Exhibit
10.51


 


LEASE AGREEMENT


 


BETWEEN


 


DELTA AIR LINES, INC.


 


AND


 


WORLDSPAN, L.P.


 

















 


TABLE OF CONTENTS


 


	
  Article

  	
   

  	
   

  
	
   

  	
   

  
	
  1

  	
  DEFINITIONS.

  
	
   

  	
   

  
	
  2.

  	
  PREMISES LEASED

  
	
   

  	
   

  
	
  3.

  	
  TERM OF LEASE

  
	
   

  	
   

  
	
  4.

  	
  RENEWAL OPTIONS

  
	
   

  	
   

  
	
  5.

  	
  USE OF PREMISES

  
	
   

  	
   

  
	
  6.

  	
  RENT

  
	
   

  	
   

  
	
  7.

  	
  PAYMENT OF
  TAXES AND UTILITY COSTS

  
	
   

  	
   

  
	
  8.

  	
  CONSTRUCTION OF
  BUILDING

  
	
   

  	
   

  
	
  9.

  	
  MAINTENANCE OF
  PREMISES

  
	
   

  	
   

  
	
  10.

  	
  PROVISION
  OF UTILITIES AND SECURITY AND OTHER SERVICES

  
	
   

  	
   

  
	
  11.

  	
  ALTERATIONS AND
  FIXTURES

  
	
   

  	
   

  
	
  12.

  	
  SIGNS

  
	
   

  	
   

  
	
  13.

  	
  LIENS

  
	
   

  	
   

  
	
  14.

  	
  TITLE TO
  IMPROVEMENTS

  
	
   

  	
   

  
	
  15.

  	
  INDEMNIFICATION

  
	
   

  	
   

  
	
  16.

  	
  INSURANCE

  
	
   

  	
   

  
	
  17.

  	
  RIGHT OF ENTRY

  
	
   

  	
   

  
	
  18.

  	
  ASSIGNMENTS, ENCUMBRANCES AND SUBLETTING

  
	
   

  	
   

  
	
  19.

  	
  DAMAGE
  OR DESTRUCTION OF PREMISES

  
	
   

  	
   

  
	
  20.

  	
  CONDEMNATION

  



 


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  21.

  	
  INGRESS AND EGRESS

  
	
   

  	
   

  
	
  22.

  	
  SALE OF DATA CENTER AND RIGHT OF FIRST
  REFUSAL

  
	
   

  	
   

  
	
  23.

  	
  COMPLIANCE WITH LEGAL REQUIREMENTS

  
	
   

  	
   

  
	
  24.

  	
  LATE PAYMENTS

  
	
   

  	
   

  
	
  25.

  	
  DEFAULT AND
  DELTA’S REMEDIES

  
	
   

  	
   

  
	
  26.

  	
  HOLDING OVER

  
	
   

  	
   

  
	
  27.

  	
  UNAVOIDABLE DELAY

  
	
   

  	
   

  
	
  28.

  	
  NOTICES

  
	
   

  	
   

  
	
  29.

  	
  WAIVERS

  
	
   

  	
   

  
	
  30.

  	
  SCOPE AND AMENDMENT

  
	
   

  	
   

  
	
  31.

  	
  MISCELLANEOUS

  



 


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LEASE AGREEMENT


 


This LEASE AGREEMENT made and entered into this 7th
day of February, 1990, by and between DELTA AIR LINES, INC., a Delaware
corporation with its principal offices at Hartsfield Atlanta International
Airport, Atlanta, Georgia 30320 (hereinafter referred to as “Delta) and
WORLDSPAN, L.P., a Delaware limited partnership, with its principal office at
                                            
(hereinafter referred to as “Tenant”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to a certain General Agreement,
dated February 7, 1990, by and among Delta, Trans World Airlines, Inc., Trans
World PARS, Inc., Trans World Computer Services, Inc., NWA. Inc., Northwest
Airlines, Inc., Northwest PARS, Inc., Northwest Computer Services, Inc., Delta
Ventures I, Inc., Delta Ventures II, Inc., Delta Ventures III, Inc., PARS
Marketing Partnership, PARS Service Partnership and NEWCRS Limited, Inc. (the
“General Agreement”), the parties to such General Agreement have caused Tenant
to be formed for the purpose of developing, operating and marketing a neutral
“no host” computer reservations system (“CRS”); and


 


WHEREAS, Delta is willing to construct a building
which will contain space for the CRS operations of Tenant and to lease such
space to Tenant;


 


NOW, THEREFORE, for and in consideration of the rent
and other charges hereinafter specified to be paid and the covenants,
conditions, and agreements set out hereinafter to be observed and performed by
the parties, Delta and Tenant agree as follows:


 

















 


ARTICLE 1.           DEFINITIONS.


 


For the purposes of this Lease and in addition to the
terms defined elsewhere in this Lease, the following defined terms shall have
the meanings ascribed thereto in this Article 1:


 


“Additional Rental” shall mean the sums payable
pursuant to paragraph B of Article 6 of this Lease.


 


“Affiliate” shall mean an Affiliate as such
term is defined in the Fourth Amended and Restated Limited Partnership
Agreement, dated as of February 7, 1990, among Delta Ventures I, Inc., Delta
Ventures II, Inc., Delta Ventures III, Inc., Trans World PARS, Inc., Northwest
PARS, Inc. and NEWCRS Limited, Inc., as such Fourth Amended and Restated
Limited Partnership Agreement is hereinafter amended.


 


“Base Rental” shall mean the sums payable
pursuant to paragraph A of Article 6 of this Lease.


 


“Commencement Date” shall mean the date on
which the Premises are deemed substantially complete. The Premises shall be
deemed substantially complete upon completion of the following conditions:


 


(a)           The Building and all
other improvements (including, without limitation, any tenant improvements to
be constructed by Delta), installations and matters shown on the final plans
and specifications approved by Tenant shall have been substantially completed
in accordance with such final plans and


 


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specifications and all
scaffolding and hoists shall have been removed from the Building;


 


(b)           Delta shall have
received a permanent certificate of occupancy from the appropriate governmental
authorities with respect to the Premises permitting the use of the Premises for
the purposes permitted under Article 5 hereof;


 


(c)           Tenant shall have a
reasonable and unobstructed means of access to the Premises and the Data
Center;


 


(d)           All access roads, curb
cuts and parking areas shall have been paved except for the so-called “finish
coat” and all permits required in connection with any of the foregoing shall
have been obtained;


 


(e)           All of the Building’s
sanitary, plumbing, electrical, security, heating, ventilating, air
conditioning, fire safety, monitoring and other systems shall be completed and
available to Tenant and in good working order;


 


(f)            Delta shall have given
Tenant at least thirty (30) days prior notice of the date on which Delta
estimates the conditions set forth in subsections (a) through (e) above shall
be met; provided, that if, after giving such notice, it shall appear to Delta
that all of said conditions will not be met within such thirty (30) day period,
Delta shall give Tenant a further notice setting forth Delta’s estimate of the
date on which all said conditions will be met, which revised date shall be at


 


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least fifteen (15) days
after the date of such further notice and the condition set forth in this
subsection (f) shall not be deemed met until such revised date; and


 


(g)           Six (6) months notice
and access shall have been given to Tenant prior to substantial completion to
permit completion of Tenant installations (telephone, data, wiring, etc.).
Tenant and Delta agree to cooperate during such six-month period to ensure that
Tenant’s work may be completed within such period without Tenant’s contractor
interfering with the performance of the construction of the Data Center by
Delta’s prime contractor.


 


“Common Areas” shall mean those areas of the
Data Center described on Attachment 1 hereto, to be used in common by Delta,
Tenant and any other tenants or subtenants of the Building, and their
respective agents, employees, guests, invitees and licensees.


 


“Computer Data Operations Center” shall mean a
facility used for the operation of computers, computer networks and associated
telecommunications equipment and uses incidental to the operation of such
equipment.


 


“Data Center” shall mean the land and other
real property described on Attachment 1 hereto, the building to be constructed
thereon in accordance with plans and specifications to have been approved and
accepted by Delta and Tenant unless otherwise agreed to by Delta and Tenant
which will contain space for housing Tenant’s CRS operations (the ‘Building’)
and all other improvements on or appurtenant to said land and other real
property.


 


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“Impositions” shall mean any and all federal,
state, county, municipal and local taxes, assessments, levies and other charges
imposed upon the land, buildings and improvements constituting the Data Center,
or any tax, assessment, levy or other charge imposed upon the rentals provided
for hereunder or under any agreement between Tenant and any subtenant of
Tenant; provided, however, that Impositions shall not include any municipal,
state, federal or governmental income, capital levy or stock, estate, excise
(unless such excise tax is imposed upon rentals), succession, inheritance,
transfer or gains taxes assessed against or chargeable to Delta or any tenant
of Delta (other than Tenant) or any franchise taxes imposed upon Delta or any
tenant of Delta (other than Tenant). Impositions imposed on a graduated basis
shall be computed as if the Data Center were the sole asset of Delta.


 


“Mechanical/Electrical Facility” shall mean the
facility to be constructed as part of the Building comprising part, of the Data
Center which facility will provide mechanical, electrical, heating,
ventilating, air conditioning, fire life safety, security, redundancy,
monitoring, sprinkler and all other environmental support for the Building
called for on the plans and specifications for the Data Center approved by
Tenant and Delta.


 


“Net Usable Area” shall mean as to the
Premises, or any other area of the Building intended to be occupied, the areas
within the outside permanent Building walls, measured to the inside surface of
such walls, and to the inside surface of any wall or partition separating the
Premises or such other area from any other portion of the Building, and shall
exclude Common Areas.


