EXHIBIT 10.23
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "AGREEMENT") is made as of
February 14, 2002 by and between VERIZON INFORMATION SERVICES INC., a Delaware
corporation ("SELLER"), and TSI TELECOMMUNICATION SERVICES INC., a Delaware
corporation ("COMPANY").
W I T N E S S E T H
WHEREAS, Seller, the Company, TSI Telecommunication Holdings, Inc., a
Delaware corporation ("BUYER"), and TSI Merger Sub, Inc., a Delaware corporation
and a wholly owned Subsidiary of Buyer ("MERGER SUB"), are parties to that
certain Amended and Restated Agreement of Merger dated as of December 7, 2001,
as amended and restated as of January 14, 2002 (as amended through the date
hereof, the "MERGER AGREEMENT"), pursuant to which Buyer has agreed to acquire
the Company through a merger in which Merger Sub merges with and into the
Company, with the Company being the surviving corporation;
WHEREAS, Company has requested that Seller and its Affiliates provide
certain services to Company following the Closing, and Seller is willing to
provide such services on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties do hereby agree as follows:
Section 1. DEFINITIONS. Capitalized terms used in this Agreement but
not defined herein shall have the meanings given to them in the Merger
Agreement.
Section 2. SERVICES. During the term hereof, Seller shall, and shall
cause its Affiliates to, provide to Company the services listed in Schedule A
hereto at the levels (i.e., the hours and scope of service) and for the periods
of time set forth in Schedule A, including access to those employees of Seller
and its Affiliates and access to those office and computer support systems of
Seller and its Affiliates as are reasonably necessary to provide such services
(all of the foregoing being hereafter collectively referred to as the
"SERVICES"). To the extent that the Services include access to office and
computer support systems of Seller and its Affiliates, Company shall use such
offices and computer support systems solely for the purpose of receiving
Services. Seller shall, and shall cause its Affiliates to, assign such personnel
to perform the Services as are reasonably necessary to render the Services in
accordance with the terms of this Agreement (such personnel being hereinafter
referred to as the "PERSONNEL"). Seller and its Affiliates shall exercise
reasonable business judgment in providing the Services and shall otherwise
perform the Services consistent with the standards of timeliness, quality and
efficiency as they would apply to the performance of similar work performed for
themselves and their Affiliates.
Section 3. FEES; TERMINATION OF SERVICES. Seller and its Affiliates
shall provide the Services in exchange for the applicable monthly fees therefor
as set forth in Schedule A attached hereto. At any time, Company may deliver
written notice to Seller to terminate or reduce the scope of provision of any
Service, and Seller and its Affiliates will thereafter terminate or reduce the
scope of, as applicable, the provision or performance of such Service as soon as
is reasonably practicable, but in any event not later than 15 days after such
notice is given. For any Services terminated or reduced in accordance with this
Section at any time other than the last day of a calendar month, all monthly
fees shall be prorated, or, in the case of the reduction in a level of service,
reduced proportionately to reflect such reduction in service level, based on the
actual number of days during which the applicable Services were performed or
provided divided by the actual number of days in the calendar month in which
such Services are terminated or reduced; PROVIDED that, notwithstanding any
termination or reduction in any Service prior to the three-month anniversary of
the date hereof, Company shall pay Seller the aggregate amount of fees payable
for all Services delivered (and that would have been delivered but for such
termination or reduction) during the period beginning on the Closing Date and
ending on such three-month anniversary.
Section 4. INFORMATION TECHNOLOGY SERVICES.
(a) The Company acknowledges that Seller and its Affiliates may be
required to make capital expenditures and/or use certain licensed computer
software to provide Services involving information technology pursuant to this
Agreement. Upon Company's prior written consent (which consent shall not be
unreasonably withheld), the Company shall reimburse Seller and its Affiliates
for reasonable capital expenditures that are necessary for Seller and/or its
Affiliates to provide Services involving information technology in the manner
specified in Section 2 hereof and for any reasonable licensing fee to permit the
use of software in connection with providing Services under this Agreement.
