modification (including any applicable
third-party-supplier penalties for such cancellation or modification) or the
full purchase price under such purchase order. Under no circumstances will
SPECTRADYNE be liable for any cancellation penalties imposed by CERPLEX or for
any damages to CERPLEX for periods not covered by a firm purchase order.
8.2 PRICE INCREASES. CERPLEX may request a price increase with respect
to any goods and services it provides under this Agreement in connection with
each revised Rolling Annual Target, such price increase to be effective,
however, beginning with the last 30-day period in the 12-month period applicable
to such revised Rolling Annual Target. In such case, SPECTRADYNE may solicit and
receive bids from third parties with respect to the goods or services, or both,
as to which CERPLEX seeks a price increase. SPECTRADYNE shall negotiate in good
faith with CERPLEX as to the matter but shall remain free to select the third-
party bidder following such negotiations. The parties acknowledge that if such
good faith negotiations reach an impasse, this may result in SPECTRADYNE ceasing
to buy, and CERPLEX ceasing to supply, after the period applicable to the
immediately preceding Rolling Annual Target the goods and services as to which
CERPLEX seeks a price increase.
8.2.1 PRICE DISCUSSIONS. Notwithstanding anything in this Article
8, the parties agree that if pricing and cost issues arise during the course
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of performance of this Agreement, they will negotiate in good faith to resolve
any such issue to the mutual satisfaction of both parties.
8.3 COST SAVINGS. CERPLEX may propose design, production, process or
other changes in the goods and services offered by SPECTRADYNE with a view to
achieving cost savings. No such changes shall be implemented without
SPECTRADYNE's approval. If any such changes are accepted, the prices in the
Annual Target shall be reduced so as to reflect 50% of the cost savings realized
from such change.
8.4 "PROTO-BUILD" SERVICES. Engineering and "prototype-building"
services may be requested by SPECTRADYNE, and if requested will be provided by
CERPLEX, at a price to be mutually determined by the parties. SPECTRADYNE shall
have the right to purchase standard CERPLEX raw materials at CERPLEX's cost.
8.5 SHIPPING AND RECEIVING. Shipping and receiving services (including
tape shipments) shall be provided upon request for a fee of $3.00 per
transaction (each shipping/receiving document to constitute a separate
transaction).
8.6 LONG-LEAD ITEMS. CERPLEX shall advise SPECTRADYNE from time to
time of any components or materials requiring such lead time for delivery as
would prevent CERPLEX from meeting any delivery obligations under anticipated
SPECTRADYNE purchase orders based on Rolling Annual Targets and of any penalty
or cancellation charge that the third-party supplier of such components or
materials imposes for reduction or cancellation of an order. If SPECTRADYNE
specifically authorizes CERPLEX in writing to place advance orders for
particular amounts of such long lead-time items in anticipation of SPECTRADYNE
orders, and if any such orders are placed and later canceled or reduced due to
actions by SPECTRADYNE, then, to the extent that CERPLEX cannot with
commercially reasonable efforts either use such items for other purposes or
reduce or cancel its order with the third-party supplier without incurring a
penalty or cancellation charge, SPECTRADYNE shall be responsible for any and all
costs and charges, including without limitation, cancellation penalties imposed
on CERPLEX by the third-party supplier to the extent caused by SPECTRADYNE's
actions. If SPECTRADYNE fails to give such written assurances in a timely
fashion, then it shall be required either to accept any delay in delivery of
products ordered by it from CERPLEX of which it was previously advised or pay
any premium necessary to obtain the item in a timely fashion.
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ARTICLE 9
INVOICES AND PAYMENT
9.1 INVOICES. For all goods and services set forth on the Price
Schedule, CERPLEX shall invoice SPECTRADYNE on a weekly basis. For any new or
special services as described, CERPLEX shall invoice SPECTRADYNE on a monthly
basis. CERPLEX shall submit such invoices on or about the last day of each
relevant period and only for those billable items which have actually been
delivered to SPECTRADYNE on or prior to the invoice date. SPECTRADYNE shall have
audit rights to all CERPLEX figures presented on such invoices.
9.2 PAYMENT. SPECTRADYNE shall pay CERPLEX within fortyfive (45) days
after submission of each invoice. Except as provided in Article 13 in order to
enable CERPLEX to obtain financing with respect to the accounts receivable owing
from time to time from SPECTRADYNE to CERPLEX, SPECTRADYNE agrees not to off-set
any sums of any kind owing from CERPLEX to SPECTRADYNE against any invoice owing
to CERPLEX, and SPECTRADYNE agrees not to assert any counterclaim, or otherwise
refuse to pay, any of the invoices owing to CERPLEX based upon any present or
future indebtedness, liabilities, or other obligations or sums owing from
CERPLEX to SPECTRADYNE (including under the Lease).
9.3 TAXES. Payment of all federal, state and/or local taxes based on
Services provided under this Agreement shall be the responsibility of CERPLEX
including, without limitation, franchise taxes, state and local personal
property taxes, employment taxes for its employees and taxes based on the net
income of CERPLEX. SPECTRADYNE shall either (1) pay to CERPLEX all sales and
use taxes levied with respect to the Services or (2) issue a resale certificate
to CERPLEX for such Services. Each party shall reasonably cooperate with the
other in minimizing any applicable tax. CERPLEX shall promptly reimburse
SPECTRADYNE for the portion of any prepaid taxes relating to any period after
the Commencement Date.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 BY SPECTRADYNE. SPECTRADYNE represents and warrants to CERPLEX as
follows:
10.1.1 DUE INCORPORATION. SPECTRADYNE ( i) is a corporation duly
incorporated, validly existing and in good standing under the laws of Texas, and
(ii) has full corporate power to own, lease, and operate its properties and
assets, to conduct its business as that business is currently being conducted,
and
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to consummate the transactions contemplated by this Agreement to be consummated
by SPECTRADYNE.
10.1.2 DUE AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by it and constitutes a valid and binding agreement of
it, enforceable against it in accordance with this Agreement's terms, subject to
the effect of bankruptcy, insolvency, moratorium and other laws now or hereafter
in effect relating to and affecting the rights of creditors generally and to
equitable principles of general application.
10.1.3 NO CONFLICT. Neither the execution nor delivery by it of this
Agreement, nor the consummation by it of any of the transactions contemplated by
this Agreement, will result in the breach of any term or provisions of, or
constitute a default under, any charter provision or bylaw, order, law, rule or
regulation which is applicable to it or any material contracts with third-
parties.
10.2 BY CERPLEX. CERPLEX represents and warrants to SPECTRADYNE as follows:
10.2.1 DUE INCORPORATION. CERPLEX (i) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas, and (ii) has full corporate power to own, lease, and operate its
properties and assets, to conduct its business as that business is currently
being conducted, and to consummate the transactions contemplated by this
Agreement to be consummated by CERPLEX.
10.2.2 DUE AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by it and constitutes a valid and binding agreement of
it, enforceable against it in accordance with this Agreement's terms, subject to
the effect of bankruptcy, insolvency, moratorium and other laws now or hereafter
in effect relating to and affecting the rights of creditors generally and to
equitable principles of general application.
10.2.3 NO CONFLICT. Neither the execution nor delivery by it of this
Agreement, nor the consummation by it of any of the transactions contemplated by
this Agreement, will result in the breach of any term or provisions of, or
constitute a default under, any charter provision or bylaw, order, law, rule or
regulation which is applicable to it.
10.3 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The statements,
representations, warranties, indemnities, covenants and agreements made by each
of the parties hereto in the last sentence of Section 3.1, Sections 11.2.2,
11.2.3, 12.2 and Article 7 and Article 13 shall survive the Closing
indefinitely. All other statements, representations, warranties, indemnities,
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covenants and agreements made by each of the parties hereto shall survive for a
period of one (1) year.
ARTICLE 11
TERMINATION
11.1 TERMINATION.
11.1.1 TERMINATION FOR MATERIAL EVENT.
(a) CURE PERIOD. Except as otherwise provided in this Section
11.1, in the event of an occurrence of any material breach of this Agreement by
either party, which breach is not cured within thirty (30) days after receipt of
written notice of such breach (which notice shall specify in detail the matters
giving rise to the breach), then the non-breaching party may terminate this
Agreement forty-five (45) days after notice of termination is given.
(b) DELIVERY PERFORMANCE. In addition to SPECTRADYNE's rights
under Section 3.7, should more than 5% of products purchased by SPECTRADYNE from
CERPLEX in any 90-day period be delivered late, CERPLEX shall discuss the
situation with SPECTRADYNE, undertake a performance review, and take corrective
action to assure that such inadequate performance will not be repeated. If
CERPLEX fails to so act in a timely manner, or if the same problem reoccurs at
such levels, then, in addition, to any action for damages for such default,
SPECTRADYNE shall be free to terminate this Agreement on thirty (30) days notice
without penalty for early termination or cancellation of any orders.
(c) QUALITY PERFORMANCE. SPECTRADYNE shall define and implement a
product acceptance methodology for measuring product functionality and
performance based upon standard industry quality auditing practices using lot
sampling techniques, and shall make such methodology known to CERPLEX. In
addition to SPECTRADYNE's rights under Section 3.7, should more than 5% of
production deliveries or FRU deliveries (deliveries to be measured in number of
product lots delivered and not necessarily in absolute numbers of units
delivered) within any 90-day period be rejected by SPECTRADYNE for failure to
conform to SPECTRADYNE's product functionality or performance standards, CERPLEX
shall discuss the situation with SPECTRADYNE, undertake a performance review,
and take corrective action to assure that such inadequate performance will not
be repeated. If CERPLEX fails to so act in a timely manner, or if the same
problem reoccurs at such levels, then, in addition, to any action for damages
for such default, SPECTRADYNE shall be free to terminate this Agreement on
thirty (30) days notice without penalty for early termination or cancellation of
any orders.
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11.1.2 TERMINATION FOR NONPAYMENT BY SPECTRADYNE.
(a) In the event that SPECTRADYNE breaches its obligation to pay
any amount due to CERPLEX hereunder ("SPECTRADYNE Payment Breach") and does not
cure such breach within fifteen (15) days after being given written notice of
such breach by CERPLEX, then CERPLEX may terminate this Agreement fifteen (15)
days after notice of such termination is given. After notice of termination has
been given to SPECTRADYNE hereunder, then for any Services provided to
SPECTRADYNE by CERPLEX during the ensuing fifteen (15) day period, CERPLEX may
require that SPECTRADYNE pay cash on delivery.
(b) Notwithstanding anything to the contrary contained herein,
CERPLEX may not terminate this Agreement pursuant to this Section for
SPECTRADYNE's failure to pay to CERPLEX any amount that is due from SPECTRADYNE
if as to any invoice, SPECTRADYNE has paid any disputed amount into escrow and
submitted such dispute to arbitration as provided in Article 13 hereof, provided
that SPECTRADYNE makes payment for that portion of such invoice which it does
not dispute.