 


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“Operating Expenses” shall mean all costs of
management, operation and maintenance of the Data Center including, without
limitation, wages, salaries and payroll burden of janitorial, maintenance,
guard and other services, service and maintenance contracts, materials and
supplies consumed in connection with such services, all other costs of
maintenance and repairs to the Data Center (but not capital improvements,
except as hereinafter provided), deductibles under insurance covering the Data
Center (except as hereinafter provided) and premiums associated with property
insurance maintained by Delta hereunder with respect to the Data Center, and
payments to reserves established pursuant to any regular program of
self-insurance permitted under this Lease, utilities (except as provided in
clause (viii) below) and security and other services as provided in Article 10
hereof. Notwithstanding the immediately preceding sentence, the term “Operating
Expenses” shall not include (i) Impositions, (ii) the cost of and depreciation
on capital improvements, except as provided below, (iii) costs reimbursed from
insurance proceeds and the cost of losses realized by reason of self insurance,
whether pursuant to deductibles under insurance policies or otherwise, unless
such deductible provisions were approved by Tenant pursuant to paragraph C of
Article 16 hereof, in which case all such deductibles associated with any
casualty to the Common Areas or the Mechanical/Electrical Facility shall be
Operating Expenses, (iv) ground rents, if any, and debt service on any
indebtedness, working capital loans and other long term or other debt of Delta,
(v) leasing commissions, advertising expenses and promotional expenses incurred
in connection with the leasing or subleasing of space in the Building, (vi)
management fees (provided, however, this exception shall not extend to payments
under service and maintenance contracts), (vii) the cost of services furnished
to Delta’s portion of the Building to the extent that such services exceed the


 


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level of services furnished to the Premises, (viii)
electricity furnished to the Premises and other occupied portions of the
Building, provided the electricity furnished to the Premises and other occupied
portions of the Building is separately metered (Tenant shall pay such amount
evidenced by separate meter covering the Premises directly to Delta in
accordance with Article 7 hereof), (ix) expenditures for initial construction
of the Building and for correcting construction defects, including repairs made
from time to time for such purpose, (x) imputed rent with respect to unoccupied
portions of the Building, (xi) sums paid to affiliates of Delta in excess of
market rates, (xii) damages, awards or judgments against Delta (provided,
however, such exception in no way affects Tenant’s obligations under Article 15
hereof), and (xiii) insurance costs, if any, relating to coverage in excess of
amounts specified in Article 16 hereof, unless expressly otherwise agreed
between Delta and Tenant; provided, however, fire and extended coverage
casualty insurance shall not be deemed to be in excess of the amounts specified
in Article 16 if such coverage is in an amount less than or equal to the
replacement value of the Data Center.


 


Except as provided below, Operating Expenses shall
include the amortized cost of, and no approval of Tenant shall be required with
respect to, capital replacements, capital improvements or other capital
expenditures to or with respect to the Data Center (a) which are necessary in
order to repair or replace systems or other portions of the Data Center and
maintain the integrity of the Data Center, (b) which are required by any
governmental authority but which were not so required prior to the Commencement
Date, (c) which are required in order to ensure that the Data Center is
insurable pursuant to Article 16 hereof, or (d) which are designed and intended
to create efficiencies in the operation of the Data Center and therefore reduce
Operating Expenses; provided, however, that with respect to such capital
replacements, capital


 


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improvements and capital expenditures described in
clause (d) above, the amortized cost to be included in Operating Expenses for
any period for any such capital replacement, capital improvement or capital
expenditure shall not exceed the actual savings in Operating Expenses reasonably
estimated to have been produced by such capital replacement, capital
improvement or capital expenditure during such period, unless Tenant has
specifically approved such capital replacement, capital improvement or capital
expenditure in advance. If any capital replacement, capital improvement or
capital expenditure described in any of clauses (a) through (d) above relates
to the Mechanical/Electrical Facility, then Tenant shall have the right to
approve the plans and specifications for such capital replacement, capital
improvement or capital expenditure, which approval shall not be unreasonably
withheld or delayed. Capital replacements, capital improvements and other
capital expenditures described above shall be amortized at an interest rate
equal to one (1) percentage point in excess of the Prime Rate in effect at the
time the capital replacement, capital improvement or other capital expenditure
is completed, and shall be amortized over the following period: (x) with
respect to capital replacements, capital improvements and other capital
expenditures described in clauses (a), (c) or (d) above, on a straight-line
basis over the remainder of the initial term of this Lease, or, if such capital
replacement, capital improvement or capital expenditure is made during a
renewal term, over the remaining term of this Lease, as extended, (y) with
respect to capital replacements, capital improvements or other capital
expenditures described in clause (b) above, on a straight-line basis over the
shorter of (i) the economic useful life of the capital replacement, capital
improvement or capital expenditure or (ii) the remainder of the initial term of
this Lease, or, if such capital replacement, capital improvement or capital
expenditure is made during a renewal term, over the


 


7

















 


remaining term of this Lease, as extended.
Notwithstanding the above, if any such capital replacement, capital improvement
or capital expenditure relates solely to the requirements of Tenant, but not to
the requirements of the Data Center generally, then Tenant shall pay the full
cost of such capital replacement, capital improvement or capital expenditure
directly to Delta, rather than all or any portion of the amortization of the
cost, and if any such capital replacement, capital improvement or capital
expenditure relates solely to the requirements of Delta (or tenants of space
other than the Premises), Tenant shall not be required to pay the cost or all
or any portion of the amortized cost of such replacement, improvement or
expenditure.


 


“Premises” shall mean the space within the
Building leased by Tenant hereunder and described in Attachment 1 hereto.


 


“Prime Rate” shall mean the rate of interest
publicly announced by Citibank, New York, New York as its prime rate of
interest as in effect on the applicable date, or, if Citibank discontinues such
prime rate, the prime rate publicly announced from time to time by another
similar bank in the New York area designated by Delta with the approval of
Tenant.


 


“Rental” shall mean, collectively, Base Rental
and Additional Rental payable pursuant to the terms of this Lease.


 


“Tenant’s Percentage Share” shall mean the
percentage figure obtained by dividing the Net Usable Area of the Premises by
the sum of the Net Usable Area of the Premises plus the Net Usable Area of the
other occupiable portions of the Building, and by multiplying such quotient by
100. For purposes of Article 6 of this Lease, and in the event Tenant’s


 


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Percentage Share is changed during a month by reason
of a change in the Net Usable Area of the Premises or the Building, Tenant’s
Percentage Share shall be determined on the basis of the number of days during
such month at each such percentage share.


 


ARTICLE 2.           PREMISES
LEASED


 


Delta does hereby demise and let unto Tenant and
Tenant does hereby hire and lease from Delta those premises depicted in
Attachment 1 hereto as the Premises, subject to and only in accordance with the
terms of this Lease. Tenant shall also have the right to use, in common with
Delta and any other tenants or subtenants of the Building, the Common Areas.
Attachment 1 shall include a legal description of the site of the Data Center,
a description of the state of title of such site, and a diagram or other
description of the Premises, the Mechanical/Electrical Facility and the Common
Areas. Upon determination of the information necessary to prepare Attachment 1,
Tenant and Delta each agree to take all actions necessary on such party’s part
to complete and affix to this Lease Attachment 1.


 


ARTICLE 3.           TERM OF
LEASE


 


The initial term of this Lease shall be for a period
of thirty (30) years, commencing on the Commencement Date and terminating on
the date which is thirty (30) years after the Commencement Date, unless sooner
terminated as hereinafter provided in this Lease.


 


ARTICLE 4.           RENEWAL
OPTIONS


 


A.            Upon
expiration of the initial Lease term, and provided an Event of Default has not
occurred and is continuing, Tenant is hereby granted the options, exercisable
in the case of each such option not less than fifteen (15) months prior to the
expiration of either the


 


9

















 


initial Lease term
or the applicable renewal term, to renew this Lease in respect of the Premises
for two additional terms of ten (10) years each at a fair market rental value,
to be determined in accordance with the standards specified in paragraph B
below and agreed upon by Tenant and Delta or determined as hereinafter provided.
If Tenant and Delta have not agreed upon the fair market rental value for the
Premises by not later than ninety (90) days following Tenant’s notice of the
exercise of a renewal option, such fair market rental value shall be determined
as described in paragraph B below.


 


B.            In
the event Tenant and Delta do not timely agree upon the fair market rental
value for the Premises, in order to determine the fair market rental value
applicable to a renewal term, Tenant and Delta shall, by a date not later than
one hundred ten (110) days following Tenant’s notice of the exercise of a
renewal option, each select an appraiser, whose fees shall be paid,
respectively, by Tenant and Delta. Those two appraisers shall, within fifteen
(15) days of the appointment of the last of such two appraisers to be
appointed, then select a third appraiser, whose fee shall be shared equally by
the Tenant and Delta; provided, however, that if such two appraisers cannot
agree upon the selection of the third appraiser, or do not so select a third
appraiser within such fifteen (15) day period, then such third appraiser shall
be appointed by the American Arbitration Association. Each of the three
appraisers shall, within fifteen (15) days of the appointment of the third
appraiser, independently appraise the fair market rental value of the Premises
for the relevant renewal term. For purposes of those appraisals, fair market
rental value shall mean the rental value, payable in cash in monthly
installments, as of the expiration date of the initial term or renewal term, as
appropriate, immediately preceding the renewal term to be appraised, that a
bona fide willing lessee who is not in possession and a bona


 


10

















 


fide willing
lessor who is under no compulsion to lease are willing to pay or accept to
lease the Premises for the relevant renewal term. Such fair market rental value
shall be determined by reference to all of the terms of this Lease, but without
reference to any improvements made to the Premises at the sole expense of
Tenant. Tenant’s option to lease shall be at the fair market rental value as
determined by the average of the two closest appraisals. Tenant shall have the
right to rescind its election to renew the term of this Agreement by giving
Delta written notice of such determination to rescind within thirty (30) days
of notice to Tenant of the fair market rental value determined through
appraisal as provided above. If the fair market rental value for a renewal term
has not been determined in advance of the commencement of such renewal term,
then the Base Rental shall continue at the rate for the preceding term, but
shall be retroactively adjusted to the commencement date of such renewal term
upon determination of the fair market rental value for such renewal term,
unless Tenant rescinds its election to renew the term of this Agreement as
provided above. If Tenant exercises any option to renew granted by this Lease,
this Lease (together with any remaining renewal option) shall continue in full
force and effect for said renewal term.