(b) The parties recognize that their joint cooperation is needed to
enable each other to become independent of the other party's information systems
and support. To that end, and subject to the confidentiality requirements of
Section 5.9 of the Merger Agreement, each party hereby grants the other a
limited license to use its respective historical data and software (to the
extent permitted by and subject to restrictions in software licenses from third
parties) to the extent that such data and software is necessary for Seller
and/or its Affiliates (or permitted third parties) to provide Services
hereunder. Upon each party's request, the other party will provide such data and
software, in the format in which it currently exists, except to the extent
prohibited under applicable third party licenses. If any costs or expenses will
be incurred by Seller or Company in carrying out of such licenses, they will be
determined in accordance with the provisions of this Agreement and, subject to
prior written agreement by both parties, will be borne by the recipient of such
licenses. Company and Seller acknowledge that all of the data and software that
may be licensed to the other hereunder is licensed "AS IS" and without any
representation or warranty, including any representation or warranty of
merchantability or fitness for a particular purpose. Each of Company and Seller
covenants and agrees that any data or software licensed to it pursuant to this
Section 4 will be used by it and its respective agents only for purposes of
providing Services pursuant to this Agreement and that neither Company nor
Seller will cause or permit the use of any such data or software by any other
party or for any other purpose. The rights and licenses granted herein shall be
in addition to, and shall not affect
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the separate rights, licenses and joint-ownership grants set forth in the
Intellectual Property Agreement. Upon any expiration, termination or
cancellation of this Agreement, each party shall return to the other party all
copies of the data or software in its possession provided pursuant to this
Section 4, except for such data and software which are the subject of the rights
and licenses granted to the recipient party pursuant to the Intellectual
Property Agreement.
(c) Seller agrees to permit its and its Affiliates' vendors to
continue to support current and former employees of the Company and its
Subsidiaries on vendor systems as in effect on the Closing Date that are also
used to support current or former employees of Seller and its Affiliates without
limitation as to duration.
Section 5. CONFIDENTIALITY. All disclosures to Company, Buyer or any
of their Subsidiaries by Seller or any of its Affiliates pursuant to this
Agreement shall be subject to Section 5.9 of the Merger Agreement, and Company
shall, and shall cause its Subsidiaries, Buyer and Buyer's Subsidiaries to,
comply with the restrictions and obligations of Section 5.9 of the Merger
Agreement and with the use restrictions contained in this Agreement. All
disclosures to Seller or any of its Affiliates by Company or any of its
Subsidiaries pursuant to this Agreement shall be subject to Section 5.9 of the
Merger Agreement, and Seller shall, and shall cause its Affiliates to, comply
with the restrictions and obligations of Section 5.9 of the Merger Agreement and
with the use restrictions contained in this Agreement; PROVIDED that Seller and
its Affiliates may disclose Proprietary Business Information (as defined in the
Intellectual Property Agreement) (a) to any third Person to whom it delegates
its obligation to provide any Service to the extent necessary or desirable to
permit such Person to provide such Service or (b) to any third Person with whom
it contracts for services in connection with providing any Service to the extent
necessary or desirable for such Person to provide such service; PROVIDED FURTHER
that if Seller or any of its Affiliates make such disclosures to any such third
Person, Seller will advise such third Person of these confidentially obligations
and shall be liable for any breach thereof by such Person.
Section 6. INVOICING; PAYMENT. Not more than 30 days following the end
of each calendar month during the term of this Agreement, Seller shall invoice
Company for the Services performed under this Agreement during the preceding
calendar month. Company shall pay each such invoice in full in immediately
available funds within 30 days after the date of such invoice. If Company does
not pay Seller in accordance with the preceding sentence within 30 days after
the date of any invoice for Services hereunder, (i) all amounts so payable and
past due shall accrue interest from the 30th day after the date of such invoice
to the date of payment at 8% per annum and (ii) Company shall pay, as additional
fees, all costs and expenses incurred by Seller in attempting to collect and
collecting amounts due under this Agreement (including but not limited to
clauses (i) and (ii) of this sentence), including but not limited to all
reasonable attorneys fees and expenses. Company shall pay all such interest and
additional fees immediately upon Seller's written demand therefor.
Section 7. RESPONSIBILITY FOR PERSONNEL. (a) Seller shall have the
sole and exclusive responsibility for the Personnel, shall supervise the
Personnel and shall cause the Personnel to cooperate with Company and its
Affiliates in performing the Services. Seller shall pay and be responsible for
any and all premiums, contributions and taxes for workers' compensation
insurance, unemployment compensation and disability insurance and all similar
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provisions now or hereafter imposed by any federal, state or local governmental
authority that are imposed with respect to or measured by wages, salaries or
other compensation paid or to be paid by Seller to the Personnel.