11.1.3 TERMINATION FOR INSOLVENCY. In the event that either party
hereto is the subject of any proceedings relating to its liquidation, insolvency
or for the appointment of a receiver or similar officer for it, makes an
assignment for the benefit of all or substantially all of its creditors or
enters into an agreement for the composition, extension or readjustment of all
or substantially all of its obligations, and the same has not been discharged or
terminated without any prejudice to the other party's rights or interests under
this Agreement within ninety (90) days of the date of such action then the other
party hereto may, by giving written notice thereof to such party, terminate this
Agreement as of a date specified in such notice of termination.
11.2 TERMINATION SUPPORT.
11.2.1 COOPERATION. CERPLEX agrees that, forty-five (45) days prior to
the termination or expiration of this Agreement for any reason, CERPLEX shall
use reasonable efforts to effect an orderly and efficient transition to a
successor provider of services and will provide to SPECTRADYNE or its designed
any and all termination assistance reasonably requested by SPECTRADYNE to allow
the Services to continue without interruption or adverse effect.
11.2.2 RETURN OF PROPERTY. Upon termination or expiration of this
Agreement, CERPLEX shall return to SPECTRADYNE all SPECTRADYNE assets and
property that may be in the possession of CERPLEX, including without limitation,
any (i) production fixtures and automatic assembly equipment fixtures
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and programs, (ii) equipment, (iii) materials, software, and equipment used in
testing, including test fixtures, test cabling and test programs, (iv) product-
specific tooling and (v) designs, drawings, blueprints, specifications, and data
(in whatever form).
11.2.3 TERMINATION AND EXPIRATION. Notwithstanding any other
provision contained herein to the contrary, in the event that any CERPLEX Party
breaches any of the provisions contained in Article 7 of this Agreement, which
breach is not cured within ten (10) business days after receipt of written
notice of such breach (which notice shall specify in detail the matters giving
rise to the breach), then, in addition to any and all other rights and remedies
SPECTRADYNE may have under this Agreement, or any other agreement between
SPECTRADYNE and CERPLEX, or under applicable law, SPECTRADYNE shall have the
right to terminate this Agreement and the license granted to CERPLEX hereunder
thirty (30) days after notice of termination is given. Upon termination and/or
expiration of this Agreement, CERPLEX shall deliver to SPECTRADYNE any and all
copies of any Source Code and all Enhancements thereto that the CERPLEX Parties
have in their possession or control and/or that shall have been made from, or
using any copy of the Source Code in CERPLEX Parties' possession or control at
any time, and CERPLEX shall sign a statement affirming that it has complied with
this provision.
11.2.4 RIGHT TO INJUNCTION. In the event that any CERPLEX Party
breaches any provision of Article 7 of this Agreement, then, in addition to any
and all rights and remedies SPECTRADYNE may have under this Agreement, any other
agreement with CERPLEX, or applicable law, SPECTRADYNE shall be entitled to
obtain preliminary and permanent injunctions, from a court of competent
jurisdiction, enjoining any and all such breaches, the parties acknowledging and
agreeing that SPECTRADYNE would be irreparably harmed by any and all such
breaches.
ARTICLE 12
INDEMNITIES
12.1 INDEMNIFICATION.
12.1.1 INDEMNIFICATION; RIGHTS AND REMEDIES.
(a) SPECTRADYNE shall indemnify CERPLEX for all losses imposed
upon or incurred by CERPLEX arising or resulting from events, conditions,
actions or omissions by SPECTRADYNE occurring prior to the Commencement Date
related to the Employee Plans, or the employment or termination of the
Employees, but only to the extent that such losses are wholly or partially
attributable to events, conditions, actions or omissions occurring prior or
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on to the Commencement Date. CERPLEX shall indemnify SPECTRADYNE for all losses
imposed upon SPECTRADYNE arising from events, conditions, actions or omissions
by CERPLEX occurring after the Commencement Date related to any employee plans,
or hiring, employment or termination of the Employees, but only to the extent
that such losses are wholly or partially attributable to events, conditions,
actions or omissions occurring after the Commencement Date.
(b) Notwithstanding any other provisions of this Agreement,
SPECTRADYNE agrees to indemnify and hold CERPLEX harmless from and against any
liabilities, costs or obligations, including attorneys' fees and disbursements,
resulting from (i) any and all claims for life insurance, disability and medical
benefits based on occurrences before the Start Date (including claims for
continuing treatment with respect to any accident or illness for which coverage
was so provided), whether such claims are asserted before, on or after the Start
Date, (ii) any and all other welfare and fringe benefits claims based on
occurrences before the Start Date, whether such claims are asserted before, on
or after the Start Date, (iii) any and all life insurance, disability, severance
(including severance claims based upon the transactions contemplated hereunder),
medical or other welfare and fringe benefits claims of any individual (or his
covered dependents) who retired from SPECTRADYNE on or before the Start Date or
who died before the Start Date and who had been employed at any time, regardless
of whether such claim is asserted before, on or after the Start Date and (iv)
any and all claims (including third party claims) under or with respect to any
pension or retirement plan or any plan of deferred compensation other than
SPECTRADYNE's Pension Plan.
(c) Notwithstanding any other provisions of this Agreement,
CERPLEX agrees to indemnify and hold SPECTRADYNE harmless from and against any
costs, liabilities or obligations, including attorney's fees and disbursements,
resulting from (a) any and all life insurance, disability or medical benefits
claims based on coverage provided to Employees under any plan maintained or
sponsored by CERPLEX after the Start Date, (b) any and all other welfare and
fringe benefits claims based on coverage provided to Employees under any plan
maintained or sponsored by CERPLEX after the Start Date and (c) any and all
claims under or with respect to any pension or retirement plan or any plan of
deferred compensation which CERPLEX sponsors, contributes to or otherwise
participates in on or after the Start Date.
12.1.2 INDEMNIFICATION RESPECTING REPRESENTATIONS. CERPLEX and
SPECTRADYNE shall indemnify, defend and hold harmless each other against all
claims, liabilities, losses, damage and expense including, but not limited to,
reasonable attorneys' fees, costs of investigations, costs of investigative,
judicial and administrative proceedings or appeals therefrom and costs of
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attachment or similar bonds) resulting from the fact that any of the
representations made by the other party shall be false in any material respect.
12.1.3 LIMITATION ON CONSEQUENTIAL DAMAGES. EXCEPT AS SET FORTH
IN SECTIONS 12.1.1 AND 12.1.2 ABOVE, NEITHER PARTY SHALL BE LIABLE UNDER THIS
AGREEMENT TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
TO THE OTHER PARTY OR TO ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION,
PENALTIES FOR FAILED OR DELAYED PERFORMANCE, DAMAGES FOR LOST PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, INDEMNITY, WARRANTY,
STRICT LIABILITY OR TORT AND REGARDLESS OF WHETHER SUCH PARTY HAS REASON TO KNOW
OR IN FACT KNOWS OF THE POSSIBILITY THEREOF.
12.2 INTELLECTUAL PROPERTY INDEMNITY. Each of the parties will indemnify,
defend and hold harmless the other from any and all claims, actions,
liabilities, damages, costs and expenses, including reasonable attorneys, fees
and costs of investigation in judicial and in administrative proceedings or
appeals therefrom and costs of attachment or similar bonds, arising out of any
third party claims of infringement of any patents, copyrights, licenses, trade
secrets, trademarks, service marks or any other proprietary right of the other
party, provided that the indemnifying party is notified as soon as practicable
of such claim. The indemnified party shall have the right to control the defense
of all such claims, lawsuits or other proceedings with counsel reasonably
satisfactory to the indemnified party and the indemnified party shall have the
right to participate in such proceedings. In no event shall the indemnified
party settle any such claim, lawsuit or proceeding without the indemnifying
party's prior approval. The above intellectual property indemnity shall survive
the termination or expiration of this Agreement, as provided above in Section
10.3.
ARTICLE 13
DISPUTES; ARBITRATION
All disputes shall be negotiated between the Designated Representatives (or
deputies as necessary) until the earlier of mutually acknowledged impasse or
thirty (30) days. Thereafter any unresolved controversy, claim or dispute
arising out of or in connection with the negotiation, performance or non-
performance of this Agreement, including, without limitation, the validity,
scope, and enforceability of this Agreement shall be solely and finally settled
by arbitration before a three-person panel in Dallas, Texas in accordance with
the Commercial Arbitration Rules then in effect of the American Arbitration
Association, or any successor organization. Either party hereto may demand
arbitration by written notice to the other party and to the American Arbitration
Association ("Demand for Arbitration"). Any Demand for Arbitration pursuant to
this Article 13 shall be
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made within one (1) year from the date that the dispute upon which the demand is
based arose. The arbitrators shall be named by the I American Arbitration
Association within ten (10) days of the service of the Demand for Arbitration.
Each arbitrator shall be admitted to practice law in Texas and shall comply with
the American Bar Association and American Arbitration Association's Code of
Ethics for neutral arbitrators. Judgment on any award by a majority of the
arbitrators shall be binding and may be entered in any court having jurisdiction
thereof. The parties intend that this agreement to arbitrate be valid, binding,
enforceable, and irrevocable. The terms of this Article 13 shall survive the
termination or expiration of this Agreement. In their award, the arbitrators
shall allocate against the losing party all costs of arbitration, including the
fees of the arbitrators, and reasonable attorneys, fees, costs, and expert
witness expenses of the parties. If commercially practicable, CERPLEX will
continue to provide the Services during the arbitration proceedings and, except
for disputed amounts that are the subject of an arbitration (which will be paid
into escrow as set forth below), SPECTRADYNE will continue to make payments to
CERPLEX under the terms and conditions of this Agreement during the period from
the date a notice of arbitration is served on any party until the date of any
final award. Any disputed amounts from either party will be paid into an escrow
account, structured by agreement of the parties, or as ordered by the
arbitrators if agreement cannot be reached, for distribution in accordance with
the arbitrators, award.
ARTICLE 14
MISCELLANEOUS
14.1 ASSIGNMENT. Neither party may assign this Agreement (other than to an
approved or permitted assignee as provided in, and subject to Sections 3.3 and
3.11) without the prior written consent of the other, which consent shall not be
unreasonably withheld.
14.2 BINDING NATURE OF THIS AGREEMENT. This Agreement shall bind the
parties and their successors and/or permitted assigns.
14.3 NOTICES. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be deemed
given if delivered personally or five days after mailing by certified or
registered mail, postage prepaid, return receipt requested, or upon transmission
pursuant to facsimile, or upon delivery by means of a nationally-recognized
overnight air courier service, to the parties, their successors in interest or
their assignees at the following addresses, or at such other addresses as the
parties may designate by written notice in the manner aforesaid:
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If to SPECTRADYNE: 1501 North Plano Road
Richardson, Texas 75081
Attn: Bart Guinn
With a Copy (not constituting notice) to:
Williams & Connolly
725 Twelfth Street, N.W.
Washington, D.C. 20005-3901
Attn: Jerry L. Shulman, Esq.