 


ARTICLE 5.           USE OF
PREMISES


 


A.            The
Premises shall be used solely for business purposes of Tenant permitted by the
Fourth Amended and Restated Limited Partnership Agreement, dated as of February
7, 1990, among Delta Ventures I, Inc., Delta Ventures II, Inc., Delta Ventures
III, Inc., Trans World PARS, Inc., Northwest PARS, Inc. and NEWCRS Limited,
Inc., as such Fourth Amended and Restated Limited Partnership Agreement is
hereinafter amended, provided that any use of the Premises other than as a
Computer Data Operations Center shall not interfere with


 


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or disrupt the use
by Delta or any tenant of Delta (other than Tenant) of the Building (other than
the Premises) as a Computer Data Operations Center and shall be subject to
Delta’s approval, which approval shall not be unreasonably withheld or delayed.


 


B.            In
the event this Lease is assigned by Tenant pursuant to Article 18 hereof or any
portion of the Premises is sublet pursuant to Article 18 hereof, the assignee
or subtenant, as the case may be, shall not use the Premises for any use which
interferes with or disrupts the use by Delta or any tenant of Delta (other than
Tenant) of the Building (other than the Premises) as a Computer Data Operations
Center and, if such assignee or subtenant, as the case may be, desires to use
the Premises for any use other than as a Computer Data Operations Center, such
use shall be subject to Delta’s approval, which approval shall not be
unreasonably withheld or delayed.


 


C.            Delta
agrees that if Delta or any tenant of Delta (other than Tenant) uses the
Building (other than the Premises) for any use other than as a Computer Data
Operations Center, such use shall not interfere with or disrupt the use by
Tenant or any subtenant of Tenant of the Premises as a Computer Data Operations
Center and shall be subject to Tenant’s approval, which approval shall not be
unreasonably withheld or delayed.


 


D.            Neither
Delta nor Tenant shall use or permit the use of the Data Center in any manner
that will or is likely to create waste or a nuisance or take or omit to take,
subject to the provisions of Article 1 hereof, any other action which may
interfere with or disturb the use or enjoyment of the Data Center, as permitted
by this ease, by the other or any other tenant occupying any portion of the
Data Center, including the use or enjoyment of the Common Areas.


 


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Tenant and Delta
shall cooperate in the preparation of mutually acceptable standards for the
security of the Data Center. Such agreed upon standards shall be binding upon
Tenant, Delta and all tenants, subtenants or other occupants of the Data Center
and the failure to comply with such agreed upon standards shall constitute a
breach of this Lease.


 


ARTICLE 6.           RENT


 


A.            Base
Rental


 


Tenant shall pay to Delta a monthly Base Rental equal
to Two Hundred Seventy-Seven Thousand Seven Hundred Twenty-Five Dollars and
Forty Cents ($277,725.40), which would be the amount necessary to amortize the
principal sum of $27,000,000 in 360 equal monthly installments, payable in
arrears, bearing interest at the rate of twelve percent (12%) per annum, and
with each installment applied first to the interest then due and payable and
the balance to principal. Said rental shall be payable monthly in advance, on
the first day of each and every month during the term hereof, without abatement
or set-off unless expressly provided for in this Lease. In the event the term
of this Lease commences on a day other than the first day of a calendar month
or ends on a day other than the last day of a calendar month then the monthly
rental for the first and last fractional months of the term hereof shall be
prorated by multiplying the monthly Base Rental by a fraction, the numerator of
which is (i) with respect to such initial fractional month, the number of days
from and including the Commencement Date and to and including the last day of
such initial calendar month, and (ii) with respect to such last fractional
month, the number of days from and including the first day of such last
calendar month and to and including the termination date of the Lease, and the
denominator of which is thirty (30).


 


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Such Base Rental may be adjusted as provided in
Articles 4, 8 and 20 hereof.


 


B.            Additional
Rental


 


In addition to the Base Rental payable pursuant to
paragraph A above, Tenant shall pay as Additional Rental for the period from
and after the Commencement Date (i) Tenant’s Percentage Share of (a) Operating
Expenses and (b) Impositions as provided in paragraph B of Article 7, (ii)
utility charges as provided in paragraph A of Article 7 and Tenant Impositions
as provided in paragraph B of Article 7, and (iii) all other payments to be
made by Tenant to Delta pursuant to Articles 9, 10 and 16 of this Lease and all
other payments to be made by Tenant to Delta with respect to capital
improvements, capital replacements or other capital expenditures as provided in
Article 1 of this Lease. Operating Expenses prior to the first January 1 to
occur after the Commencement Date shall be estimated based upon a budget
prepared by Delta and approved by Tenant, which approval shall not be
unreasonably withheld or delayed. For each succeeding calendar year of this
Lease, the estimate of Operating Expenses shall be based upon actual Operating
Expenses for the previous calendar year (with respect to the first full
calendar year, adjusted, if necessary, to reflect a Commencement Date on a date
other than January 1). Tenant shall pay one-twelfth (1/12th) of Tenant’s
Percentage Share of such estimated Operating Expenses (“Tenant’s Estimated
Operating Expenses”) for the calendar year on the first (1st) day of each
calendar month. By April 1 of each calendar year following the Commencement
Date, Delta shall furnish to Tenant a statement of Delta’s actual Operating
Expenses for the previous calendar year and the calculation of Tenant’s
Estimated Operating Expenses for the current calendar year. Tenant agrees to
pay Delta, within thirty (30) days after


 


14

















 


receipt of Delta’s statement, any amount of Tenant’s
Percentage Share of actual Operating Expenses which was not previously paid as
Tenant’s Estimated Operating Expenses for such previous calendar year. If for
any calendar year the amount of Tenant’s Estimated Operating Expenses paid by
Tenant during such calendar year is greater than Tenant’s Percentage Share of
actual Operating Expenses during such calendar year, as shown by Delta’s
statement or, if audited, by the audit thereof described below (provided such
auditor’s determination is confirmed by Delta or otherwise determined to be
correct), then, (i) if such overpayment is less than $50,000.00, Delta shall
apply and credit such overpayment in reduction of the next accruing installment
of Additional Rental payable by Tenant to Delta, and (ii) if such overpayment
is greater than $50,000.00, Delta shall refund to Tenant the entire amount of
any such overpayment within ten (10) days of Tenant’s written request to Delta
for payment of such amount. If such audit reflects an underpayment by Tenant
with respect to the period audited, then Tenant shall pay to Delta the entire
amount of such underpayment within ten (10) days of receipt of Delta’s invoice
therefor. Tenant shall have the right, within one hundred eighty (180) days
after receipt of Delta’s statement of actual Operating Expenses for the
previous calendar year, to cause Delta’s books and records relating to
Operating Expenses to be audited by a Big Eight accounting firm designated by
Tenant and reasonably acceptable to Delta, and Delta shall cooperate with
Tenant and such accountants in connection with any such audit; provided, however,
that Tenant shall pay all costs and expenses of such audit unless such audit
reveals that the amount of Operating Expenses set forth in Delta’s statement
for the previous calendar year exceeds the actual amount of such Operating
Expenses for such calendar year as disclosed by such audit by more than five
percent (5%) (and provided further that such auditor’s


 


15

















 


determination is confirmed by Delta or otherwise
determined to be correct), in which event Delta shall pay the costs and
expenses of such audit, including the fees and expenses of Tenant’s accountant.


 


C.            Address
for Payment of Rental


 


All payments to be made to Delta under this Lease
should be sent to “Cashier, Delta Air Lines, Inc., Hartsfield Atlanta
International Airport, P. 0. Box 20533, Atlanta, Georgia 30320-2533”, or at
such other place as Delta may from time to time designate in writing. All
payments hereunder shall be in lawful money of the United States. Any payment
of Base Rental or Tenant’s Estimated Operating Expenses made hereunder which is
not in same day funds shall be paid two business days in advance of the date
such payment would otherwise be due.


 


ARTICLE 7.           PAYMENT OF TAXES AND UTILITY COSTS


 


A.            Utilities


 


Among other costs, Tenant shall, for the period from
and after the Commencement Date, be solely responsible for the cost of all
utilities for the Premises, including, without limitation, electricity, water,
gas, heating, ventilation, air conditioning, sewer and telephone equipment and
services.  If, pursuant to Article 10
hereof, Delta incurs or pays such expenses then (i) if the charges relate to
the Data Center as a whole, such amounts shall be included in Operating
Expenses; and (ii) to the extent any such utilities are separately metered with
respect to the Premises and the other occupied portions of the Data Center,
such expenses shall not be included in Operating Expenses and Tenant shall
reimburse Delta for the separately


 


16

















 


metered amounts pertaining to the Premises at Delta’s
cost thereof within ten (10) days of receipt of Delta’s invoice therefor.


 


B.            Taxes
and Other Charges


 


Tenant shall pay to Delta an amount equal to (i) any
and all Impositions assessed or due with respect to any alteration, improvement
or addition made to the Premises at the sole expense of Tenant or any subtenant
of Tenant and any and all Impositions with respect to the rental provided for
hereunder or under any agreement between Tenant and any subtenant of Tenant
(“Tenant Impositions”), and (ii) Tenant’s Percentage Share of all other
Impositions (except those Impositions assessed or due with respect to any
alteration, improvement or addition made, at the sole expense of Delta or any
tenant of Delta other than Tenant, to any area of the Building intended to be
occupied exclusively by Delta or a tenant of Delta (other than Tenant) (“Delta
Impositions”)). The Net Usable Area associated with an addition subject to a
Tenant Imposition or a Delta Imposition shall not be included in the numerator
or the denominator of the fraction used in calculating Tenant’s Percentage
Share of all other Impositions. Impositions with respect to Tenant’s Removable
Property (as defined in Article 11 hereof) or with respect to any other
property of Tenant or Tenant’s subtenants, real or personal, shall be the sole
responsibility of Tenant and shall be paid directly by Tenant to the taxing
authority. If the taxing authority makes a separate determination of the amount
due as a Tenant Imposition, then Tenant shall pay such amount. If no such
determination is made, Tenant and Delta shall attempt to agree upon the amount
to be paid by Tenant but if Tenant and Delta do not agree upon the amount to be
so paid by Tenant, then the matter shall be determined by arbitration upon the
request of either party.