(b) Each party shall cause its officers, employees, agents and
representatives to comply with all reasonable security policies and procedures
of the other party while on the premises of the other party.
Section 8. DISCLAIMER; LIMITED LIABILITY. (a) Seller makes no express
or implied representations, warranties, except as expressly provided in Section
2, or guarantees relating to the Services to be performed under this Agreement,
including, without limitation, any warranty of merchantability or fitness for a
particular purpose. However, upon Company's written request, Seller shall pass
through benefits of any express warranties received from third parties relating
to the Services and shall (at Company's expense) assist Company with any
warranty claims related thereto.
(b) Except as otherwise provided in Section 8(c) below, Seller and
its Affiliates shall not be liable, whether in negligence, breach of contract or
otherwise, for any expense, claim, loss or damage suffered or incurred by
Company or any other Person arising out of or in connection with the rendering
of a Service or any failure to provide a Service, except to the extent that such
damages are caused by the willful misconduct or gross negligence of Seller or
any of its Affiliates. In no event shall Seller or any of its Affiliates be
liable for any indirect, special, punitive, exemplary, incidental or
consequential expenses, claims, losses or damages of any kind, including,
without limitation, loss of profits or business interruption; PROVIDED, however,
that this sentence shall not apply to any actual, special or consequential
damages, including reasonable costs and expenses, directly arising out of
Seller's willful refusal to provide a Service.
(c) Seller agrees to indemnify and hold harmless Company and its
Affiliates from and against any expense, claim, loss or damage (including court
costs and reasonable attorneys' fees ("LOSSES")) suffered or incurred by Company
and/or any of its Affiliates in connection with either (i) any breach by Seller
or any of its Affiliates of its obligations under this Agreement or (ii) the
rendering of a Service or any failure to provide a Service, except, in the case
of this clause (ii), to the extent that such Losses are caused by the willful
misconduct or gross negligence of Company or any of its Affiliates.
(d) Company shall indemnify and hold harmless Seller and its
Affiliates from and against any and all losses, liabilities, damages, costs and
expenses incurred as a result of any breach by Company of its obligations
hereunder.
(e) Anything contained herein to the contrary notwithstanding, this
Agreement shall not constitute an agreement to provide Services or to make
available the benefits under any agreement or arrangement if doing so without
the consent of another party thereto would constitute a breach thereof, unless
such consent is obtained. If such consent is not obtained, or if providing the
Services or making the benefits under any such agreement or arrangement
available would affect Seller's right thereunder so that Company would not in
fact receive all such benefits, Seller shall upon the written request of Company
cooperate, at
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Company's sole expense, in any reasonable arrangement designed to provide the
benefits under any such agreement or arrangement. In addition, this Agreement
shall be of no force or effect with respect to Sellers' obligation to provide
any Services that are dependent upon any agreement or arrangement as to which
the other party thereto has objected in writing to making the benefits of such
agreement or arrangement available to Company.
Section 9. NON-SOLICITATION OF EMPLOYEES. For a period of one year
from the date of this Agreement, neither Company nor any of its Affiliates
shall, without the prior written approval of Seller, directly or indirectly,
solicit any employees of Seller or any of its Affiliates who are engaged in, or
were engaged in, providing Services to Company hereunder, to terminate their
relationship with Seller or such Affiliate, either for itself or for any other
person or entity. The foregoing shall not apply to individuals hired as a result
of the use of an independent employment agency (so long as the agency was not
directed to solicit a particular individual) or as a result of the use of a
general solicitation (such as a newspaper advertisement or on radio or
television) not directed to employees of Seller and its Affiliates providing
Services hereunder.
Section 10. SERVICES RELATED TO PAYROLL. If during any of the
Company's two payroll cycles immediately following the Closing Date ADP fails to
provide payroll services to the Company, (a) Seller shall deliver to the
Company, for distribution to each of the Company's employees, a paycheck payable
to each of the Company's employees in an amount equal to the net amount of the
paycheck delivered to such employee at the end of the last payroll cycle prior
to the Closing Date, (b) the Company shall, within two business days of its
receipt of such paychecks, pay to Seller cash in an amount equal to the
aggregate amount of all such paychecks, and (c) the Company shall be responsible
for paying to the appropriate Governmental Entities and other Persons all
amounts required to be withheld from each such employee's gross pay for any such
pay cycle, whether for taxes, employee benefits or otherwise.