If to CERPLEX: The Cerplex Group, Inc.
3332 E. La Palma Avenue
Anaheim, California 92806
Attn: Chief Executive Officer
With a Copy (not constituting notice) to:
Brobeck, Phleger & Harrison
4675 MacArthur Court, Suite 1000
Newport Beach, California 92660-1836
Attn: Frederic A. Randall, Jr., Esq.
14.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts all of which taken together will constitute one and the same
instrument.
14.5 HEADINGS. The articles and sections headings and the table of contents
are for reference and convenience only and shall not be considered in the
interpretation of this Agreement.
14.6 RELATIONSHIP OF PARTIES. CERPLEX, in furnishing services to
SPECTRADYNE, is acting only as an independent contractor.
14.7 FURTHER ASSURANCES. Each of the parties agrees to do such further acts
and to execute and deliver such additional documents as are reasonably necessary
or appropriate to carry out the purpose and intent of this Agreement.
14.8 APPROVALS AND SIMILAR ACTIONS. Where agreement, approval, acceptance,
consent or similar action by either party is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld unless
specifically permitted by this Agreement.
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14.9 FORCE MAJEURE. The parties hereto shall not be responsible for any
failure or delay in the performance of any obligations hereunder caused by acts
of God, flood, fire, war or public enemy. Performance times shall be considered
extended for a period of time equivalent to the time lost because of any such
delay, provided that, in the event CERPLEX is delayed in its performance by
reason of such cause, no such extension shall be made unless notice thereof is
presented by CERPLEX to SPECTRADYNE in writing within ten (10) business days
after the start of the occurrence of such delay; no payment shall be made by
SPECTRADYNE for any fees or expenses incurred by CERPLEX by reason of such
delay, and CERPLEX shall use best efforts to perform its obligations during such
period of delay.
14.10 SEVERABILITY. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired.
14.11 NO WAIVER. No delay or omission by either party to exercise any
option, right or power it has under this Agreement shall impair or be construed
as a waiver of such option, right or power. A waiver by either party of any
covenant or breach shall not be construed to be a waiver of any succeeding
breach or of any other covenant. All waivers must be in writing and signed by
the party waiving its rights.
14.12 ATTORNEY'S FEES. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, or the collection of any judgment thereon, the prevailing party shall
be entitled to recover reasonable attorney's fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it may be
entitled.
14.13 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without regard to its conflicts
of laws principles.
14.14 SURVIVAL. All obligations contemplated to be performed, whether as a
whole or in part, after termination of this Agreement, shall in fact survive
after termination of this Agreement regardless of the basis for such
termination.
14.15 EXHIBITS AND SCHEDULES. The terms and conditions of any and all
Exhibits and Schedules to this Agreement, as amended from time to time by mutual
agreement and signature of the parties, are incorporated into the Agreement by
this reference and shall constitute a part of this Agreement as if fully set
forth herein. The parties hereto acknowledge that certain Schedules to this
Agreement will not be finalized on the Commencement Date. The parties
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agree to finalize all Schedules to this Agreement within sixty (60) days of the
Commencement Date.
14.16 AMENDMENTS. No amendment to, or change, waiver or discharge of any
provision of this Agreement shall be valid unless in writing and signed by any
authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
14.17 ENTIRE AGREEMENT. This Agreement, together with all Exhibits and
Schedules, constitutes the entire agreement of the parties and supersedes all
previous agreements, promises, representations, understandings and negotiations
between the parties, whether written or oral, with respect to the subject matter
hereof. In the event of a conflict between this Agreement and any Exhibits or
Schedules attached hereto, this Agreement shall govern.
14.18 COMPLIANCE WITH LAW. CERPLEX in performing the -Services covenants
that it shall comply with all applicable federal or state rules, regulations or
laws relating to the Services.
14.19 SECURITY, HEALTH AND SAFETY. Each party covenants that it will cause
its employees, while such employees are on premises owned or leased by any other
party, to comply with such other party's reasonable requirements regarding
security, health and safety and other such matters as provided in writing by
such party.
14.20 RIGHTS AND REMEDIES. Except as otherwise expressly provided herein,
the rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies any party could have at law or in equity or
otherwise.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Agreement to be executed by their respective corporate officers
thereunto duly authorized, for and on behalf of themselves and their successors
and assigns all as of the day and year first above written.
SPECTRADYNE CORPORATION, a Texas corporation
By:
----------------------------------------------
Al Jerome
President and Chief Executive Officer
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CERTECH TECHNOLOGY, INC., a Texas corporation
By:
----------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
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Exhibit 10.30
PERSONAL COMPUTER FUNCTIONALITY MANAGEMENT AGREEMENT
BETWEEN
SPI HOLDING, INC.
AND
EDS TECHNICAL PRODUCTS CORPORATION
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE
INDICATED IN THIS AGREEMENT WITH BRACKETS ([ ]).
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
AGREEMENT, TERM AND DEFINITIONS
<C> <S> <C>
1.1 Agreement....................................................... 1
1.2 Term............................................................ 2
1.3 Definitions..................................................... 2
ARTICLE II
PERSONAL COMPUTER FUNCTIONALITY REQUESTS AND LEASES
2.1 Personal Computer Functionality Request......................... 4
2.2 Leases.......................................................... 5
2.3 Facility Renewal................................................ 5
ARTICLE III
RIGHTS AND OBLIGATIONS UNDER LEASES
3.1 Inspection, Integration and Testing............................ 5
3.2 Installation................................................... 6
3.3 Transportation................................................. 6
3.4 Use of Personal Computer and Right of Quiet Enjoyment.......... 6
3.5 Risk of Loss................................................... 7
3.6 Insurance...................................................... 8
3.7 Event of Loss.................................................. 8
3.8 On-Site Service................................................ 9
3.9 Warranties and Remedies........................................ 10
3.10 Charges........................................................ 12
3.11 Taxes.......................................................... 12
3.12 Payment........................................................ 12
3.13 Assignment..................................................... 13
3.14 Interpretation of Payments in Certain Events................... 14
ARTICLE IV
RIGHTS AND OBLIGATIONS UPON
TERMINATION AND EXPIRATION OF LEASES
4.1 Events of Default.............................................. 14
4.2 Remedies for Events of Default................................. 15
4.3 EDS' Rights on Repossession.................................... 16
4.4 Obligations in the Event of Expiration or Termination.......... 17
4.5 Options Upon Expiration of Lease............................... 18
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V
PERFORMANCE REVIEW AND DISPUTE RESOLUTION
<C> <S> <C>
5.1 Performance Review............................................. 19
5.2 Dispute Resolution............................................. 19
ARTICLE VI
MISCELLANEOUS
6.1 Excusable Delays............................................... 21
6.2 UCC Financing Statements....................................... 21
6.3 Transaction Costs.............................................. 21
6.4 Waiver......................................................... 21
6.5 Public Disclosures............................................. 21
6.6 Notices........................................................ 21
6.7 Severability................................................... 22
6.8 Order of Priority.............................................. 23
6.9 Confidentiality................................................ 23
6.10 Time of the Essence............................................ 24
6.11 Relationship of the Parties.................................... 24
6.12 Governing Law.................................................. 24
6.13 Entire Agreement............................................... 24
</TABLE>
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SCHEDULES
Schedule 1.3(o) - Personal Computer Configurations
Schedule 1.3(t) - Service Offerings
Schedule 1.3(y) - SPI Hardware
Schedule 1.3(z) - SPI Software
Schedule 3.2 - Installation Procedures
Schedule 3.4 - Hardware and Vendor Software Provided by EDS
Schedule 3.6 - Stipulated Loss Values
Schedule 3.8(a)(i) - Exempt Sites
Schedule 3.10 - Charges
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PERSONAL COMPUTER FUNCTIONALITY AGREEMENT
This PERSONAL COMPUTER FUNCTIONALITY MANAGEMENT AGREEMENT (the "PCFM"),
dated July 28, 1993 (the "Effective Date"), is by and between SPI Holding, Inc.
("SPI") and EDS Technical Products Corporation ("EDS").
RECITALS
SPI desires that EDS provide a facility under which SPI may obtain certain
personal computer hardware, software and related integration, installation,
warranty and maintenance services provided by or through and financed by EDS,
SPI desires that such facility allow all such services to be bundled with
and relate to the obligations for the personal computer hardware and software
and constitute separate transactions under such facility, and
SPI desires to pay for all such personal computer hardware, software and
related integration, installation, warranty and maintenance services on a "cost-
per-seat-per-month" basis.
EDS agrees to perform all such obligations under the terms and conditions
of this PCFM and each Lease (as defined in Section 2.1).
ARTICLE I
AGREEMENT, TERM AND DEFINITIONS
1.1 Agreement. SPI and EDS agree to enter into Leases (as defined in Section
2.1) for Personal Computer Functionality (as defined in Section 1.3(p) below) in
accordance with the terms and conditions of this PCFM, and that SPI and EDS will
each have all rights and obligations as set forth under each such Lease and the
terms and conditions of this PCFM.
SPI and EDS will enter into a minimum of [ ] Leases under this PCFM, and,
prior to receiving the unconditional approvals and waivers, as the case may be,
described in Section 1.2 of the Phase I Information Technology Services
Agreement dated July 28, 1993, neither party will have any obligation to enter
into any other Leases thereafter until such time as such unconditional approvals
and waivers, as the case may be, are obtained, if ever. SPI will use
commercially reasonable efforts to obtain the unconditional approvals and
waivers, as the case may be, as described in such Section 1.2, and upon
receiving such approvals, Spectradyne and EDS will have the obligation to enter
into a total of [ ] Leases (which number will include the number of Leases
into which SPI and EDS have entered by such time as such unconditional approvals
and waivers as the case may be, have been obtained). EDS will have the same
rights as those of Electronic Data Systems Corporation under such Section 1.2,
and SPI will have all rights and obligations set forth in such Section 1.2.
<PAGE>
1.2 Term. The term of this PCFM will commence on the Effective Date and expire
on the tenth anniversary of the Effective Date, unless earlier terminated in
accordance with the provisions of Article IV. Notwithstanding the foregoing,
EDS' obligation to extend capital to finance the Leases for Personal Computer
Functionality (the "Facility") will expire upon the earlier of (i) the first
anniversary of the Effective Date, (ii) EDS' expenditure of capital in
connection with SPI and EDS entering into [ ] Leases for Personal Computer
Functionality (as such term is defined in Section 1.3(p)) at a rate of [ ] per
Lease per month for a period of 60 months for each such Personal Computer
Functionality and [ ] Leases for Personal Computer Functionality at a rate of
[ ] per Lease per month for a period of 60 months for each such Personal
Computer Functionality or (iii) any termination of this PCFM in accordance with
the provisions of Article IV. This PCFM, including without limitation the
Facility provided by EDS to SPI, may be extended by written agreement of SPI and
EDS.