 


17

















 


Tenant shall pay all amounts required to be paid by
Tenant to Delta pursuant to this paragraph B within ten (10) days after a bill
is rendered therefor by Delta, but in no event shall Tenant be required to pay
such amount more than thirty (30) days before such taxes become delinquent. In
the event any assessment is, by law, payable in installments Delta shall, at
Tenant’s option, elect to pay the same in installments; however, Tenant shall
be responsible for Tenant’s Percentage Share of all installments of such
assessment accruing during the term of this Lease. Any Imposition relating to a
fiscal period of a taxing authority, a part of which period is included within
the term of this Lease and a part of which period is included in a period of
time before the Commencement Date or after the expiration or termination of
this Lease, shall be appropriately prorated between the parties.


 


Tenant shall have the right to require that Delta take
reasonable lawful action specified by Tenant to contest the amount or validity
of any Impositions, with the costs and expenses incurred in connection with any
such contest to be borne by Tenant or, if Delta shall not promptly undertake to
do so and thereafter institute and conduct with diligence such contest, to
institute and/or conduct in Tenant’s name or in the name of Tenant and/or
Delta, such contest. Tenant shall be entitled to Tenant’s Percentage Share of
any refunds or savings resulting from proceedings to reduce any Impositions
(determined after deducting all costs and expenses of procuring same). Tenant
shall also be entitled to any discounts for timely or early payment of Tenant
Impositions and to Tenant’s Percentage Share of any discounts for timely or
early payment of other Impositions (except Delta Impositions).


 


18

















 


ARTICLE 8.           CONSTRUCTION OF BUILDING


 


A.            Delta
agrees to purchase the site upon which the Building will be located and to
design and construct the Building. The site shall be selected by Delta but
shall be subject to the approval of Tenant, and, in connection with such
approval, Tenant shall act in good faith and in the best interests of Tenant
and consistently with the uses of the Data Center by Tenant and Delta
contemplated by this Lease. Delta may lease, rather than purchase, the site
upon which the Building will be located, provided Tenant approves the leasing
of such site, and Tenant, in connection with such approval, shall act in good
faith and in the best interests of Tenant and consistently with the uses of the
Data Center by Tenant and Delta contemplated by this Lease. Each of the
following items, if raised by Tenant as an objection to the leasing of the Data
Center site, shall constitute an objection raised in good faith in such
connection:


 


(i)            failure
of the overlandlord named in such lease (the “Overlease”) of the Data Center
site to enter into a non-disturbance agreement with Tenant in form reasonably
satisfactory to Tenant, which shall include provisions recognizing Tenant’s
entitlement to insurance proceeds and condemnation awards to the extent
provided in Articles 16 and 20 of this Lease.


 


(ii)           failure
of the provisions of this Lease to prevail over provisions of the Overlease.


 


B.            In
order to construct the Building as expeditiously as possible, and in a manner
satisfactory to both Tenant and Delta, Tenant and Delta agree to cooperate to
attempt to achieve the following stages of completion as of the dates
specified:


 


19

















 


(i)            within
60 days after the date of this Lease, (a) determination of the site of the Data
Center, including approval by Tenant and Delta of the environmental review of
such site; and (b) agreement between Tenant and Delta with respect to the
“footprint” of the Building and the size and configuration of the Building;


 


(ii)           within
120 days after the date of this Lease, the determination of mutually acceptable
design criteria for the Building; and


 


(iii)          within 180 days after the date of this Lease
preliminary drawings and specifications, together with such other working
drawings, reports, studies and analyses as shall be sufficient to enable Tenant
and Delta, upon establishment of a fixed price, maximum upset price or
guaranteed maximum price for construction of the Data Center, as Delta shall
elect, to decide whether the Data Center shall be constructed under a
“fast-track” method of construction, and Delta will endeavor within such
180-day period to procure and to quote to Tenant, based upon such fixed price,
maximum upset price or guaranteed maximum price, as Delta shall elect, a
construction price for the Premises, Tenant’s allocated share of the Mechanical/Electrical
Facility and Tenant’s allocated share of the Common Areas (“Tenant’s
Construction Price”), which price shall be the basis for fixing, prior to
commencement of construction, the Base Rental for the Premises, subject to
adjustment for change orders, as hereinafter


 


20

















 


provided. Tenant
and Delta agree to cooperate with each other to attempt to achieve a mutually
acceptable allocation between Tenant and Delta of the contractor’s quoted price
with respect to the Building, the Mechanical/Electrical Facility and the Common
Areas, which allocation shall form the basis for the quote to Tenant of
Tenant’s Construction Price. If Tenant and Delta do not agree upon such
allocation prior to commencement of construction, construction need not be
delayed until the determination of such allocation, however, at the request of
either Tenant or Delta, such allocation shall be determined by arbitration.


 


If, at the end of any of the time periods specified
above, the decisions and/or determinations to have been made during such time
period have not been made (other than Delta’s failure to quote a fixed price,
maximum upset price or guaranteed maximum price, as Delta shall elect, provided
Tenant and Delta have reached agreement upon all matters required to be taken
into account in quoting such fixed price, maximum upset price or guaranteed
maximum price), or, if, at the end of such 180-day time period, Tenant does not
agree to the construction of a building under a “fast-track” method of
construction, Delta shall have the option to (x) appropriate the site for its
own use and construct a building as a single-use building for Tenant on another
site to be purchased by Delta and approved by Tenant as provided in paragraph A
of this Article 8; (y) construct the Building as a single-use building for
Tenant on the site selected, if such site was approved by Tenant in accordance
with paragraph A above; or (z) continue to design and construct the Building as
a joint-use building for Tenant and Delta on a site selected in accordance with
the provisions of this Article 8. Delta shall have no obligation to reimburse


 


21

















 


Tenant for any costs or expenses Tenant may have
incurred in connection with the preparation by Tenant or by
architects/engineers retained by Tenant of Tenant’s specifications for the Data
Center, including, but not limited to, the Premises, or in connection with
approval of the site, including environmental review of the site.


 


C.            If,
pursuant to the provisions of paragraph B hereof, Delta elects to appropriate
the site for its own use and to construct a building as .a single-use building
for Tenant on another site, or, alternatively, not to occupy any portion of the
Data Center, and instead, to have Tenant be the sole tenant of the Data Center
facility, then and in either such event the following rules shall apply and the
provisions of this Lease shall be amended as hereinafter in this paragraph C
provided, and in the event of any discrepancy between the provisions of this
paragraph C and other provisions of this Lease, the provisions of this
paragraph C shall prevail:


 


(i)            The
Commencement Date of the Lease shall be tied to substantial completion of the
Data Center and there shall be no necessity to distinguish between the
Premises, on the one hand, and the Data Center, on the other, it being the
intention hereof that the definition of substantial completion shall apply to
the Data Center as a whole which shall have been constructed for occupancy by
Tenant and/or those subtenants, if any, deriving rights of occupancy through
Tenant.


 


(ii)           Tenant’s
Percentage Share shall mean 100%.


 


22

















 


(iii)          The premises leased shall be the entire Data
Center and Attachment 1 shall be amended to reflect such fact. In such event,
the demised premises shall consist of the entire parcel of land, the entire
Building and all improvements erected on the parcel of land constituting the
Data Center. In such event, references in this Lease to the Premises and to the
Data Center shall have the same meaning. The terms “Data Center” and “Building”
shall apply whether the building to be constructed is to be constructed on the
site initially approved or a substitute site.


 


(iv)          Article
5, paragraph A and Article 18, paragraph A, subparagraphs (c) and (d), shall be
amended to provide that Tenant may use and occupy the Premises for any lawful
purpose, but nothing contained in such provisions shall limit or affect the
provisions of Article 11 pertaining to Tenant’s duty to restore the Data Center
or certain alterations made to the Data Center to their original condition upon
the expiration or earlier termination of the Lease. Paragraphs B and C of
Article 5 shall be deleted, the balance of paragraph D of Article 5 following
the word “nuisance” shall be deleted and the remaining reference to Delta in
such paragraph D shall be deleted.


 


(v)           The
Base Rental which Tenant shall pay to Delta shall be calculated and paid as
provided in Article 6 hereof, as adjusted pursuant to Article 8 hereof;
provided, however, that for purposes of said Article 8, Tenant’s Construction
Price shall be based upon the construction price for the entire


 


23

















 


Data Center
exclusive of the cost of the land on which the Data Center is located. The
foregoing Base Rental, regardless of how computed, shall be a net rental which
shall be net to Delta.


 


(vi)          Tenant
shall pay directly all operating expenses of the Data Center, to the end that
the Base Rental shall be net to Delta, and paragraph B of Article 6 shall be
amended accordingly. There will be no necessity for separate metering as
provided in Article 7, paragraph A and Tenant shall procure all Utilities and
pay all utility charges incurred in connection with the operation or
maintenance of the Data Center.


 


(vii)         Tenant shall pay all Impositions and shall pay
them directly to the taxing authorities subject to the Tenant’s right to
contest Impositions as provided in Article 7, paragraph B.


 


(viii)        The design for the Data Center facility shall
be prepared by Tenant at Tenant’s expense using architects, engineers and other
professionals of Tenant’s selection, but the design and the professionals shall
be subject to the approval of Delta, which approval Delta shall not
unreasonably withhold or delay, and Article 8, shall be amended accordingly.


 


(ix)           All
costs and expenses incurred after the Commencement Date in connection with
repairs, alterations or capital improvements, in order to


 


24

















 


comply with legal
requirements as set forth in Article 23 hereof, shall be made by Tenant at
Tenant’s cost and expense.