Section 11. NOTICES; LIAISONS. Any notice or other communication
hereunder must be given in writing and (a) delivered in person, (b) transmitted
by telex, telefax or telecommunications mechanism, provided that any notice so
given is also mailed by certified or registered mail (postage prepaid), receipt
requested, or (c) sent by nationally recognized express delivery service to the
parties and at the addresses specified herein or to such other address or to
such other person as either party shall have last designated by such notice to
the other party. Each such notice or other communication shall be effective (i)
if given by telecommunication, when transmitted to the applicable number so
specified herein and an appropriate answerback is received, or (ii) if given by
any other means, when actually received at such address. Any notice or other
communication hereunder shall be delivered as follows:
If to Company, addressed to:
TSI Telecommunication Services Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Associate General Counsel
Facsimile: (000) 000-0000
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With copies to:
TSI Telecommunication Holdings, Inc.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and
Xxxxxx Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
If to Seller:
Verizon Information Services Inc.
c/o Verizon Communications Inc.
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
With copies to:
Verizon Communications Inc.
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
and
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O'Melveny & Xxxxx LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
Xxxxxx Kavalan on behalf of Seller and Xxxxx Xxxxxx on behalf of Company or such
other person(s) as either party shall have last designated by written notice to
the other party, shall serve as liaison persons to whom any informal
communication respecting any matter relating to this Agreement should first be
directed.
Section 12. TERM; SURVIVAL. (a) The term of this Agreement shall
commence as of the date hereof and shall end 30 days after the end of the last
service period on Schedule A, unless terminated earlier in accordance with the
provisions of this Agreement.
(b) Notwithstanding the foregoing paragraph (a):
(i) Seller may terminate this Agreement upon 10 days written
notice to Company upon Company's failure to pay all or any portion of any amount
owing to Seller when and as due hereunder unless payment is made during such
10-day period; PROVIDED that this clause (i) shall not apply to Company's
failure to pay any amount being disputed in good faith by Company after Seller's
receipt of written notice of such dispute;
(ii) Company may terminate this Agreement at any time upon
fifteen days prior written notice to Seller; PROVIDED that, notwithstanding any
termination of this Agreement by Company prior to the three-month anniversary of
the date hereof, Company shall pay Seller the aggregate amount of fees payable
for all Services delivered (and that would have been delivered but for such
termination) during the period beginning on the Closing Date and ending on such
three-month anniversary; and
(iii) either party may terminate this Agreement immediately upon
written notice to the other party upon the material breach or failure by the
other party to perform its obligations arising under this Agreement (other than
any nonpayment referred to in the preceding clause (i)), which material breach
or failure is not cured within fifteen days after written notice of such breach
or failure is given by the non-breaching party to the breaching party.
(c) Notwithstanding any provision hereof, Sections 5, 7, 8, 9, 13 and
21 shall survive any expiration or termination of this Agreement.
Section 13. NO THIRD PARTY BENEFICIARIES. Nothing herein expressed or
implied is intended to confer upon any person, other than the parties and their
respective permitted assignees, any rights, obligations or liabilities under or
by reason of this Agreement.
Section 14. NO ASSIGNMENT. Neither this Agreement nor any rights or
obligations under it are assignable or delegable by Company except that Company
may assign its express rights hereunder to (i) any wholly-owned subsidiary of
Buyer and (ii) any lenders of Company (as successor to Merger Sub) providing
financing for the transactions contemplated the
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Merger Agreement (and all extensions, renewals, replacements, refinancings and
refundings thereof in whole or in part) as collateral security for such
financing.
Section 15. INDEPENDENT CONTRACTOR. The parties hereto understand and
agree that this Agreement does not make either of them an agent or legal
representative of the other for any purpose whatsoever. No party is granted, by
this Agreement or otherwise, any right or authority to assume or create any
obligation or responsibility, express or implied, on behalf of or in the name of
any other party or to bind any other party in any manner whatsoever. The parties
expressly acknowledge (i) that Seller is an independent contractor with respect
to Company and its Affiliates in all respects, including, without limitation,
the provision of the Services, and (ii) that the parties are not partners, joint
venturers, employees or agents of or with each other.
