EXHIBIT 10.28
VERIZON INFORMATION SERVICES INC.
c/o Verizon Communications Inc.
1095 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
February 14, 2002
TSI Telecommunication Services Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
TSI Telecommunication Holdings, Inc.
c/o GTCR Xxxxxx Xxxxxx, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Reference is made to that certain Amended and Restated Agreement of
Merger dated as of December 7, 2001, as amended and restated as of January 14,
2002, by and among TSI Telecommunication Holdings, Inc., a Delaware corporation
("Buyer"), TSI Merger Sub, Inc., a Delaware corporation, TSI Telecommunication
Services Inc., a Delaware corporation (the "Company"), and Verizon Information
Services Inc., a Delaware corporation ("Seller") (as amended through the date
hereof, the "Merger Agreement"). Capitalized terms used herein without
definition have the meanings set forth in the Merger Agreement.
In consideration for the mutual agreements set forth herein and Verizon
Information Technologies Inc.'s ("VITI") agreement to sign the Mainframe
Computing Services Agreement dated as of February 14, 2002 between VITI and the
Company (the "Mainframe Agreement") and the Distributed Processing Services
Agreement dated as of February 14, 2002 between VITI and the Company (the
"Distributed Agreement"):
(a) On the date hereof, Verizon will pay $500,000 in the aggregate to
acquire in its name third party software licenses necessary to allow
Verizon to provide services to the Surviving Corporation under the
Mainframe Agreement and the Distributed Agreement, and, to the
extent the cost of such third party software licenses is less than
$500,000, Verizon shall pay the Surviving Corporation the
difference. Except as set forth in the immediately preceding
sentence or as expressly referenced in the Mainframe Agreement or
the Distributed Agreement or for any third party software licenses
identified after the date hereof, the Company shall pay all costs
and expenses relating to the acquisition of any and all licenses
used by any party in the performance of services under the Mainframe
Agreement and the Distributed Agreement.
(b) Buyer and the Company agree that any software (including without
limitation the operating system) used by Verizon or its Affiliates
(other than the Company) to provide services to the Company, under
the Mainframe Agreement (i) shall to the extent such software
exists, be deemed to have been disclosed and included in Schedule
2.7(a) of the Seller Disclosure Schedules of the Merger Agreement
and (ii) shall not (other than for: (1) the materials and
information expressly required to be provided to Company pursuant to
the Mainframe Agreement; (2) electronic format of all Company data
included in third party libraries and history relating to such
Company data; (3) all materials and information VITI proposes to
provide to Company as set forth in the TSI Mainframe Migration
Support proposal dated February 11, 2002; and (4) all other data and
materials agreed in writing by Company and Seller) be the subject of
any ownership, rights or licenses under the Intellectual Property
Agreement, and shall not form the basis for any claim against
Verizon or its Affiliates that any claims pursuant to the Merger
Agreement or Intellectual Property Agreement that Buyer, the
Company, the Surviving Corporation or any vendor of the foregoing
have any rights or licenses or the right of access to, and Verizon
shall have no obligation to deliver to the Company or its vendor(s)
or license for use, such software (including without limitation the
operating system) that is used in the provision or use of any
services provided by Verizon or its Affiliates (other than the
Company) to the Company and is owned, in whole or in part, by
Verizon, Verizon Data Services Inc., VITI, any of their Affiliates
(other than the Company) or any third party. Buyer and the Surviving
Corporation hereby waive and release Verizon and its Affiliates from
the foregoing claims.
(c) For a period of sixty (60) days from the Effective Date (as defined
in the Mainframe Agreement), Seller shall cause VITI to continue to
provide the Company with access to the SAP, AP and Intranet
applications including Internet email services, relay of internet
mail through interwan, virus scanning, content filtering on internet
mail, intranet access, domain name and firewall protection. All
costs associated with the use of third party software in the
provision of the foregoing shall be as set forth above. During that
sixty (60) day period at no cost to the Company, Seller shall cause
VITI to make commercially reasonable efforts to identify an
alternative solution to the Company for such services. In the event
VITI is unable to identify such an alternative solution, or the
Company rejects VITI's recommended alternative solution, Seller
shall cause VITI to continue to provide access to the Company, but
only so much of such access as VITI is permitted to provide without
the payment of any compensation or consideration to any third party,
until June 1, 2002. Seller shall cause VITI to provide such access
to the Company, commencing with the Effective Date, on a
pass-through cost basis. Any and all costs associated with the
implementation of an alternative solution will be the responsibility
of the Company.
(d) The Company shall pay all costs and expenses relating to the
acquisition of any and all additional hardware requested after the
Closing Date by the Company to be used by any party in the
performance of services under the Mainframe Agreement and the
Distributed Agreement.
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(e) Receipt of payments required pursuant to Section 8.5.2 of the
Mainframe Agreement for termination for convenience by the Company,
together with the receipt of any and all payments due under this
letter agreement, shall be VITI's sole and exclusive remedy for such
termination.
(f) The text "any loss that results from gross negligence or willful
misconduct on the part of either party" shall be deemed deleted from
Section 19.3 of the Distributed Agreement and Section 17.3 of the
Mainframe Agreement.
(g) Section 18.1 of the Distributed Agreement and Section 16.1 of the
Mainframe Agreement shall be deemed amended to include that Seller
shall cause VITI not to enter into any settlement agreement with any
third party that affects Company and is the subject of indemnity
pursuant to either Section 18.1 of the Distributed Agreement or
Section 16.1 of the Mainframe Agreement without the prior consent of
Company, which consent shall not be unreasonably withheld.
In the event of any conflict between this letter agreement and the Merger
Agreement or any of the Related Agreements, this letter agreement shall control.
This letter agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements and
understandings of the parties in connection therewith.
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VERIZON INFORMATION SERVICES INC.
By: /s/ X. Xxxxxxx Xxxxxxx
Name: X. Xxxxxxx Xxxxxxx
Title: Authorized Representative
AGREED AND ACCEPTED:
TSI TELECOMMUNICATION SERVICES INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Associate General Counsel/
Assistant Secretary
TSI TELECOMMUNICATION HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
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