 


(x)            Tenant
shall maintain and make all repairs to the Data Center as shall be required
from time to time, in accordance with the standards set forth in Article 9
hereof, at Tenant’s sole cost and expense, and Article 9 shall be amended
accordingly.  Any capital expenditures
required in connection with the maintenance or repair of the Data Center shall
be made at Tenant’s sole cost and expense. Delta shall assign to Tenant all
warranties and guaranties pertaining to construction of the Data Center.


 


(xi)           Tenant
shall provide all services to the Data Center at Tenant’s sole cost and expense
and Article 10 shall be amended accordingly.


 


(xii)          Article 11 shall be amended to permit Tenant
to make all alterations to the Data Center which Tenant wishes to have made,
without Delta’s consent, subject to the provisions of said Article 11 which
require Tenant, at the expiration or earlier termination of the Lease, to
restore those improvements made to the Data Center for which Delta’s consent
was not obtained and subject also to subparagraphs (i), (ii) and (iv) of such Article
11, paragraph A. Delta’s consent to alterations requested to be made by Tenant
shall not be unreasonably withheld or delayed.


 


25

















 


(xiii)         Article 15, paragraph B shall be deleted and
shall be replaced with the following provision:


 


Delta shall indemnify,
defend and hold harmless Tenant, its partners, and their respective directors,
officers and employees and the agents and employees of Tenant, from and against
any and all claims, actions, judgments, liabilities, losses, damages or
expenses arising out of any negligence or willful misconduct of Delta or any of
its directors, officers, agents, contractors or employees occurring at or with
respect to the Data Center or any part thereof or from any breach or default in
the performance of any obligation on Delta’s part to be performed under the
provisions of this Lease, and from any and all reasonable costs, attorneys’
fees, expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon. Tenant shall notify Delta of any claim
made against Tenant which would be the subject of the indemnities given herein
and Delta shall have the right to defend and/or compromise said claim.


 


(xiv)        Tenant shall maintain and carry all insurance
covering the Data Center which shall be subject to the limits set forth in
Article 16. Tenant, and/or Delta, shall procure the fire and extended coverage
insurance called for under Article 16. Delta shall have no obligation to carry
Workers’


 


26

















 


Compensation
insurance or Employers’ Liability insurance. All liability insurance (other
than Workers’ Compensation insurance and Employers’ Liability insurance)
required to be carried by Tenant shall name Delta as an additional insured and
all casualty insurance, other than rent insurance, covering the Data Center
(other than insurance covering Tenant’s Removable Property) shall name Delta as
loss payee.


 


(xv)         The
provisions of Article 18, paragraph A, subparagraph (d) shall be amended to
eliminate the percentage limitation on the amount of space which Tenant may
sublet, and the provisions of Subdivision B of Article 18 shall be deleted.


 


In the event the Data Center is occupied solely by
Tenant, as provided in this paragraph C, Delta and Tenant agree to enter into a
restated and amended lease reflecting the provisions of this paragraph C.


 


D.            Delta
will secure Tenant’s approval of the plans and specifications relating to the
Premises, the Common Areas and the Mechanical/Electrical Facility prior to
commencing construction. Notwithstanding the preceding sentence, if Tenant and
Delta agree that the Building is to be constructed under a “fast-track” method
of construction, Tenant acknowledges that complete plans and specifications for
the Premises, Common Areas and Mechanical/ Electrical Facility are unlikely to
be available prior to commencement of construction of the Premises, Common
Areas and Mechanical/Electrical Facility. If such is the case, Delta will provide
plans and specifications for each phase of construction to Tenant for approval
as such


 


27

















 


plans and
specifications become available and prior to commencement of construction of
the particular phase described in such plans and specifications. The timing of
submissions and approvals or disapprovals shall be governed by paragraph F of
this Article 8.


 


E.             The
architects/engineers and general contractor to be retained by Delta to design
and construct the Premises, Common Areas and Mechanical/Electrical Facility
shall be selected by Delta but shall be subject to the approval of Tenant,
which approval shall not be unreasonably withheld or delayed. If Tenant chooses
to hire or retain any architects/engineers or other professionals or
consultants in addition to those selected by Delta and approved by Tenant as
provided above, then Tenant shall pay all costs and expenses of such additional
architects/engineers or other professionals or consultants.


 


F.             The
construction of the Building shall be performed in a good and workmanlike
manner and in compliance with all applicable building, zoning and other
federal, state and local laws, ordinances, regulations, requirements and codes.
The Premises, Common Areas and Mechanical/Electrical Facility will be
constructed in accordance with the plans and specifications approved by Delta
and Tenant, which plans and specifications will conform to the basic guidelines
agreed to by Tenant and Delta pursuant to paragraph B (ii) of this Article 8 or
as such guidelines are modified by the mutual agreement of Tenant and Delta. If
Tenant’s Construction Price, determined in the same manner as provided in
paragraph B (iii) of this Article 8, is in excess of Thirty-Two Million Dollars
($32,000,000.00) (the “Construction Allowance”), then Delta, at the request of
Tenant, will cooperate with Tenant in redesigning the Premises, Common Areas
and/or Mechanical/Electrical Facility so as to reduce the cost. Tenant shall
have


 


28

















 


the right to
approve all change orders to the construction contract that relate to the
Premises, the Common Areas and/or the Mechanical/Electrical Facility. In
connection with such approval, Delta will provide Tenant with all information
provided to Delta by the contractor with respect to the effect of a proposed
change order on Tenant’s Construction Price. If Tenant believes the information
provided by said contractor is insufficient to enable Tenant to adequately
evaluate the impact of such change order on Tenant’s Construction Price, then
Delta shall provide Tenant with access to said contractor so as to enable
Tenant to attempt to obtain such additional information with respect to said
cost as Tenant shall require. If Tenant’s Construction Price, adjusted to
reflect change orders approved by Tenant (“Tenant’s Adjusted Construction
Price”), is in excess of the Construction Allowance, then the Base Rental set
forth in paragraph A of Article 6 hereof shall be increased by an amount equal
to the amount which would be necessary to amortize a principal sum equal to the
amount by which Tenant’s Adjusted Construction Price exceeds the Construction
Allowance, in 360 equal monthly installments, payable in arrears, bearing
interest at the rate of twelve percent (12%) per annum, with each installment
applied first to the interest then due and payable and the balance to
principal. Said adjusted Base Rental shall be payable monthly in advance, on
the first day of each and every month during the term hereof, without abatement
or set-off unless expressly provided for in this Lease, as provided in Article
6 of this Lease.


 


If Tenant’s Adjusted Construction Price is less than
Twenty-Seven Million Dollars ($27,000,000.00), then the Base Rental provided in
paragraph A of Article 6 hereof shall be an amount equal to the amount
necessary to amortize the principal sum equal to Tenant’s Adjusted Construction
Price, in 360 equal monthly installments, payable in arrears, bearing


 


29

















 


interest at the rate of twelve percent (12%) per annum
plus or minus fifty percent (50%) of the difference between twelve percent
(12%) and the Market Rate (as hereinafter defined), with each installment
applied first to the interest then due and payable and the balance to
principal. Said adjusted Base Rental shall be payable monthly in advance, on
the first day of each and every month during the term hereof, without abatement
or set-off unless expressly provided for in this Lease, as provided in Article
6 of this Lease. For purposes of this paragraph E, the term “Market Rate” shall
mean the average rate of interest, based upon quotes obtained by Delta from
three major Atlanta area banks, on or prior to the Commencement Date, that
Delta would pay as of the Commencement Date for secured conventional
first-mortgage financing, self-liquidating over a term of thirty (30) years and
providing for level annual debt service, in a principal amount not in excess of
the appraised value of the underlying security.


 


F.             Tenant
and Delta shall cooperate in the preparation of a mutually acceptable schedule
for approvals with respect to the plans and specifications for the Premises,
Common Areas and Mechanical/Electrical Facility, which schedule shall provide
timetables for approvals/disapprovals by Tenant and the consequences of failure
to meet such timetables.


 


G.            Delta
agrees to commence construction of the Data Center within fourteen (14) months
of the date of this Lease, provided, however, that Delta shall not be
responsible for any delays resulting from causes outside the control of Delta,
including, but not limited to, causes of the type described in Article 27
hereof, any delays caused by Tenant, any delays resulting from failure to
achieve the stages of completion described in paragraph B, clauses (i) through
(iii) above as of the dates specified therein, and any delays resulting from a


 


30

















 


determination to
build a single-use building for Tenant as provided in paragraph B of this
Article 8 (any such delay being hereinafter referred to as an “Excusable
Delay”). If the commencement of construction of the Building is delayed as a
result of any Excusable Delay, then the period of time within which Delta is to
commence construction of the Data Center shall be extended by the number of
days of such Excusable Delay. If construction is not commenced within fourteen
(14) months of the date of this Lease plus the period of Excusable Delay,
Tenant shall have the right upon thirty (30) days advance written notice to
Delta to terminate this Lease. Upon any such termination of this Lease, neither
Tenant nor Delta shall have any responsibility to reimburse the other for costs
incurred in connection with the selection, approval and acquisition of the
site, or the design or planning of the construction of the Data Center.


 


H.            In
order to protect against violation of the rule against perpetuities as in
effect in the State of Georgia, this Lease shall terminate if the Commencement
Date has not occurred prior to January 1, 2010.


 


ARTICLE 9.           MAINTENANCE OF PREMISES


 


Delta shall maintain, or cause to be maintained, in
good order and repair, in a manner consistent with first-class buildings of a
similar nature, subject to normal wear and tear, the Data Center, with the
exception of improvements made by Tenant, unless otherwise agreed to by Tenant
and Delta.