1.3 Definitions. As used in this PCFM, the following terms will have the
respective meaning set forth below:
(a) "Business Day" means a day other than (i) Saturday, Sunday and (ii) any
day on which the principal commercial banks located in Texas are authorized
or obligated to close under the laws of Texas.
(b) "Commencement Date" has the meaning set forth in Section 3.12.
(c) "Confidential Information" has the meaning set forth in Section 6.9(a).
(d) "Coverage Time" has the meaning set forth in Section 3.8 (a).
(e) "EDS" has the meaning set forth in the Preamble.
(f) "EDS Software" has the meaning set forth in Section 1.3(ab) of the
Phase 1 Information Technology Services Agreement dated on or about July
28, 1993 by and between Spectradyne, Inc. and Electronic Data Systems
Corporation.
(g) "Effective Date" has the meaning set forth in the Preamble.
(h) "Event of Default" has the meaning set forth in Section 4.1.
(i) "Event of Loss" has the meaning set forth in Section 3.5.
(j) "Facility" has the meaning set forth in Section 1.2.
(k) "Hardware" means computers and related equipment, including but not
limited to, central processing units and other processors; peripheral
devices such as storage devices, printers, terminals and other input and
output devices; and/or other tangible mechanical and electronic equipment,
such as
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controllers, modems, communications and telecommunications equipment
(voice, data and video) and networks intended for the input, storage,
manipulation communication, transmission and retrieval of information and
data.
(l) "Lease" has the meaning set forth in Section 2.1.
(m) "PCFM" has the meaning set forth in the Preamble.
(n) "PC Installation Site" means the location designated in an Personal
Computer Functionality Request where a Personal Computer described in such
Request will be installed.
(o) "Personal Computer" means the Hardware and Software integrated by EDS
in accordance with a configuration set forth in Schedule 1.3(o), as amended
upon the mutual agreement of SPI and EDS, selected by SPI and identified in
a Personal Computer Functionality Request.
(p) "Personal Computer Functionality" means SPI's selection, as set forth
in a Personal Computer Functionality Request, of one of the Personal
Computer configurations set forth in Schedule 1.3(o) bundled with SPI's
selection of one of the Service Offerings set forth in Schedule 1.3(t).
(q) "Personal Computer Functionality Request" has the meaning set forth in
Section 2.1.
(r) "Phase I Information Technology Services Agreement" means that certain
agreement between SPI and Electronic Data Systems Corporation dated on or
about July 16, 1993.
(s) "Remaining Lease Term" has the meaning set forth in Section 4.3(a).
(t) "Service Offering" means the package of services selected by SPI from
those set forth in Schedule 1.3(t).
(u) "Service Request" has the meaning set forth in Section 3.8.
(v) "Software" means computer programs together with input and output
formats, program listings, narrative descriptions, operating instructions
and supporting documentation and will include the tangible media upon which
such programs and documentation are recorded. The term "software" does not
include SPI Programming.
(w) "Spectradyne" means Spectradyne, Inc., a wholly-owned subsidiary of
SPI.
(x) "SPI" has the meaning set forth in the Preamble.
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(y) "SPI Hardware" means that Hardware set forth in Schedule 1.3(y), as
amended from time to time upon the mutual agreement of SPI and EDS, which
Hardware will be provided by SPI to EDS without charge to EDS to be
integrated by EDS into a Personal Computer and in which title or all other
rights necessary to use are vested in SPI.
(z) "SPI Software" means the Software owned by SPI or Spectradyne, as the
case may be, and identified in Schedule 1.3(z), as such Schedule may be
amended from time to time upon the mutual agreement of SPI and EDS.
(aa) "Stipulated Loss Value" has the meaning set forth in Section 3.5.
(ab) "Vendor" means any person or entity that manufactures, publishes,
distributes or licenses, as the case may be, Hardware or Software.
(ac) "Vendor Software" means that Software the rights to which are licensed
or owned by a Vendor.
ARTICLE II
PERSONAL COMPUTER FUNCTIONALITY REQUESTS AND LEASES
2.1 Personal Computer Functionality Request. SPI will from time to time, as
set forth in Section 2.1(b) below, submit written requests to EDS for Personal
Computer Functionality. Each such request will incorporate the terms and
conditions of this PCFM and will specify (i) a Personal Computer, (ii) a Service
Offering, (iii) the PC Installation Site and (iv) SPI's desired installation
date (a request including all such information is referred herein as a "Personal
Computer Functionality Request"). (A Personal Computer Functionality Request
accepted by EDS is referred to in this PCFM as a "Lease".)
(a) If EDS is unable to install the Personal Computer on the date set forth
in the Personal Computer Functionality Request, EDS will notify SPI within
five Business Days after EDS' receipt of such Personal Computer
Functionality Request, and SPI and EDS will negotiate in good faith for the
installation of the Personal Computer and the commencement of the
corresponding Service Offering on a date mutually agreed to by SPI and EDS,
provided, however, that EDS will use commercially reasonable efforts to
install such Personal Computer and commence such Service Offering
expeditiously. EDS will accept each Personal Computer Functionality Request
issued in accordance with the provisions set forth above in this Section
2.1 (subject to such agreement on the installation date) and, based upon
such Request, enter into a Lease for Personal Computer Functionality in
accordance with Section 2.2.
(b) SPI will issue Personal Computer Functionality Requests and, subject to
the limitations set forth in Section 1.1, Section 1.2 and Section 2.2, SPI
and EDS will enter into Leases, and EDS will install each Personal
Computer, in accordance with the schedule set forth in the Transition Plan
developed under
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the Phase I Information Technology Services Agreement or such other
installation plan developed and mutually agreed to by SPI and EDS.
2.2 Leases. Each Lease will incorporate the terms and conditions of this PCFM
and constitutes a separate agreement. The term of each Lease will begin on the
Commencement Date (as defined in Section 3.12), and will continue in full force
until the fifth anniversary of the Commencement Date, unless terminated by
either party in accordance with the provisions of Article IV.
2.3 Facility Renewal. As is more specifically set forth in Section 4.4 and
Section 4.5, SPI will have the following options upon the expiration or
termination of each Lease: (i) return the Personal Computer to EDS, (ii)
purchase the Personal Computer for a nominal amount and not purchase any Service
Offering, (iii) purchase the Personal Computer for a nominal amount and purchase
a Service Offering or (iv) enter into a Lease for new Personal Computer
Functionality (which the election, SPI and EDS agree, will require a capital
commitment in addition to that described in Section 1.2(ii) above). If SPI
anticipates desiring to enter into Leases for new Personal Computer
Functionality (referred to by SPI and EDS as a technology refresh), then on or
about the fourth anniversary of the Effective Date, SPI and EDS will meet to
discuss the amount of such capital commitment and to consider whether or not
either party desires to renew the Facility.
ARTICLE III
RIGHTS AND OBLIGATIONS UNDER LEASES
3.1 Inspection, Integration and Testing. EDS will perform inspection,
integration and testing of Personal Computers in accordance with the
configurations set forth in Schedule 1.3(o).
(a) SPI Hardware. SPI may request that EDS integrate SPI Hardware into a
Personal Computer. EDS will perform such integration and will perform On-
Site Service on such SPI Hardware in accordance with Section 3.8, the
charges for which services are included in the charges set forth in Section
3.10.
(b) Licensing of Vendor Software. EDS will obtain all rights SPI and EDS
mutually agree are necessary and appropriate by SPI and EDS for SPI to use
throughout the term of each Lease any Vendor Software provided by or
through EDS and listed on Schedule 1.3(o). SPI agrees to comply with all
license agreements that may be required by Vendors in connection with SPI's
use of any such Vendor Software. SPI's obligation under this Section
3.1(b) includes without limitation Vendor Software delivered pre-loaded on
a Personal Computer where the applicable license agreement states that
SPI's obligations under such license arise with the breaking of the Vendor
Software packaging or some other act whether or not SPI has taken any such
act. If any such license agreement requires that an agreement be executed
and returned to the licensor, SPI agrees to execute and return such
agreement in accordance with such requirements.
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(c) Licensing of SPI Software. SPI represents and warrants that (i) SPI
has all rights necessary to provide to EDS SPI Software which is owned by
Spectradyne and (ii) to the extent that SPI requests that EDS integrate SPI
Software into a Personal Computer, SPI and EDS will have the rights and
obligations in such SPI Software set forth in the Phase I Information
Technology Services Agreement, including without limitation the provisions
of Section 11.3 and Section 14.1(d) (i) except that SPI will be the
indemnifying party and EDS will be the indemnified party and such provision
will apply only to the extent that it pertains to EDS' services related to
integrating SPI Software into a Personal Computer and SPI Software
integrated into a Personal Computer.
(d) Licensing of EDS Software. To the extent that SPI requests that EDS
integrate EDS Software into a Personal Computer, SPI and EDS will have the
rights and obligations in such EDS Software set forth in the Phase I
Information Technology Services Agreement, including without limitation the
provisions of Section 11.4 and Section 14.1(d)(ii) except that EDS will be
the indemnifying party and SPI will be the indemnified party and such
provision will only apply to the extent that it pertains to EDS Software
integrated into a Personal Computer.
3.2 Installation. EDS will install the Personal Computers in accordance with
the installation procedures set forth in Schedule 3.2. SPI will obtain all
necessary permissions, approvals, permits and other rights necessary to permit
EDS to install the Personal Computer in the desired location at the PC
Installation Site.
3.3 Transportation. Personal Computers will be delivered to the PC
Installation Site designated in the applicable Lease and in accordance with the
timetable set forth in the installation plan described in Section 2.1(b). The
method and mode of all required transportation, rigging, drayage, and insurance
will be those selected by EDS (the charges for which are included in the charges
under Section 3.10), except that EDS will not transport by overnight or other
expedited carrier unless stated on an Personal Computer Functionality Request or
unless EDS obtains the prior consent of SPI and SPI pays all charges for such
expedited transportation.
3.4 Use of Personal Computer and Right of Quiet Enjoyment. EDS will affix to the
Personal Computer, and each unit or element thereof, appropriate tags, decals or
plates provided by EDS indicating the ownership of such Personal Computer by
EDS, and SPI will not cause or permit any such tags, decals or plates to be
removed, defaced or covered in any way. SPI will use the Personal Computer
Functionality solely in the conduct of its business, in a manner and for the use
contemplated by the manufacturer thereof, and in compliance with all laws, rules
and regulations of every governmental authority having jurisdiction over the
Personal Computer. SPI will pay all costs, expenses, fees and charges incurred
in connection with the use and operation of the Personal Computer Functionality,
if any, other than those charges for EDS' obligations under this PCFM. So long
as SPI is not in default under the
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applicable Lease, EDS will not interfere with SPI's right of quiet enjoyment and
use of the Personal Computer. However, upon reasonable notice by (and at the
sole expense of) EDS, SPI will permit any person designated by EDS, at EDS's
expense, to visit and inspect the Personal Computer at such reasonable times and
places and as often as EDS may reasonably request.
