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EXHIBIT 10.28
TBS LEGAL DEPARTMENT
Draft: April 20, 1998
DatCenTerm-11
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Termination Agreement") is made and
entered into on the 23rd day of April, 1998 by and between Newport News
Shipbuilding and Dry Dock Company ("NNS"), a wholly-owned subsidiary of Newport
News Shipbuilding Inc. and Tenneco Business Services Inc., formerly known as
Tenneco Technology Services Inc., a wholly-owned subsidiary of Tenneco Inc.
RECITALS:
WHEREAS, on August 22, 1996 NNS and Tenneco Technology Services Inc.
("TTS") entered into (i) a Professional Services Agreement ("PSA"), a copy of
which is attached hereto as Exhibit A, pursuant to which TTS was to provide
certain mainframe data processing and distributed system services (the
"Services") to NNS and (ii) a Lease (the "Lease"), a copy of which is attached
hereto as Exhibit B, pursuant to which NNS leased to TTS certain office space
in Newport News, Virginia to be used as a center for the provision by TTS of
the Services to NNS and similar mainframe services to Tenneco Business Services
Inc. and its affiliates (the "Data Center");
WHEREAS, effective October 15, 1996, TTS changed its name to Tenneco
Business Services Inc. ("TBS");
WHEREAS, effective December 12, 1996 TBS and NNS were no longer
affiliates of one another;
WHEREAS, TBS intends in July 1998 to relocate its computer operations
(excluding NNS operations) at the Data Center to Lincolnshire, Illinois;
WHEREAS, NNS desires to be responsible for providing its own Services;
and
WHEREAS, the parties desire to terminate the PSA and the Lease on the
terms and subject to the conditions set forth in this Termination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Termination Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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1. Termination; Provision of Services After Termination.
(a) The PSA and the Lease shall be terminated effective
July 31, 1998 (the "Termination Date").
(b) If TBS is unable to relocate its computer operations to
Lincolnshire, Illinois by the Termination Date, NNS, upon receiving a
written request from TBS, shall provide TBS with mainframe data
processing services substantially similar to those currently provided
TBS and its affiliates at the Data Center by TBS an a month-to-month
basis for up to three months at a rate of $ 500,000 per month,
prorated for any portion of a month such services are performed.
2. Settlement and Release.
Effective as of the Termination Date, TBS, on behalf of itself and
each entity controlling, controlled by or under common control with it
(the "Tenneco Group"), and NNS, on behalf of itself and each entity
controlling, controlled by or under common control with it (the "NNS
Group") each hereby releases and forever discharges each other party,
such other party's subsidiaries and affiliates and all of the
respective employees, officers, directors, shareholders and agents of
such other party, of and from all and any manner of actions, causes of
action, suits, debts, sums of money, accounts, costs, expenses,
damages, fees, claims, demands and liabilities whatsoever in law or in
equity which such party had against or now has against such other
party, or which such party hereafter can, shall or may have, arising
out of or related to the PSA or the Lease, or the actions or inactions
of any of such other party or any member of the Tenneco Group or the
NNS Group, as the case may be, under or related to the PSA or the
Lease. Except as specifically described in this Section 2, no other
obligations or liabilities are being settled and released pursuant to
this Termination Agreement.
3. Covenants.
(a) Prior to the Termination Date, each party shall use all
commercially reasonable efforts to cause the suppliers under the
contracts listed on
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Exhibit B hereto to enter into new contracts for the provision of
similar services with NNS. Each party shall bear its own expenses
associated with the negotiation of such new contracts.
(b) TBS shall use all commercially reasonable efforts to
comply, on or before the Termination Date, with the provisions of
Section 4 and Section 9 k of the Lease.
(c) On or prior to the Termination Date (i) NNS shall pay
to TBS all amounts due for Services provided prior to such date and
(ii) subject to adjustment once the actual amount due for rent under
the Lease is determined, TBS shall pay to NNS the estimated amount of
such rent due for periods prior to the Termination Date.
(d) Notwithstanding any provisions of the PSA regarding the
solicitation and hiring of TBS Data Center employees, NNS may begin
the solicitation of such employees on or after the date of this
Termination Agreement; provided, however, (i) NNS may not make any
offers to employ such persons pursuant to which employment would
commence prior to the Termination Date and (ii) the decisions to make
or not to make any such offers shall be at the sole discretion of NNS.