 


Delta shall prepare, prior to the Commencement Date,
and with the cooperation of Tenant, an operation and maintenance manual,
setting forth the specifications for operation and maintenance of the Data
Center. The operation and maintenance manual shall be subject to the


 


31

















 


approval of Tenant, which approval shall not be
unreasonably withheld or delayed. Delta’s operation and maintenance of the Data
Center shall be performed in accordance with the specifications set forth in
such operation and maintenance manual. All costs and expenses related to the
maintenance of the Data Center shall be included in Operating Expenses;
provided, however, that if any such repair is caused by the negligence or
willful misconduct of Tenant, its partners, their respective directors,
officers or employees or the directors, officers, agents, contractors,
subtenants, invitees or employees of Tenant, then, unless such repairs shall be
governed by the provisions of Article 19 and paragraphs G and H of Article 16,
Tenant shall pay the entire cost of such repair directly to Delta and, if any
such repair is caused by the negligence or willful misconduct of Delta, its
directors, officers, agents, contractors, tenants (other than Tenant), invitees
or employees, Tenant shall not be required to bear any portion of the cost
thereof and Delta shall make such repair at Delta’s sole cost and expense.


 


ARTICLE 10.                         PROVISION OF UTILITIES AND
SECURITY AND OTHER SERVICES


 


A.            Subject
to Article 7 hereof, Delta shall provide, or cause to be provided, all
utilities to the Premises, including, but not limited to, heating, ventilation
and air conditioning, gas, water and electricity.


 


B.            Delta
shall also provide, or cause to be provided, security service protecting the
Data Center and, if requested by Tenant, loading dock, cleaning, lamping,
garbage disposal services, the cost of which shall be included in Operating
Expenses, provided, however, any such services which shall be provided to the
Premises but which shall not be provided to the other portions of the Building
intended for occupancy, shall be billed to Tenant directly, and


 


32

















 


further provided
any such services which shall be provided to the portions of the Building other
than the Premises intended for occupancy but which shall not be provided to the
Premises, shall not constitute Operating Expenses and shall be paid by Delta.


 


C.            Delta
shall prepare, prior to the Commencement Date, and with the cooperation of
Tenant, a services manual, setting forth the services to be provided and
specifications for such services. The services manual shall be subject to the
approval of Tenant, which approval shall not be unreasonably withheld or
delayed. Delta’s performances of services with respect to the Premises shall be
performed in accordance with the specifications set forth in such services
manual.


 


ARTICLE 11.                         ALTERATIONS AND FIXTURES


 


A.            Tenant
shall make no changes, alterations, additions, or improvements (“Alterations”),
nor do any work in connection therewith in, on, or about the Data Center,
including the Premises, without the prior written approval of Delta, which
approval shall not be unreasonably withheld or delayed; provided, however, that
if Tenant has submitted a written request to Delta with respect to a desired
Alteration to the Premises and Delta has refused to consent to such request,
then Tenant may make such Alteration to the Premises, but shall be obligated to
restore the Premises to their original condition as relates to such Alteration,
subject to normal wear and tear, upon the expiration or other termination of
this Lease. Any Alterations made by Tenant, whether with the consent of Delta
or otherwise, are subject to the following additional conditions:


 


33

















 


(i)            the
Alterations must be performed in a first class manner and in compliance with
all applicable laws;


 


(ii)           the
Alterations may not impair the structural integrity of the Building and/or the
Data Center or otherwise permanently disrupt the operation of or substantially
interfere with or interrupt the performance of any of the Building systems;


 


(iii)          if the Alterations will result in a
disruption of services to all or any portion of the Data Center other than the
Premises, although temporary, the timing of such disruption shall be subject to
the approval of Delta, which approval shall not be unreasonably withheld or
delayed; and


 


(iv)          Tenant
must provide Delta with a complete set of as built plans and specifications
relating to such Alterations.


 


During the term hereof Tenant may, at its own expense,
install or place in the Premises, and may substitute and remove, any items of
Tenant’s trade fixtures, equipment and other personal property (including
computer processing equipment) used or useful in Tenant’s business and
installed, erected or placed in the Premises at Tenant’s expense (collectively,
“Tenant’s Removable Property”). Upon expiration or other termination of this
Lease, Tenant shall have the right to remove Tenant’s Removable Property,
provided that Tenant shall, at its own expense, restore and repair any damage
to the Premises resulting from the removal of Tenant’s Removable Property,
normal wear and tear excepted.


 


34

















 


B.            Delta
agrees that it will not make any Alterations to the Data Center that do not
meet the following conditions:


 


(i)            the
Alterations must be performed in a first class manner and in compliance with
all applicable laws;


 


(ii)           the
Alterations may not impair the structural integrity of the Building and/or the
Data Center or otherwise permanently disrupt the operation of or substantially
interfere with or interrupt the performance of any of the Building systems;


 


(iii)          if the Alterations will result in a
disruption of services to the Premises, the Mechanical/Electrical Facility or
the Common Areas, although temporary, the timing of such disruption shall be
subject to the approval of Tenant, which approval shall not be unreasonably
withheld or delayed; and


 


(iv)          Delta
must provide Tenant with a complete set of as built plans and specifications
relating to such Alterations.


 


Data agrees further that it will not make any
Alterations to the Premises, the Mechanical/Electrical Facility or the Common
Areas, other than those described under the definition of the term “Operating
Expenses” herein contained, without obtaining the prior written approval of
Tenant, which approval shall not be unreasonably withheld or delayed.


 


35

















 


C.            An
addition to the space which Tenant or any Subtenant of Tenant may occupy as a
result of any Alterations made the Premises shall be incorporated into and
become part of the Premises for all purposes of this Lease, except as otherwise
provided herein.


 


ARTICLE 12.                         SIGNS


 


Neither Tenant nor any subtenant of Tenant nor Delta
nor any subtenant of Delta (except Tenant) shall erect, install, or place any
signs on or about the exterior of the Data Center without the prior written
approval of Delta or Tenant. Each party shall have the right to select its
interior signage, an such signage shall not be subject to the approval of the
other party,


 


ARTICLE 13.                         LIENS


 


Neither Delta nor Tenant shall permit any mechanics
and materialmen liens to be filed against the Data Center or any part thereof
or Tenant’s or Delta’s interest therein, by reason of work, labor, services or
materials supplied or claimed to have been supplied to, at or on the Data
Center, or any improvements thereto, by anyone or as a result of such party’s
(or such party’s subtenant’s) repairs, alterations or improvements to the Data
Center pursuant to the terms of this Lease or otherwise. If any such lien is
filed or asserted, such party shall, within forty-five (45) days after receipt
of notice of the filing thereof, cause the same to be discharged of record as
to such property or interest by payment, deposit, bond, order of court or
otherwise. Nothing contained in this Lease shall be construed as constituting
the express or implied consent to or permission of Delta to any activity or
conduct that would give rise to any such lien against the Data Center, or any
part thereof.


 


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ARTICLE 14.                         TITLE TO IMPROVEMENTS


 


All alterations or improvements to the Premises made
by Tenant at Tenant’s expense shall be and remain the property of Tenant during
the term of this Lease. Subject to the provisions of Article 11, title to such
improvements and alterations shall immediately, and without further action,
vest in Delta upon the termination of this Lease by expiration or otherwise. Title
to all Tenant’s Removable Property installed in or located on the Premises at
Tenant’s expense shall remain Tenant’s property and Tenant shall have the right
to remove such items in accordance with the terms of Article 11 hereof.


 


ARTICLE 15.                         INDEMNIFICATION


 


A.            Tenant
shall indemnify, defend, and hold harmless Delta, its directors, officers,
agents, and employees from and against any and all claims, actions, judgments,
liabilities, losses, damages, or expenses arising out of Tenant’s use of the
Premises or the conduct of Tenant’s business in the Premises, Tenant’s acts or
omissions in connection with its use of the Common Areas or from any activity
or work which may be permitted or suffered by Tenant in the Premises or from
any breach or default in the performance of any obligation on Tenant’s part to
be performed under the provisions of this Lease or otherwise arising from any
negligence or willful misconduct of Tenant, its partners or their respective
directors, officers or employees or the directors, officers, agents,
contractors, subtenants, invitees or employees of Tenant, occurring at or with
respect to the Data Center or any part thereof, and from any and all reasonable
costs, attorneys’ fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon. Delta shall notify
Tenant of any claim made


 


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against Delta
which would be the subject of the indemnities given herein and Tenant shall
have the right to defend and/or compromise said claim.


 


B.            Delta
shall indemnify, defend and hold harmless Tenant, its partners and their
respective directors, officers and employees and the directors, officers,
employees and agents of Tenant from and against any and all claims, actions,
judgments, liabilities, losses, damages or expenses arising out of Delta’s use
of the space in the Building intended to be occupied exclusively by Delta or a
tenant of Delta (other than Tenant) (“Delta’s Exclusive Space”) or the conduct
of Delta’s business in Delta’s Exclusive Space, Delta’s acts or omissions in
connection with its use of the Common Areas or from any activity or work which
may be permitted or suffered by Delta in Delta’s Exclusive Space or from any
breach or default in the performance of any obligation on Delta’s part to be
performed under the provisions of this Lease or otherwise arising from any
negligence or willful misconduct of Delta or any of its directors, officers,
agents, contractors, tenants (other than Tenant), invitees or employees,
occurring at or with respect to the Data Center or any part thereof, and from
any and all reasonable costs, attorneys’ fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought thereon.
Tenant shall notify Delta of any claim against Tenant which would be the
subject of the indemnities given herein and Delta shall have the right to
defend and/or compromise said claim.


 


ARTICLE 16.                         INSURANCE


 


A.            Tenant
shall obtain and keep in force during the term of this Lease, comprehensive
general liability coverage insurance in an amount not less than $25,000,000


 


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combined single
limit coverage for bodily injury, personal injury, and property damage. Such
insurance policy or policies shall contain contractual liability endorsement
which shall cover Tenant’s obligations pursuant to paragraph A of Article 15 of
this Lease and shall name Delta as an additional insured to the extent of
Delta’s interest as set forth in said Article 15, paragraph A. Tenant shall
obtain and keep in force during the term of this Lease standard fire and
extended coverage casualty insurance, including debris removal, upon all
Tenant’s Removable Property, and these insurance policies shall be for a
minimum of 90% of the replacement value; provided, however, that if Tenant
requests, Delta shall maintain such insurance at Tenant’s sole cost and expense
with loss payable to Tenant. Additionally, Tenant shall obtain and keep in
force during the term of this Lease Workers’ Compensation insurance covering
all persons employed by Tenant in the amounts required by the applicable laws
and Employer’s Liability insurance in an amount not less than $500,000 to cover
Tenant’s employees.