Except as otherwise provided herein, the Personal Computer will be kept by SPI
in its sole possession and control and will at all times be located at the PC
Installation Site. SPI may relocate the Personal Computer within the continental
U.S., Alaska, Hawaii, Mexico, the Virgin Islands, Puerto Rico and Canada with
prior and written consent of EDS, which consent will not be unreasonably
withheld, delayed or conditioned. All costs and expenses of every nature which
may be incurred in connection with the permitted movement of the Personal
Computer Functionality between different locations will be borne by SPI, which
movement will be performed by EDS under the Phase I Information Technology
Services Agreement and subject to the charges set forth in Section 6(e) of
Schedule 9.1 of the Phase I Information Technology Services Agreement. SPI may
not upgrade, alter or make attachments to the Personal Computer without the
prior written consent of EDS, which consent will not be unreasonably withheld,
delayed or conditioned. If such consent is granted, SPI and EDS will amend the
Lease to reflect such change, including without limitation any increase in the
charges under such Lease, and, if, at the end of the term of this applicable
lease, EDS so requests, SPI will return, or request and pay all charges for EDS
to return, the Personal Computer to its original state, reasonable wear and tear
excepted, prior to returning the Personal Computer to EDS. If SPI wishes to
leave a SPI-provided upgrade, alteration or attachment on the Personal Computer,
SPI may do so provided (a) said change does not (i) reduce the value of the
Personal Computer or (ii) require any payment by EDS of any additional charges
related to disposal of such upgrade, alteration or attachment as a result of
legal, regulatory or other requirements related to the disposal of such upgrade,
alteration or attachment and (b) title thereto is transferred to EDS on the
expiration date of the applicable Lease. SPI will keep and maintain the Personal
Computer Functionality free and clear of all liens, charges and encumbrances
(except any placed thereon by EDS and liens, if any thereto, in favor of the
Agent and the Banks (as each such capitalized terms are defined in that certain
Agreement to make Secured Loans between SPI and Electronic Data Systems
Corporation dated on or about July 16, 1993) each of which liens will be junior
to that of EDS).
3.5 Risk of Loss. SPI will bear the risk of the Personal Computer being lost,
damaged, destroyed, stolen, confiscated or condemned (hereinafter called an
"Event of Loss") from any source (except as may be caused by EDS's or its
assignee's negligence or misconduct,) from the date of delivery of the Personal
Computer to SPI through and including the date upon which the Personal Computer
Functionality is returned to EDS (or its designee). If any Personal Computer, or
component thereof, is lost, destroyed or damaged, SPI will promptly repair,
restore or replace such Personal Computer, or component thereof, at its sole
cost and expense; provided, however, that SPI will not be required to make any
repair, restoration or replacement to the Personal Computer if SPI elects to
terminate the Lease for such Personal
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Computer and SPI pays the stipulated loss value (the "Stipulated Loss Value") in
accordance with Section 3.7.
In addition to the foregoing, as between EDS and SPI, EDS will be responsible
for any loss or damage to equipment to which the Personal Computer is attached
if and to the extent such loss or damage was caused by removal thereof and such
loss or damage was caused by EDS or its employees, agents or subcontractors, and
SPI will be responsible for any loss of or damage to the Personal Computer,
except as provided herein.
3.6 Insurance. SPI will obtain, pay for and maintain at all times until the
Personal Computer has been returned to EDS at the expiration of the Lease,
public liability, property damage, all risk, and fire and extended coverage
insurance with respect to the Personal Computer, in each case in such form as is
reasonably satisfactory to EDS. Such property damage insurance will be in an
amount at least equal to the greater of the replacement value of such Personal
Computer Functionality or the Stipulated Loss Value of such Personal Computer
Functionality determined as of the date of the occurrence of an Event of Loss in
accordance with Schedule 3.6. All policies will be issued by insurers recognized
internationally, reasonably satisfactory to EDS, and will name EDS as an
additional insured, and assignees, if any, as loss payee and provide that the
policies cannot be canceled or modified except on at least 30 days' prior
written notice to EDS. Evidence of such insurance will be delivered to EDS, and
in the case of renewals at least 30 days prior to the expiration of the current
policy.
3.7 Event of Loss. SPI will promptly and fully inform EDS after it has knowledge
of an Event of Loss. If an item of Personal Computer Functionality is damaged
beyond repair or stolen, destroyed or permanently rendered unfit, SPI will then
have the obligation to do either of the following within 60 days after the
occurrence of an Event of Loss: (i) pay EDS an amount equal to the Stipulated
Loss Value of the item of Personal Computer Functionality, computed as of the
date of such payment, less the amount received by EDS from the insurance carrier
referred to in Section 3.6. Upon payment of such Stipulated Loss Value, the
Lease will terminate with respect to such Personal Computer, and SPI Is
obligation to pay charges under the Lease will terminate as of the date on which
such Event of Loss occurred, except that SPI will pay to EDS charges under the
Lease which have accrued thereon (on a daily basis) and which remain unpaid on
the date of such termination; or (ii) at its expense, promptly replace the
affected Personal Computer with an identical item or comparable item with like
functionality and reliability, in good repair, condition and working order, free
and clear of all liens (except those liens permitted and described in Section
3.4). Any such replacement item will become the property of EDS and for the
purposes of the Lease be deemed to be the Personal Computer which it replaced.
The proceeds of any property damage insurance or condemnation award or other
payment in respect of a requisition or taking by any governmental authority,
received by EDS with respect to an Event of Loss will be applied by EDS (i)
first, as a credit against any accrued, unpaid charges under any Lease and (ii)
second, as a credit
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against, or a reimbursement of, such payment of Stipulated Loss Value by SPI,
and the excess of such payment over the Stipulated Loss Value will be paid to
SPI.
3.8 On-Site Service. EDS will perform On-Site Services in accordance with the
Service Offering specified in the Lease. If SPI or a customer of Spectradyne
determines that a Personal Computer is not operating properly, SPI may request
On-Site Service by calling EDS at 1-800-____-____ (a "Service Request"). All
Service Requests will include the location of the Personal Computer, model
number, serial number, manufacturer's name, a description of the problem, a
contact name and corresponding telephone number, and any other pertinent
information for each item of Hardware.
(a) Time of Performance of Hardware Services. EDS will perform On-Site
Services on the Personal Computer identified in a Service Request.
Hardware Services will be performed between the hours of 7:00 a.m. and
12:00 a.m. (midnight) according to that site's local time, Monday through
Sunday (the "Coverage Time"). If On-Site Services cannot be completed
during the Coverage Time, such On-Site Services will be resumed at 7:00
a.m. the next day or as soon thereafter as commercially reasonable efforts
permit. If no Service Offering is specified in a Personal Computer
Functionality Request, the following will constitute the Service Offering:
(i) Upon EDS' receipt of a Service Request, EDS will use commercially
reasonable efforts to have an authorized EDS representative arrive at
the Personal Computer requiring On-Site Services (other than those
Personal Computers located at the sites set forth in Schedule 3.8 (a)
(i) , which Schedule will include the applicable response times for
such sites therein) within four hours after the authorized EDS
representative is notified of such Service Request.
(ii) EDS will restore the Personal Computer Functionality within a
reasonable time after the arrival of the authorized EDS representative
at the Personal Computer requiring On-Site Services.
(b) Parts. EDS will maintain a supply of spare parts inventories in
accordance with the failure rates, repair times and spare part
replenishment recommendations published by the applicable Vendor. All such
parts will remain the property of EDS until incorporated into the Personal
Computer. If EDS stores spare parts on SPI's or Spectradyne's premises,
EDS may remove them at any time. When a part is removed from Personal
Computer and another is installed, the part removed will become the
property of EDS. Notwithstanding the foregoing, if SPI provides EDS with a
spare part to replace a SPI Hardware resident on or integrated into a
Personal Computer, the removed part will remain the property of SPI.
(c) Subcontracting. EDS represents and SPI acknowledges that EDS may
subcontract Service Requests to third parties to perform such repairs. In
such
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event, EDS will, nonetheless, be responsible for such subcontractor's
compliance with EDS' obligations under this PCFM.
(d) General Obligations of SPI. SPI will (i) prepare and maintain at each
location, at no expense to EDS, documentation in accordance with
instructions prescribed by Hardware Vendors and applicable codes, statutes,
regulations and standards, (ii) provide safe, clean and adequate work
spaces in each location, including heat, light, ventilation, electric
current and outlets for use by EDS and its representatives and (iii)
provide or cause to be provided to EDS and its representatives full and
free access to the Personal Computer and any other Hardware or other items
pertaining to the Personal Computer necessary for EDS to properly perform
On-Site Services. (To the extent that EDS has dispatched an employee or
agent that is on-site to perform an obligation under this PCFM or
Electronic Data Systems Corporation has dispatched an employee or agent to
perform an obligation under the Phase I Information Technology Services
Agreement, each such employee or agent will use commercially reasonable
efforts to check all consumable items at such site including, but not
limited to, paper, ribbons, printer cartridges and magnetic storage media
and other consumable items and, to the extent required and at SPI's
expense, replace such consumable items.) SPI will not perform any other
repairs, maintenance, alterations, or adjustments of or to any Personal
Computer. If requested by EDS, SPI will provide to EDS without charge all
technical documentation and diagnostic information that is in SPI's
possession or is accessible to SPI and that may be required for proper
servicing of the On-Site Service.
3.9 Warranties and Remedies. SPI and EDS will each have the following rights
and obligations:
(a) EDS Warranties. EDS warrants, as to any Hardware or Vendor Software
acquired by SPI by or through EDS pursuant to this PCFM and provided to SPI
under the applicable Lease, that (i) EDS has all necessary authority, right
and power to convey good and marketable title to all such Hardware and
licensing rights to all such Vendor Software, in each case subject to the
terms and conditions of this PCFM, and upon completion of such conveyance
SPI will have such title to such Hardware and such rights to such Vendor
Software, (ii) any such conveyance is in accordance with EDS' agreements
with any Vendor of such Hardware or Vendor Software and is not in violation
of or in conflict with any law, rule or regulation or any other EDS
agreement with any third party and (iii) Spectradyne will have the right to
use any licensed Vendor Software set forth in Schedule 1.3 (o) in
accordance with the terms and conditions of the applicable license.
EDS further warrants that each Personal Computer will be integrated in
accordance with the written specifications mutually agreed to by SPI and
EDS and that such integration will be performed in a good and workmanlike
manner in accordance with EDS' own internal standards for such integration
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and such mutually agreed to specifications. EDS will have no liability for
any impact on any vendor's warranty from integration by EDS in accordance
with SPI's integration specifications.