4. Indemnification. Each party (the "Indemnifying Party") shall
indemnify, hold harmless and defend the other party and its respective
present and future parents, subsidiaries, commonly controlled
entities, affiliates, directors, officers, employees and agents
("Related Parties") from and against any and all liabilities, claims,
penalties, forfeitures, suits, and the costs and expenses incident
thereto, which all or any of them may hereinafter suffer, incur,
become responsible for, to the extent caused by: (i) the breach of any
term or provision of this Termination Agreement by the Indemnifying
Party or its Related Parties: (ii) any violation or alleged violation
or statutes; ordinances, orders, rules or regulations of any
governmental entity or agency by the Indemnifying Party or its Related
Parties in the performance of this Termination Agreement; (iii)
violation of any software licensing agreements by the Indemnifying
Party or its Related Parties in the performance of this Termination
Agreement or (iv) any negligent, grossly negligent or willful act or
omission of the Indemnifying Party or its Related Parties in the
performance of this Termination Agreement.
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5. Notices. Any and all notices and other communication
necessary or desirable to be served hereunder shall be either
personally delivered or sent by telecopy, prepaid same-day or
overnight delivery service, proof of delivery requested, or United
States certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
If to NNS:
Information Services
Newport News Shipbuilding
4101 Washington Ave.
Newport News, VA 23607
Attention: S. C. Hassell
Telecopier No.: (757) 688-1900
With a copy to:
Legal Department
Newport News Shipbuilding
4101 Washington Ave.
Newport News, VA 23607
Attention: A. L. Pharr
Telecopier No.: (757) 380-3875
If to TBS:
Tenneco Business Services Inc.
8401 New Trails Drive
The Woodlands, Texas 77387
Attention: Mark Harner
Telecopier No.: (281) 539-6812
With a copy to:
Tenneco Business Services Inc.
8401 New Trails Drive
The Woodlands, Texas 77387
Attention: Legal Department
Telecopier No.: (281) 539-6809
or to such other address or addresses as either party hereto may
designate for itself from time to time in a written notice served upon
the other
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party hereto in accordance herewith. Any notice sent as hereinabove
provided shall be deemed delivered upon receipt or refusal of
delivery.
6. Choice of Law; Venue. This Termination Agreement shall be
governed by, construed and enforced in accordance with the laws of the
State of New York without regard to its conflicts of laws.
7. Interpretation. This Termination Agreement has been
reviewed and negotiated by counsel for both the parties and,
consequently, the parties agree that this Termination Agreement shall
not be construed against the drafter.
8. No Waiver. The terms, covenants, representations,
warranties and conditions of this Termination Agreement may be waived
only by a written instrument executed by the party waiving compliance.
No failure or delay by any party in exercising any right, power or
privilege hereunder 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 right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
9. Severability. In the event any provision of this
Termination Agreement is invalid as applied to any fact or
circumstance, its invalidity shall not affect the validity of any
other provision or of the same provision as applied to any other fact
or circumstance. If any provision of this Termination Agreement is so
broad as to be unenforceable, such provision shall be interpreted to
be only so broad as enforceable.
10. Entire Agreement. This Termination Agreement, together
with all Exhibits hereto and documents incorporated herein by
reference, constitutes the entire agreement between the parties, and
supersedes all prior or contemporaneous oral or written agreements and
related documents and correspondence concerning the subject matter
hereof. The parties shall not be bound by, or liable for, any
statement, covenant, representation, promise, inducement or
understanding not set forth herein. The contents of any and all bids
or proposals, including any descriptions, discussions, or exceptions
offered or
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taken, which are not specifically incorporated herein, are not a part
of this Termination Agreement and shall have no effect or influence
upon its interpretation.
11. Counterparts. This Termination Agreement may be executed
in any number of counterparts, and each counterpart shall constitute
an original instrument, and all such separate counterparts taken
together shall constitute one and the same agreement.
12. No Third Party Beneficiaries; No Agency. This Termination
Agreement is made solely for the benefit of the parties hereto and
shall not give rise to any rights of any kind to any other third
parties.
13. Amendment. No amendment or modification of any of the
terms or conditions of this Termination Agreement shall be valid
unless reduced to writing and executed by the parties hereto.
14. Headings. The Section headings have been inserted for
convenience only and are not intended to affect the meaning or
interpretation of this Termination Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Termination Agreement
on the date and year first set forth above.
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
BY: /s/ T. C. SCHIEVELBEIN
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Printed Name: T. C. Schievelbein
Title: Executive Vice President
TENNECO BUSINESS SERVICES INC.
By: /s/ ROBERT G. SIMPSON
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Printed Name: Robert G. Simpson
Title: General Manager
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EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT
SEE ATTACHED
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EXHIBIT C
SERVICE CONTRACTS
1. IBM Business Recovery Services
2. Data Base of Virginia
3. First Image Management Company
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