 


B.            All
insurance provided for in paragraph A of this Article shall be paid by the
Tenant. Furthermore, if Tenant’s use or occupancy of the Premises, for any
purpose other than as a Computer Data Operations Center, increases the cost of
any insurance carried by Delta in reference to the Data Center, or any part
thereof, then Tenant shall be responsible for such increased premiums and shall
promptly reimburse Delta for its cost of such increased premiums.


 


C.            Delta
shall obtain and keep in force during the term of this Lease, comprehensive
general liability coverage insurance in an amount not less than $25,000,000
combined single limit coverage for bodily injury, personal injury, and property
damage. Such insurance policy or policies shall contain Contractual liability
endorsement which shall cover


 


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Delta’s
obligations pursuant to paragraph B of Article 15 of this Lease and shall name
Tenant as an additional insured to the extent of Tenant’s interest as set forth
in said Article 15, paragraph B.  Delta
shall obtain and keep in force during the term of this Lease standard fire and
extended coverage casualty insurance, including debris removal, upon the Data
Center and all portions and components thereof including Tenant’s Alterations,
and such insurance policies shall be for a minimum of 90% of the replacement
value. During the construction period, this insurance shall be carried as
Builder’s Risk insurance. At the request of Tenant, Delta will name Tenant as an
additional insured for business interruption and loss of use and occupancy
under Delta’s builder’s risk policy during the period of construction provided
(i) any additional cost by reason of so naming Tenant as an additional insured
shall be paid by Tenant and (ii) such insurance is obtainable at such time. If
Delta does not carry business interruption and loss of use and occupancy
insurance covering the Data Center during the period of construction, then
Tenant shall pay the entire cost of such coverage, if Tenant requests such
coverage. Additionally, Delta shall obtain and keep in force during the term of
this Lease Workers’ Compensation insurance covering all persons employed by
Delta in the amounts required by the applicable laws and Employer’s Liability
insurance in an amount not less than $500,000 to cover Delta’s employees. If
requested by Tenant, Delta will obtain and keep in force insurance Covering
Tenant’s rental obligations under this Lease, however, such insurance shall be
at the sole cost and expense of Tenant with loss payable to Tenant. Any
deductible provisions in the standard fire and extended coverage casualty
insurance maintained by Delta shall be subject to the approval of Tenant, which
approval shall not be unreasonably delayed. Any deductibles pursuant to a
provision so approved and associated with a casualty to the Premises shall be
paid in full by Tenant to Delta,


 


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and any such
deductible associated with a casualty to the Common Areas or Mechanical/
Electrical Facility shall be treated as an Operating Expense as provided in
Article 1 of this Lease.


 


D.            All
insurance to be maintained by Delta or Tenant under this Lease shall be
procured from financially sound and reputable insurance companies reasonably
satisfactory to Delta and Tenant. Prior to taking occupancy of the Premises,
Delta and Tenant shall each deliver to the other certificates evidencing such
insurance required to be maintained by Delta or Tenant hereunder. The policies evidencing
such insurance shall provide that they shall not be cancelled or modified
except after thirty (30) days prior written notice of intention to modify or
cancel has been given to Delta and Tenant. At least ten (10) days prior to the
expiration date of any policy to be maintained by Delta or Tenant hereunder,
Delta or Tenant, as the case may be, shall deliver to the other a renewal
policy or “binder” therefor.


 


E.             Neither
Delta nor Tenant shall carry insurance covering the hazards provided for in
paragraphs A and C hereof, under separate policies of insurance, whether or not
in limits in excess of the amounts provided in such paragraphs A and C,
respectively, unless such insurance shall also name both Delta and Tenant as
additional or named insureds, as provided in said paragraphs A, C and G,
respectively.


 


F.             Neither
Tenant nor Delta shall use the Premises or the Data Center nor permit the
Premises or the Data Center to be used nor acts to be done thereon, which will
cause a cancellation of the insurance maintained by Tenant or Delta specified
in this Article 16. Tenant and Delta shall each, at its own expense, comply
with all insurance company requirements pertaining to Tenant’s or Delta’s use
of the Data Center, or any part thereof (other than


 


41

















 


requirements
necessitating capital replacements, capital improvements or other capital
expenditures to the Data Center, which replacements, improvements or
expenditures shall be governed by the provisions of Article 1 hereof), so that
the Data Center shall at all times be insurable for fire, extended coverage and
risks as set forth in this Article 16.


 


G.            Delta
and Tenant each agrees to include in its fire insurance policies covering the
Data Center, Premises or Alterations thereto, as the case may be, and/or
personal property, fixtures and furnishings located at the Data Center or the
Premises, as the case may be, appropriate clauses pursuant to which the
insurance companies (i) waive all right of subrogation against the other, its
employees and agents, with respect to losses payable under such policies and/or
(ii) agree that such policies shall not be invalidated should the insured waive
in writing prior to a loss any or all rights of recovery against any party for
losses covered by such policies. If either party at any time is unable to
obtain in said policies either of the clauses described in the preceding
sentence, that party shall, if possible, have the other named in such policies
as one of the assureds but with loss adjusted with and payable to the party
carrying the insurance. If a party shall be named as one of the assureds in
accordance with the foregoing, the party agrees to endorse promptly to the
order of the party carrying the insurance, without recourse, any check, draft
or order for the payment of money representing the proceeds of any such policy
or representing any other payment growing out of or connected with said
policies which may through oversight or otherwise be made payable to such
party, and each party does hereby irrevocably waive any and all rights in and
to such proceeds and payments. If any additional premium is charged for any
such clause or clauses or naming, the party carrying the insurance


 


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shall be released
from the obligation hereby imposed unless the other party shall agree to pay
such additional premium.


 


H.            Provided
that Delta’s and Tenant’s right of full recovery under its policy or policies
aforesaid is not adversely affected or prejudiced thereby, Delta and Tenant
hereby waive any and all right of recovery which either may otherwise have
against the other party, its servants, agents and employee, for loss or damage
occurring to the Data Center or the Premises, as the case may be, or any part
thereof, or to the personal property of Delta or Tenant, as the case may be, to
the extent that the loss or damage is covered by insurance, notwithstanding
that such loss or damage may result from the negligence or fault of the other
party, its servants, agents or employees. If either party shall be or become
partially or wholly a self-insurer by not maintaining insurance in an amount
sufficient to prevent such party from becoming a co-insurer under the usual
co-insurance clause, by maintaining insurance containing deductibles in excess
of those approved pursuant to paragraph C of this Article 16 or by not
maintaining insurance, then it shall be deemed for the purpose of the foregoing
waivers that any loss or damage suffered by such party was covered by said
party’s insurance to the extent that it would have been so covered had said
party maintained fire insurance with extended coverage in an amount sufficient
to prevent such party from becoming a co-insurer under the usual co-insurance
clause pursuant to a policy or policies providing for deductibles in the amount
or amounts approved pursuant to paragraph C of this Article 16.


 


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ARTICLE 17.                         RIGHT OF ENTRY


 


Tenant shall permit Delta and its agents to enter upon
the Premises at all reasonable times, and upon reasonable prior notice in light
of the circumstances, for the purpose of inspecting the Premises, making
repairs or alterations or providing services in accordance with the terms of
this Lease, showing the Premises to prospective tenants during the last year of
the term hereof or while any Event of Default remains uncured or to purchasers
or lenders or for posting such reasonable notices as Delta may desire to
protect the public safety or for performing any other reasonable acts related
to the safety, protection or preservation of the Premises and/or the Data
Center.


 


ARTICLE 18.                         ASSIGNMENTS,
ENCUMBRANCES AND SUBLETTING


 


A.            Assignments,
Encumbrances and Subletting by Tenant


 


(a)           Except as expressly
permitted pursuant to this Article 18, Tenant shall not, without the prior
written consent of Delta, assign, transfer, pledge, mortgage or otherwise
encumber this Lease or any interest herein, or Tenant’s improvements to the
Data Center, by operation of law or otherwise, or sublet the Premises or any
part thereof, or permit the use of the Premises by any party other than Tenant.
Any of the foregoing acts without such consent shall be void and shall, at the
option of Delta, after notice and an opportunity to cure as provided in Article
25, paragraph A, subparagraph (ii) hereof, constitute an Event of Default
hereunder.


 


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(b)           Notwithstanding the
provisions of subparagraph (a) hereof, Tenant may assign this Lease, without
Delta’s consent, to any Qualified Assignee (as hereinafter defined); provided,
that such Qualified Assignee shall execute and deliver to Delta an agreement in
form and substance reasonably satisfactory to Delta whereby such Qualified Assignee
shall agree to be bound by and upon all the covenants and agreements set forth
in this Lease on the part of Tenant to be performed from and after the date of
such assignment. A Qualified Assignee means any entity resulting from a merger
or consolidation with Tenant, or any entity which acquires all or substantially
all of the assets of Tenant. In the event of an assignment of this Lease to a
Qualified Assignee which otherwise complies with the provisions of this
subparagraph (b), Tenant shall and shall be deemed to be released from all
obligations and liabilities of Tenant to be performed from and after the date
of such assignment.


 


(c)           Notwithstanding the
provisions of subparagraph (a)   hereof,
Tenant may sublease the Premises, or a portion thereof, without Delta’s
consent, to


 


(i)            any
entity in which Tenant has an equity interest in excess of twenty-five percent
(25%), provided that such sublessee uses the Premises as a Computer Data
Operations Center or, if Tenant has received Delta’s approval with respect to a
different use of the Premises in accordance with Article 5 hereof, such
approved use; and/or


 


45

















 


(ii)           any
entity performing functions on behalf of Tenant for use in connection with the
business being conducted by Tenant in the Premises.