(b) Vendor Warranties. Each party represents and warrants that it will
provide to the other only Hardware and Software to which Vendor's
warranties will pass through or be assigned to the other and that each
party will pass through or assign to the other any Vendor's warranty that
the party providing such Hardware or Software then receives. SPI and EDS
each agree to look solely to the applicable Vendor for any and all warranty
claims respecting any Hardware or Vendor Software except for claims related
to EDS' warranty regarding integration set forth in Section 3.9 (a). In the
course of performing On-Site Services under Section 3.8, EDS will, at no
additional cost to SPI, exercise on SPI's behalf Vendor warranties
applicable to any Hardware and Vendor Software provided by either party and
integrated into a Personal Computer under this PCFM. With the exception of
Vendor warranties which EDS and SPI are able to exercise on SPI's behalf
and the warranties set forth above in this Section 3.9, all Hardware and
Vendor Software is provided on an "AS IS" basis without warranty.
(c) Disclaimer of Warranties. The warranties contained in Section 3.9 (a)
(iii) and Section 3.9 (b) are contingent upon proper use of Hardware and
Vendor Software. Except as set forth above in this Section 3.9, EDS
SUPPLIES THE PERSONAL COMPUTER "AS IS" AND, EDS MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE (i) OF ANY INFORMATION TECHNOLOGY
SERVICES, PERSONAL COMPUTER, HARDWARE, SOFTWARE, OR OTHER PRODUCTS AND
SERVICES PROVIDED UNDER THIS AGREEMENT OR (ii) ANY HARDWARE OR VENDOR
SOFTWARE PROVIDED BY OR THROUGH EDS TO SPI UNDER THIS AGREEMENT. No
representation or warranty made by any person, including any representative
of EDS, which is inconsistent or in conflict with, or in addition to the
terms of, such warranties will be binding upon EDS unless expressed in a
writing signed by a duly authorized representative of EDS. Except as
related to EDS's performance of integration services, SPI agrees to look
solely to the applicable Vendor for all warranty claims and all warranties
made by such Vendors are hereby assigned to SPI.
(d) Remedies. SPI's sole and exclusive remedy and EDS' sole and exclusive
liability for any breach of EDS' warranty provided under this Section 3.9
will be (at EDS' option) to repair, replace or credit SPI's account for any
improperly integrated Hardware or Vendor Software and defective Hardware or
Vendor Software procured by SPI from or through EDS under this PCFM or any
Lease. If EDS elects to make a repair or to effect a replacement, EDS will
have a reasonable time to make such repair or replacement. EDS will pay
all
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reasonable costs for any transportation, rigging, drayage and insurance
related to any such repair or replacement. Nothing in this first paragraph
of Section 3.9(d) will relieve Electronic Data Systems Corporation of any
obligation to comply with any performance criteria under the Phase I
Information Technology Services Agreement.
If the sole and exclusive remedy provided in this Section 3.9 (d) fails of
its essential purpose, then as an alternative sole and exclusive remedy,
SPI may recover ,from EDS, subject to the limitations set forth in Section
14.4 (d), Section 14.4 (e) and Section 14. 5 of the Phase I Information
Technology Services Agreement, direct damages incurred by SPI.
3.10 Charges. SPI will pay the amount set forth in Schedule 3.10, plus any
amounts under Section 3.11, for the Personal Computer Functionality in
accordance with the provisions of Section 3.12. Charges will set forth in
Schedule 3.10 are stated in U.S. dollars.
The charges set forth in Schedule 3.10 are the monthly amounts to be paid by
Spectradyne in accordance with Section 3.12 and include amounts for the
applicable Service Offering until the third anniversary of the Commencement Date
of such Lease. While such charge will remain constant throughout the term of the
Lease (unless otherwise agreed by the parties), such charge includes no amounts
for any Service Offering after such third anniversary of the Commencement Date.
On or about 90 days before the third anniversary of such Commencement Date, SPI
will notify EDS in writing that SPI will (i) pay an amount equal to [ ] on or
before such Commencement Date as payment in full of all charges related to
continuing such Service Offering for the remainder of the term of such Lease or
(ii) enter into good faith negotiations, within 5 Business Days after the date
on which EDS receives such written notice, for the renegotiation of the monthly
charge related to continuing such Service Offering for the remainder of the term
of such Lease to include, over time, such [ ] amount (albeit amortized over the
remaining term of the Lease) and such other amounts as SPI and EDS may mutually
agree. Spectradyne will have no right to forego such Service Offering for the
remainder of such Lease term.
3.11 Taxes. EDS will promptly report, file and pay to the proper taxing
jurisdiction, and SPI will pay EDS, for all sales, use, personal property taxes
and other tax or taxes now or hereafter imposed by any state, federal or local
government or other taxing authority with respect to this Lease (excluding,
however, any franchise taxes or any based upon or measured by the gross receipts
or payroll of EDS) , together with any fines, penalties or interest thereon that
are not caused by EDS's negligence or that did not result from EDS's failure to
remit such taxes in a timely manner. Except for sales, use or leasing tax, or
the like, which will be billed to and paid by SPI with each payment, SPI will
reimburse EDS upon receipt of EDS's invoice for same listing the location and
the Personal Computer Functionality being taxed.
3.12 Payment. SPI will have no obligation to pay any amount for the period
beginning on the date on which the Personal Computer is installed (meaning EDS'
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completion of the procedures set forth in Schedule 3.2) and ending on the last
day of the month in which the Personal Computer is installed.
SPI will pay as "interim rent" an amount equal to the charge described in
Section 3.10 for the month immediately following the month in which the Personal
Computer was installed and for each subsequent month until the day immediately
preceding the first day of the next calendar quarter (such first day of such
calendar quarter being the "Commencement Date") . All such "interim rents" will
be paid monthly. Thereafter, the charge for each Personal Computer will be due
and payable by SPI monthly in advance on the first Business Day of the month to
which such payment applies. Whenever any payment of a charge is not made when
due and remains unpaid for a period of 10 Business Days, SPI will pay interest
on such amount at the lesser of 14 percent and the maximum interest rate legally
permissible in the state where the Personal Computer is located which interest
rate will apply only to any and all past due amounts and only for the period
such amount remains due and unpaid.
Except as provided herein, SPI will promptly pay to EDS all charges due under
Section 3.10 and all other amounts payable by it under this PCFM and any Lease.
SPI agrees that its obligations to pay all such charges and other sums payable
hereunder and the rights of EDS or its assignee and to such charges are absolute
and unconditional and are not subject to any abatement, reduction, setoff,
defense, counterclaim or recoupment due or alleged to be due to, or by reason
of, any past, present or future claims which SPI may have against EDS, any
assignee, the Vendor or seller (even though seller may be a division of EDS), of
the Personal Computer or against any person for any reason whatsoever. Except as
set forth in Section 3.9 (d), SPI acknowledges that SPI I s remedies for
nonperformance under Section 3.8 will be solely those related to breach of
contract.
3.13 Assignment. Each Lease and this PCFM will be binding upon and will inure to
the benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that SPI and EDS will each have the following rights
and obligations:
(a) EDS' Right of Assignment. SPI acknowledges, understands and agrees
that EDS may assign to a bank, insurance company, or any other financing
institution, or any other person or agency that EDS may select, all or any
part of EDS's right, title and interest in, any one or more Leases under
this PCFM, all of the charges and other sums due or to become due, or at
any time owing or payable by SPI under any provisions hereof, and in and to
the Personal Computer, and SPI agrees that upon written request it will
promptly execute and return to EDS such forms of consent to assignment as
EDS' assignee may reasonably request. SPI agrees that after written notice
by EDS of any such assignment SPI will pay all charges payable by SPI
hereunder to such assignee or as directed by EDS whether or not this PCFM
is terminated by operation of law, or otherwise, except as provided herein.
SPI will not (a) assert against any such assignee any claims by way of
abatement, defense, set-
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off, counterclaim, recoupment or otherwise which SPI may have, (b) look to
such assignee to perform any of EDS's obligation hereunder or (c) terminate
or attempt to terminate this PCFM or any Lease on account of any default by
EDS. Notwithstanding the foregoing, nothing herein will be deemed to
relieve EDS of any of its obligations to SPI hereunder.
(b) SPI's Right of Assignment. SPI may not assign this Lease or any of
SPI's rights hereunder or sublease the Personal Computer Functionality or
its use without the prior written consent of EDS, which consent will not
be, unreasonably withheld, delayed or conditioned. Notwithstanding the
foregoing, SPI may, with prompt written notice to EDS, sublease any
Personal Computer Functionality to a subsidiary or affiliate of SPI without
EDS's permission. Any permitted assignment or sublease will not relieve
SPI of any of its obligations or liabilities hereunder.
3.14 Interpretation of Payments in Certain Events. If this PCFM or any Lease or
any of the monies issued thereunder is deemed to be a loan or a promissory note,
regardless of any provision contained in this PCFM or such Lease, no party(ies)
benefiting from this PCFM or such Lease will be entitled to receive, collect or
apply, as interest on any amount owing thereunder, any amount in excess of the
maximum rate of interest permitted by the laws of the State of Texas. If any
party(ies) benefiting from this PCFM or any Lease ever receives, collects or
applies as interest, any amount that would be construed as excessive interest
will be deemed a partial prepayment of principal and treated as such under the
applicable Lease; and, if the principal amount of the Lease is paid in full, any
remaining excess will be promptly paid to SPI. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
maximum lawful rate, EDS or any party entitled to the benefits of this PCFM or
the Lease will, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee or premium rather than
as interest; and, (ii) amortize, prorate, allocate and spread, in equal parts,
the total amount of interest throughout the entire contemplated term of the
applicable Lease. If the interest received for the actual period of existence
hereof exceeds the maximum lawful rate, the party(ies) benefiting from the Lease
will refund to SPI the amount of such excess or credit against the principal
amount under the applicable Lease, and in such event, no party(ies), benefiting
from this PCFM or the Lease will be subject to any penalties provided in any
laws for contracting for, charging for, or receiving interest in excess of the
maximum lawful rate.
ARTICLE IV
RIGHTS AND OBLIGATIONS UPON
TERMINATION AND EXPIRATION OF LEASES
4.1 Events of Default. The occurrence of any of the following constitutes an
event of default (the "Event of Default") hereunder:
(a) SPI fails to pay all or any portion of any charge or other payment
under this PCFM or any Lease when due and payable, and such failure
continues
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uncured for a period of five Business Days after SPI's receipt of written
notice from EDS of such failure.