Section 16. NON-WAIVER. No failure or delay by any party in exercising
any remedy, right, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other remedy, right,
power or privilege.
Section 17. AMENDMENTS AND WAIVERS. This Agreement (including the
schedule hereto) may be amended only by agreement in writing of all parties. The
parties hereto agree that this Agreement (including the schedule hereto) also
shall not be amended in a manner adverse to Xxxxxx Commercial Paper Inc., as
administrative agent for the Company's senior secured credit facility, without
such entity's written consent, such consent not to be unreasonably withheld. No
waiver of any provision nor consent to any exception to the terms of this
Agreement shall be effective unless in writing and signed by the party to be
bound and then only to the specific purpose, extent and instance so provided.
Section 18. SEVERABILITY. Any provision of this Agreement that is held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction, provided that the
essential terms and conditions of this Agreement for both parties remain valid,
binding and enforceable and provided that the economic and legal substance of
the transactions contemplated is not affected in any manner materially adverse
to any party. In the event of any such determination, the parties agree to
negotiate in good faith to modify this Agreement to fulfill as closely as
possible the original intents and purposes hereof. To the extent permitted by
Law, the parties hereby to the same extent waive any provision of Law that
renders any provision hereof prohibited or unenforceable in any respect.
Section 19. FEES AND EXPENSES. In the event of any dispute arising out
of the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other relief to which it may be entitled, its reasonable
attorneys' fees and court costs incurred in litigating or otherwise settling or
resolving such dispute. If the prevailing party shall recover a judgment in any
such action or proceeding, such costs, expenses and attorneys' fees may be
included in and as part of such judgment.
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Section 20. FORCE MAJEURE; REDUCTION OF SERVICES. Neither party shall
be liable for any expense, loss or damage whatsoever arising out of any delay or
failure in the performance of its obligations pursuant to this Agreement to the
extent such delay or failure results from events beyond the control of that
party, including but not limited to acts of God, acts or regulations of any
Governmental Entity, war, riots, insurrection or other hostilities, accident,
fire, flood, strikes, lockouts, industrial disputes or shortages of fuel. Nor
shall any party be entitled to terminate this Agreement in respect of any such
delay or failure resulting from any such event.
Section 21. GOVERNING LAW. This Agreement and the legal relations
between the parties shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York applicable to contracts made
and performed in such State and without regard to conflicts of laws doctrines
(other than New York General Obligations Law, Section 5-1401).
Section 22. COUNTERPARTS. This Agreement and any amendments hereto or
any other agreement (or document) delivered pursuant hereto may be executed in
one or more counterparts and by different parties in separate counterparts. All
of such counterparts shall constitute one and the same agreement (or other
document) and shall become effective (unless otherwise provided therein) when
one or more counterparts have been signed by each party and delivered to the
other party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TSI TELECOMMUNICATION SERVICES INC.
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Title: Chief Executive Officer
VERIZON INFORMATION SERVICES INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: President
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Secretary
S-1
SCHEDULE A
TRANSITION SERVICES
Except as expressly provided in this Schedule A, the following
Services will be provided by Seller or one of its Affiliates to Company from the
Closing Date to August 14, 2002:
DESCRIPTION OF SERVICE FEE
---------------------- ---
1. Accounts payable services (including check writing) $10,000 per month
2. General ledger/SAP services $75,000 per month
3. Transferred Employees (as defined in the Merger Agreement and including On a monthly basis, the Company
eligible dependents in accordance with Section 6.1(e) of the Merger shall pay ADP any and all of
Agreement) shall stay on Verizon's medical,dental and vision plan after the its service fees and expenses,
Closing Date with deemed COBRA coverage (exclusive of FRP, which will be in as well as the cost of
transferred in accordance with Section 6.2(c)(5) of the Merger coverage under the Verizon COBRA
Agreement). arrangements (such cost of coverage
to be processed by ADP in accordance
- The Company shall contract with ADP to provide billing administration with normal Verizon practices for
to the health carriers for the COBRA coverage, and the Company shall be COBRA coverage).
responsible for any and all of ADP's fees and expenses in connection
therewith.
4. Payroll services $9,240 for two payroll cycles
- Seller will contract with ADP for the provision of payroll services
directly to Company; PROVIDED that, if ADP fails to provide such
services, Seller shall provide such services for the two payroll cycles
immediately following the Closing as set forth in Section 10.