(b) Any representation or warranty made in this PCFM or any Lease or in any
report, financial statement or other statement furnished pursuant to the
provisions of this PCFM or in any Lease is false or misleading in any
material respect as of the date it was made;
(c) SPI fails to duly observe or perform any obligation, covenant,
condition or agreement it makes under this PCFM and such failure continues
for a period of 30 days after SPI's receipt of written notice from EDS or
its assigns stating the failure;
(d) SPI is declared insolvent or bankrupt, is the subject of any
proceedings relating to its liquidation, insolvency or f or the appointment
of a receiver, conservator or similar officer for it, makes an assignment
for the benefit of all or substantially all of its creditors or enters into
an agreement for the composition, extension or readjustment of all or
substantially all of its obligations;
(e) An Event of Default on or breach of any other material obligation or
contract (including and limited to the Phase I Information Technology
Services Agreement, the Phase II Information Technology Services Agreement
and the Financial Agreement [as each of the last two terms are defined in
the Phase I Information Technology Services Agreement]) that SPI or
Spectradyne may have with EDS or its affiliates as a result of which EDS or
its affiliates accelerates payment of any such obligation, forecloses upon
any pledged collateral or terminates such agreement prior to the expiration
date set forth in such agreement after all applicable grace or cure periods
have run.
4.2 Remedies for Events of Default. If an Event of Default occurs and is not
cured within the applicable cure period, EDS may exercise any one or more of the
following remedies:
(a) Terminate this PCFM and SPI's rights hereunder, in which event SPI will
pay to EDS an amount equal to all unpaid charges to the date of such Lease
termination, plus, as liquidated damages for loss of the bargain and not as
a penalty, the Stipulated Loss Value determined in accordance with Schedule
3.6 to each Lease describing each of the Personal Computers, computed as of
the date of such occurrence;
(b) Proceed, by appropriate action or actions under Article V to enforce
performance by SPI of the applicable covenants of this PCFM or in any Lease
or to recover damages for the breach thereof;
(c) Subject always to any mandatory requirements of applicable law then in
effect as to each Personal Computer:
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(i) retake possession of the Personal Computer, without liability to
return to SPI any charges or other payments made under the applicable
Lease prior to the date on which EDS retakes possession or to perform
any On-Site Services after such date, free from all claims by SPI, by
directing SPI in writing to assemble the Personal Computer and deliver
the same to EDS at any place or places at which SPI then maintains
facilities for the maintenance or storage of equipment similar to the
Personal Computer or to any other place or places which may be
reasonably convenient to SPI and EDS, in which event SPI will, at its
own expense, immediately cause the Personal Computer to be moved to the
place or places so designated by EDS and there delivered to EDS, it
being understood (x) that SPI's obligation to deliver the Personal
Computer is of the essence to this PCFM and each Lease and that,
accordingly, upon application to a court of equity having jurisdiction,
EDS will be entitled to a decree requiring specific performance by SPI
of such obligation and (y) that EDS may, without charge, keep any of
the Personal Computers repossessed by EDS pursuant to this clause on
the premises of SPI pending further action by EDS as provided below; or
(ii) If SPI fails to deliver the Personal Computer in accordance with
Section 4.2(c)(i), personally, or by agents or attorney, remake
possession of the Personal Computer from SPI (and any items in or on
the Personal Computer Functionality at the time of repossession,
wherever such items may be, which items will be held temporarily for
SPI without liability on the part of EDS), after giving of notice by
process of law or otherwise, without liability to return to SPI any
charges or other payments theretofore made, free from all claims by
SPI, and for that purpose EDS may enter upon SPI's premises where the
Personal Computer is located, and remove such Personal Computer without
liability for suit, action or proceeding by SPI. SPI will use all
commercially reasonable; efforts to obtain all necessary permissions,
approvals, permits and other rights necessary to permit EDS to remove
the Personal Computer from the PC Installation Site, provided, however,
that if (1) the cost of obtaining such permits or approvals exceeds the
Stipulated Loss Value and (2) SPI is not prohibited from doing so by
court order or operation of law in either case in connection with any
bankruptcy proceedings, SPI may pay to EDS the Stipulated Loss Value.
EDS's right to recover the Personal Computer will not be hampered, but
EDS will be responsible for damages arising from breach of peace and/or
other actions of EDS, its assignee or agent.
4.3 EDS' Rights on Repossession. If EDS repossesses a Personal Computer, EDS
may, after taking possession, either rent or lease the Personal Computer
Functionality, in such manner, for such time and upon such terms as EDS may
determine or sell the Personal Computer Functionality at one or more public or
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private sales, in such manner, and at such time or times and upon such terms as
EDS may determine.
(a) If EDS enters into any lease of the Personal Computer Functionality,
the rents, received by EDS under such lease for the Remaining Lease Term
(as defined below in this Section 4.3(a)) respectively applicable to any
item of Personal Computer Functionality, will be applied to the payment of
(i) any expenses and fees (including reasonable and documented attorneys,
fees) incurred by EDS in retaking possession of, and removing, storing and
renting the Personal Computer Functionality; (ii) the reasonable costs and
expenses incurred by EDS in overhauling or repairing the same; (iii) the
charges then remaining unpaid under the Lease; and (iv) any and all sums
then owing to EDS by SPI hereunder. The remaining balance of such charges,
if any, will be payable to SPI, provided, however, that any charges
received by EDS under any Lease for any period commencing after the
expiration of the Remaining Lease Term applicable to such item of Personal
Computer Functionality will be retained by EDS. SPI will remain liable to
EDS to the extent that the aggregate amount of the sums referred to by
clauses (i) through (iv) of this Section 4.3(a) exceed the aggregate rental
received by EDS under such Lease for the respective Remaining Lease Term
applicable to the item of Personal Computer Functionality covered by such
Lease. The Remaining Lease Term with respect to any item of Personal
Computer Functionality will mean the period ending on the date which the
term of such Lease would have expired if an Event of Default hereunder had
not occurred.
(b) If EDS sells or otherwise disposes of (other than pursuant to a Lease)
any item of Personal Computer Functionality, the proceeds thereof will be
applied to the payment of (i) the amounts set forth in clauses (i), (ii)
and (iv) of Section 4.3 (a), (ii) the Charges accrued under the Lease but
unpaid up to the time of such sale or other disposition and (iii) the
Stipulated Loss Value determined as of the date of such sale or other
disposition under Section 3.7. The remaining balance of such proceeds if
any, will be paid to SPI. SPI Will remain liable to EDS to the extent that
the aggregate proceeds received by EDS in connection with the sale or other
disposition of the Personal Computer is insufficient to satisfy in full
those items described in clauses (i), (ii) and (iii) of this Section
4.3(b).
4.4 Obligations in the Event of Expiration or Termination. The Personal
Computer remains the personal property of EDS and may be removed at any time
after termination of the applicable Lease. If SPI elects to return the Personal
Computer other than in connection with entering into a new Lease under Section
4.5, upon termination or expiration of the Lease, SPI will surrender possession
of the Personal Computer in the same operating condition and appearance as when
received, reasonable wear and tear excepted. For each Personal Computer so
surrendered, EDS will arrange for shipping with a carrier acceptable to SPI and
SPI will promptly return the Personal Computer to a location in the continental
United States specified by EDS which will not exceed the cost of shipping the
Personal Computer to EDS's
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home office. SPI will prepare the Personal Computer for shipment by padded van,
not crated, and deliver the Personal Computer to EDS's loading dock (or
equivalent) one day after the last day of the initial term of the Lease or any
negotiated extensions of such Lease.
(a) Notice of Termination. EDS will notify SPI 90 days in advance of the
end of initial term of any Lease, or any negotiated extension of such Lease
(other than quarter-to-quarter extensions). Each Lease will be
automatically extended for a period of 90 days (or such other period as SPI
and EDS may mutually agree) unless one party notifies the other in writing
at least 60 days prior to the date on which such Lease expires of its
intent not to continue the Lease beyond such expiration date. If the
parties agree to extend the Lease beyond such expiration date, then the
Lease will be extended for the period agreed upon at the same quarterly
charge until terminated by either providing written notice the other as set
forth above in this Section 4.4 (a). Any notice of termination may not be
withdrawn without EDS' prior written consent.
(b) Restoration of Personal Computer. SPI will, at its own cost and
expense and within a reasonable period of time, the costs for which are not
in the charges under the Lease, replace all carts of the Personal Computer
that may (a) become worn out, or (b) suffer a loss with respect to which
SPI bears the risk of loss pursuant to Section 3.5. hereof with appropriate
replacement parts meeting the then current manufacturer's specifications
and any governmental regulation or requirement, free and clear of mortgage,
lien charge or encumbrance (and title thereto will vest in EDS immediately
upon installation, attachment or incorporation of the same in, on or into
such item of Personal Computer).
4.5 Options Upon Expiration of Lease. If EDS does not retrieve or SPI does not
return the Personal Computer, in each case under the provisions of Section 4.4,
SPI will exercise one of the following options upon the expiration of each
Lease:
(a) Purchase the Personal Computer. Provided SPI is not in default
hereunder, SPI may notify EDS of its intent to purchase the Personal
Computer in accordance with this Section 4.4(a). SPI will notify EDS at
least 60 days prior to the expiration of the initial term of the applicable
Lease or any extensions thereof and will have the following options:
(i) SPI may purchase the Personal Computer for a nominal amount and
not purchase any Service Offering, in which case after such payment is
received by EDS SPI and EDS will, with regard to such Personal
Computer, have no further obligation or liability to each other or
(ii) SPI may purchase the Personal Computer for a nominal amount and
purchase a Service Offering, in which case after such payment has been
received by EDS and SPI has notified EDS of the Service Offering
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SPI has selected, EDS will commence such Service Offering as of the
expiration date of the applicable Lease (unless such notice is given to
EDS after the expiration of such Lease, in which case EDS will commence
the Service Offering as soon as practicable after EDS receives such
notification from SPI).
If SPI exercises its option under this Section 4.4(b), SPI and EDS will
enter into an agreement for and pertaining only to such Service
Offering and with regard to such agreement, SPI and EDS will each have
all rights and obligations related to such Service Offering under this
PCFM including without limitation SPI's obligation to pay all charges
related to such Service Offering under Section 3.10 in accordance with
Section 3.12.
(b) Refresh the Technology. If SPI and EDS have agreed to renew the
Facility under Section 2.3, SPI may elect to replace the Personal Computer
Functionality with new Personal Computer Functionality by submitting a
Personal Computer Functionality Request and entering into a Lease for such
Personal Computer Functionality in accordance with Section 2.1. Spectradyne
will only have the right to refresh the technology or otherwise obtain
personal computers, peripherals and Software from a third party if EDS
elects not to renew the Facility.
If SPI exercises its option under this Section 4.4 (b), SPI and EDS will
enter into a Lease for and pertaining only to such new Personal Computer
Functionality, and except with regard to the terms of any renewed Facility
under Section 2.3, such Lease will provide that SPI and EDS will each have
all rights and obligations under this PCFM.
ARTICLE V
PERFORMANCE REVIEW AND DISPUTE RESOLUTION
5.1 Performance Review. In the event of any dispute or controversy between the
parties of any kind or nature, upon the written request of either party, each of
the parties will appoint a designated officer whose task it will be to meet for
the purpose of resolving such dispute or controversy or to negotiate for an
adjustment to any provision of this PCFM or any Lease needed to resolve such
dispute or controversy. Such officers will discuss the dispute or controversy
and negotiate in good faith in an effort to resolve the dispute or controversy
or renegotiate the applicable section or provision of this PCFM and each Lease
without the necessity of any formal proceeding relating thereto. No formal
proceedings for the judicial or arbitrational resolution of such dispute or
controversy may be commenced until either or both of the designated officers
conclude in good faith that amicable resolution through continued negotiation of
the matter in issue is not likely to occur.
5.2 Dispute Resolution. Except for those disputes where injunctive relief is the
desired remedy and except for patent, trademark, trade secret or copyright
claims
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brought by third parties, any dispute, controversy or claim arising out of or
related to this PCFM or any Lease, or the creation, validity, interpretation,
breach or termination of this PCFM or any Lease, and not resolved to the
satisfaction of the parties under Section 5.1 will be settled by binding
arbitration governed by the Commercial Arbitration Rules of the American
Arbitration Association. Any arbitration will be commenced and conducted using
the following procedure:
(a) Either party may demand arbitration in writing, stating the nature of
the controversy and naming the arbitrator selected by it.
(b) Within 15 days after such demand, the other party will name its
arbitrator, and the two named arbitrators will, within 15 days thereafter,
select the third arbitrator to serve on the arbitration panel. The two
arbitrators named by the parties may have prior relationships with the
naming party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, should be a
neutral participant with no prior working relationship with either party.
If the first two arbitrators are unable to reach agreement as to the third
arbitrator within such 15-day period for any reason, then the first 2
arbitrators will request the American Arbitration Association to select a
third arbitrator meeting the criteria for such arbitrator set forth above
in this Section 5.2(b).
(c) The arbitration proceeding will be held in Dallas, Texas.
(d) Each party will bear its own arbitration costs and expenses; provided,
however, that the arbitrators may modify the allocation of fees, costs and
expenses in the award in those cases where fairness dictates other than an
equal allocation between the parties.
(e) The arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing fair, speedy and cost effective
resolution of disputes. The arbitrators will reference the rules of
evidence of the Federal Rules of Civil Procedure then in effect in setting
the direction of such discovery.
(f) The award will be final and binding on the parties, and judgment on the
award may be entered in and enforced by any court of competent
jurisdiction.
(g) EDS will continue to provide the On-Site Services under the terms and
conditions of this PCFM and the applicable Lease during such period from
the date the notion of arbitration is served on one party until the date of
any final award.
(h) SPI will continue to pay all charges under all Leases in accordance
with Section 3.12.
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ARTICLE VI
MISCELLANEOUS
6.1 Excusable Delays. Each party is excused from performing its obligations
(except for SPI's payment obligations) for the time and to the extent it is
prevented from performance by a cause beyond its reasonable control, such as but
not limited to, delays in performance by the other or third parties (other than
subcontractors of EDS, for whose acts, omissions or delays EDS will remain
liable to SPI as if such acts, omissions or delays were those of EDS itself),
acts of God, war, civil disturbance, court order, or a labor dispute. Delays in
performance caused by failures or fluctuations in electrical power or equipment
or services necessary for performance that are not under the control of the
performing party, such as but not limited to, telecommunications equipment or
services, are considered Excusable Delays. Excusable delays are not defaults in
performance and are not grounds for termination for cause.
6.2 UCC Financing Statements. SPI will execute and deliver to EDS for filing
any Uniform Commercial Code financing statements or any other documents which
EDS may reasonably request to protect its interest in the Personal Computer.
6.3 Transaction Costs. SPI and EDS will each bear and be responsible for the
costs and expenses incurred in connection with the preparation, execution,
delivery and performance of this PCFM and each Lease.
6.4 Waiver. Any modification or waiver of any provision of this PCFM or any
Lease, or any consent to any departure by either party therefrom, will not be
effective in any event unless the same is in writing and signed by other party,
and then such modification, waiver or consent will be effective only in the
specific instance and for the specific purpose given. Any notice to or demand
on SPI or EDS in any event not specifically required of other party hereunder
will not entitle the party to any other or further notice or demand in the same,
similar, or other circumstances unless specifically required hereunder.
6.5 Public Disclosures. All media releases, public announcements and public
disclosures by either party or its employees, agents or representatives relating
to this PCFM and each Lease or the subject matter of this PCFM or such Lease,
excluding any announcement beyond the control of the disclosing party, will be
approved by the non-disclosing party in writing prior to release.
6.6 Notices. Notices required or permitted under this Agreement will be in
writing and deemed delivered (a) on the date of actual receipt if delivered by
mail, first class, postage prepaid, (b) when received if delivered by hand or
courier service or (c) when confirmed if transmitted by telegraph, telex,
telecopier or facsimile. The addresses of the parties, which may be changed
with written notice, are:
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If to EDS, to:
EDS Technical Products Corporation
1800 Jay Ell Drive
Richardson, Texas 75024
Attention: President
Telecopy: (214) 470-5099
With a copy (not constituting notice) to:
Electronic Data Systems Corporation
5400 Legacy Drive, H3-3A-05
Plano, Texas 75024
Attention: General Counsel
Telecopy: (214) 605-5617
If to SPI, to:
SPI, Inc.
1501 North Plano Road
Richardson, Texas 75081
Attention: Chief Executive officer
Telecopy: (214) 301-9234
With a copy to:
SPI, Inc.
1501 North Plano Road
Richardson, Texas 75081
Attention: General Counsel
Telecopy: (214) 301-9234
With a copy (not constituting notice) to:
Williams and Connolly
725 Twelfth Street, N.W.
Washington, D.C. 20005
Attention: Jerry Shulman
Telecopy: (202) 434-5029
6.7 Severability. If any provision of this PCFM or any Lease is prohibited by,
or is unlawful or unenforceable under, any applicable law of any jurisdiction,
such provision will, as to such jurisdiction, be ineffective to the extent of
such prohibition without invalidating the remaining provisions hereof; provided,
however, that any such prohibition in any jurisdiction will not invalidate such
provision in any other jurisdiction; and provided, further, that where the
provisions of any such applicable law may be waived, that they hereby are waived
by SPI and EDS to the full extent
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permitted by law to the end that this PCFM and each Lease will be deemed to be a
valid and binding agreement in accordance with its terms.
6.8 Order of Priority. In the event of any conflict between the terms and
conditions of this PCFM and the terms of any Lease, the terms and conditions of
such Lease will prevail.
6.9 Confidentiality. SPI and EDS will have the following obligations with
regard to Confidential Information:
(a) "Confidential Information" means the terms and conditions of this
Agreement and that information which is: (i) written information received
from the other party which is clearly and prominently marked or identified
as confidential and (ii) oral or visual information which is identified as
confidential in writing to the receiving party within 30 days after
disclosure to the receiving party and which adequately and clearly
identifies such visual or oral information claimed as confidential
("Confidential Information").
(b) Each party will protect Confidential Information received from the
other party, before or after the Effective Date, using the same degree of
care such party uses to protect its own confidential information, but in no
event less than reasonable care.
(c) Each party will use Confidential Information received from the other
party only for the purpose of performing their obligations under this
Agreement.
(d) It will not be a breach of the obligations of this Section 6.9 to
disclose to the arbitrators Confidential Information required to be
disclosed in connection with the conduct of any binding arbitration
proceeding, provided that such disclosure is made pursuant to and in
accordance with the approval and at the direction of a majority of the
arbitrators conducting such arbitration.
(e) Confidential Information will not include information which is (i)
already known by the recipient party without an obligation of
confidentiality, (ii) publicly known through no unauthorized act of the
recipient party, (iii) rightfully received from a third party, (iv)
independently developed by the recipient party without use of the other
party's Confidential Information, (v) disclosed without similar
restrictions to a third party by the party owning the information or (vi)
approved by the other party for disclosure.
(f) Each party agrees to return any and all of Confidential Information to
its owner upon such owner's request.
(g) If either party is required to disclose any Confidential Information
pursuant to securities laws or any other laws or governmental regulations,
or
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pursuant to subpoena or other compulsory process, then the disclosing party
will use its best efforts and exercise all rights available to it (short of
risking damages, injunction or contempt findings) to (i) maintain the
confidentiality of the existence, terms and conditions of this Agreement,
(ii) to the extent it may lawfully do so, inform the other party of any
requests for disclosure made pursuant to the Freedom of Information Act or
any other law or government regulation or of any subpoena or other
compulsory process prior to making such disclosure and (iii) allow the
nondisclosing party to contest such request and, if applicable, participate
in any resulting proceedings through counsel of the non-disclosing party's
choosing and at the non-disclosing party's expense.
6.10 Time of the Essence. Time is of the essence in the Agreement and Schedules
attached hereof and each and all provisions of each Lease.
6.11 Relationship of the Parties. Notwithstanding anything to the contrary in
this PCFM or any Lease, EDS will act only as an independent contractor and under
no circumstances will EDS be deemed to be in any relationship with SPI carrying
with it fiduciary or trust responsibilities, whether through partnership or
otherwise. EDS has the sole right and obligation to supervise, manage, contract,
direct, procure, perform or cause to be performed the day-to-day work to be
performed by EDS under this PCFM or any Lease unless otherwise provided in this
PCFM or such Lease or agreed by the parties in writing.
6. 12 Governing Law. This PCFM and each Lease will be construed in accordance
with, and the rights of the parties will be governed by, the internal laws of
the State of Texas applicable to agreements entered into and intended to be
performed within the state, without regard to any otherwise applicable
principles of conflicts of laws.
6.13 Entire Agreement. This PCFM and each Lease constitutes the entire agreement
between EDS and SPI with respect to the subject matter hereof and supersedes and
cancels any prior understandings and agreement between EDS and SPI with respect
thereto. The individuals executing this PCFM do each hereby warrant and
represent that they respectively have been and are authorized by all necessary
and appropriate corporation action to execute this PCFM on behalf of their
respective principals as of the dates of their respective execution hereof.
There are no representations, understandings or agreements relating to this PCFM
and each Lease that are not fully expressed herein. No other representations,
understandings or arrangements have been made with respect to this PCFM and each
Lease and no future representations, understandings or arrangements will bind
either party until such time as they are reduced to writing and signed as an
amendment to this PCFM or the applicable Lease. All changes to this PCFM and
each Lease must be in writing and signed by the party against whom such change
would be enforced. The parties agree that any other terms or conditions included
in any purchase orders, quotes, acknowledgements, bills of lading or other forms
utilized or exchanged by the parties will not be incorporated herein or be
binding unless expressly agreed upon in writing by authorized representatives of
the parties.
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IN WITNESS WHEREOF, EDS and SPI have caused this PCFM to be executed as of
the date written above.
SPI HOLDING, INC. EDS TECHNICAL PRODUCTS
CORPORATION
By: _________________________ By: ______________________________
Name: Al Jerome Name: Robert L. Neighbors
Title: President & Chief Title: President
Executive Officer
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