 


(d)           Notwithstanding the
provisions of subparagraph (a) hereof but subject to subparagraph (e) below,
Tenant shall have the right from time to time to sublease (i) during the
five-year period commencing on the Commencement Date, an aggregate of not more
than sixty percent (60%) of the Premises, and (ii) during the remainder of the
initial term and any renewal term hereof, an aggregate of not more than fifty
percent (50%) of the Premises, for a term or terms which shall end not later
than the day preceding the expiration date of the term of the Lease or the then
current renewal term, provided Tenant obtains Delta’s prior written consent as
to the intended use and manner of use of the portion of the premises to be so
subleased if such portion is to be used other than as a Computer Data
Operations Center, which consent shall not be unreasonably withheld or delayed.


 


(e)           Prior to subleasing any
space in the Premises pursuant to subparagraph (d) above, Tenant shall offer
such space to Delta upon specified terms. If Delta declines to take such space
upon the terms so specified, then Tenant shall have the right to sublease such
space, but only upon such specified terms (or upon terms more favorable to
Tenant than such specified terms) and in accordance with subparagraph (d)
above; provided, however, that if Tenant


 


46

















 


desires to enter into a
sublease of space pursuant to subparagraph (d) above within the initial six
months of the term hereof, then Tenant shall have the right to do so pursuant
to such subparagraph (d) provided (i) that Tenant offered such space to Delta
at or within one (1) month prior to the commencement of construction of the
Data Center upon specified terms and Delta declined to take such space upon
such specified terms, and (ii) the sublease shall be upon such specified terms
or upon terms more favorable to Tenant. If Delta has declined to take space
offered pursuant to this subparagraph (e) and Tenant has not subleased such
space within six (6) months of the date Delta declined to take such space (or
within the first six (6) months of the term of this Lease in the case of space
offered to Delta at or prior to commencement of construction), then Tenant shall
be required to again offer such space to Delta, as provided in this
subparagraph (e), prior to any subleasing of such space by Tenant pursuant to
subparagraph (d) hereof.


 


(f)            Except with respect to
an assignment permitted under subparagraph (b) above, no subletting or
assignment shall release Tenant of Tenant’s obligation or alter the primary
liability of Tenant to pay the rental and perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Delta from any other
person or entity shall not be deemed to be a waiver by Delta of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting.


 


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B.            Lease
by Delta of Portions of the Building to Entities Other than Tenant


 


(a)           Except as expressly
provided in this Article 18, Delta agrees that, so long as the Lease is in
effect, Delta will not lease space in the Building to any entity other than
Tenant, without obtaining the prior written consent of Tenant if such space is
to be used for any purpose other than as a Computer Data Operations Center,
which consent shall be limited to use and manner of use of such space by the
prospective lessee and shall not be unreasonably withheld or delayed. Prior to
leasing any space pursuant to this subparagraph (a) (other than space leased
pursuant to subparagraph (b) of this paragraph B), Delta shall offer such space
to Tenant upon specified terms. If Tenant declines to lease such space upon the
terms so specified, then Delta shall have the right to lease such space, but
only upon such specified terms (or terms more favorable to Delta than such
specified terms) and in accordance with this subparagraph (a); provided,
however, that if Delta desires to lease space pursuant to this subparagraph (a)
within the initial six months of the term of this Lease, then Delta shall have
the right to do so pursuant to this subparagraph (a) provided (i) that Delta
offered such space to Tenant for lease at or within one (1) month prior to the
commencement of construction of the Data Center upon specified terms and Tenant
declined to lease such space upon such specified terms, and (ii) the lease
shall be upon such specified terms or upon terms more favorable to Delta. If
Tenant has declined to lease space offered pursuant to this subparagraph (a)
and Delta has not leased such space within six (6) months of the date Tenant
declined to lease such space


 


48

















 


(or within the first six
(6) months of the term of this Lease in the case of space offered to Tenant at
or prior to the commencement of construction), then Delta shall be required to
offer such space to Tenant, as provided in this subparagraph (a), prior to any
leasing of such space by Delta pursuant to this subparagraph (a).


 


(b)           Notwithstanding
subparagraph (a) of this paragraph B, Delta shall have the right to lease space
in the Building, without the consent of Tenant and without first offering such
space to Tenant as provided in subparagraph (a) of this paragraph B, to


 


(i)            any
entity in which Delta has an equity interest in excess of twenty-five percent
(25%), provided that such lessee uses such space as a Computer Data Operations
Center, or, if Delta has received Tenant’s approval with respect to a different
use of such space in accordance with Article 5 hereof, for such approved use;
and/or


 


(ii)           any
entity performing functions on behalf of Delta for use in connection with the
business being conducted by Delta in the Building.


 


ARTICLE 19.                         DAMAGE OR DESTRUCTION OF
PREMISES


 


A.            In
the event that fire damage or other casualty is sustained at any time to any
portion of the Data Center and (1) as a result of said casualty the Premises or
a portion thereof are rendered untenantable or, by reason of such damage to the
Data Center, the Premises


 


49

















 


or a portion
thereof are rendered unusable for the conduct of Tenant’s business therein, (2)
in the judgment of a reputable independent architect selected by Tenant in good
faith for the purpose of determining the time period which would be required to
repair and restore the damage caused by such casualty, such damage cannot be
repaired within one (1) year from the date of said casualty, and (3) the damage
is of such extent and nature as to render the remainder of the Premises
(exclusive of the portions of the Premises so rendered untenantable or unusable
for the conduct of Tenant’s business therein) unsuitable or inadequate for the
conduct of Tenant’s business therein, then Tenant shall have the right to
terminate this Lease by written notice to Delta within forty-five (45) days
after the date of said damage.


 


B.            If
this Lease is not terminated pursuant to paragraph A above, then Delta shall
repair said damage (other than damage to Tenant’s Removable Property);
provided, however, in no event shall Delta be required to repair such damage if
such damage occurs during the last five (5) years of the initial term of this
Lease or any renewal term thereof; provided, however, that if such damage
occurs during the last five (5) years of the initial term of this Lease or the
first renewal term, then Tenant shall have the option to exercise its first or
second option to renew, as appropriate, at a fair market rental value to be
determined in the manner set forth in Article 4 hereof, by providing Delta with
written notice of such election to renew within thirty (30) days after the
later of (i) the date of said damage, or (ii) the date of notification to
Tenant of the judgment of the independent architect referred to in paragraph A
above. If Tenant so elects to renew, Tenant shall have no right to rescind such
election to renew and Delta shall be obligated to repair such damage (other
than damage to Tenant’s Removable Property).


 


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ARTICLE 20.                         CONDEMNATION


 


If all or part of the Premises, the Common Areas or
the Mechanical/Electrical Facility shall be taken as a result of the exercise
of the power of condemnation or eminent domain, this Lease shall terminate as
to the part so taken as of the date of taking, and, in the case of a partial
taking, Tenant shall have the right to terminate this Lease as to the balance
of the Premises (or if such taking did not include any portion of the Premises,
as to the whole of the Premises) by written notice to Delta within thirty (30)
days after such date, provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the Premises,
Common Areas or Mechanical/Electrical Facility taken shall be of such extent
and nature as to render the remainder of the Premises or the whole of the
Premises, as the case may be, unsuitable or inadequate for the conduct of
Tenant’s business therein (but assuming the award is applied to the
reconstruction of the Data Center to a complete architectural unit in
compliance with law). In the event of a total taking of the Premises, or a
partial taking of the Premises or of the whole or part of the Common Areas
and/or the Mechanical/Electrical Facility which renders the remainder of the
Premises (or, if such taking did not include any portion of the Premises, which
renders the whole of the Premises) unsuitable or inadequate for the conduct of
Tenant’s business therein and results in a termination of this Lease, Tenant
shall be entitled to appear in the action and prove and receive a portion of
the award equal to the bargained value of Tenant’s leasehold estate, and to
separately appear and prove and to receive an award for Tenant’s Removable
Property (or any consequential damage thereto) and for moving expenses. The
entire balance of the award shall belong to Delta and Tenant shall execute and
deliver to Delta any assignment or other instrument evidencing Tenant’s release
of any claim thereto as


 


51

















 


Delta shall reasonably require. If Tenant shall be
entitled to maintain a separate action for the value of its leasehold estate and
for its moving expenses and the value of its Removable Property (or any
consequential damage thereto), then Tenant shall maintain such action
separately, and both Tenant and Delta shall be entitled to retain the award
granted to each in their respective separate actions. If Tenant shall not be
entitled to maintain a separate action for the value of its leasehold estate,
and the condemning authority shall not make a determination allocating the
award between Tenant and Delta as aforesaid, then, provided the award
encompasses the respective interests described above, the award shall be
allocated between Tenant and Delta on the basis of the relative values of their
respective interests specified above. In the event of a partial taking which
does not result in a termination of this Lease, Delta shall be entitled to the
entire award but shall apply such award, to the extent necessary and only if
reasonably feasible, to the reconstruction of the Data Center to a complete
architectural unit in compliance with law; provided, if the award is
insufficient to cover the cost of such reconstruction, Delta shall have the
right to terminate this Lease, unless Tenant pays to Delta the amount by which
the cost of such reconstruction exceeds the award. In the event of a partial
taking of the Premises, Common Areas or Mechanical/Electrical Facility which
does not result in a termination of this Lease, the Base Rental to be paid
shall be reduced proportionately, based upon the proportion that the fair
market rental value of the Premises immediately following the condemnation
(giving effect to restoration of the Premises) bears to the fair market rental
value of the Premises immediately prior to the condemnation, such reduction to
take effect as of the date of the taking.


 


For purposes of this Article, the Premises, Common
Areas or Mechanical/Electrical Facility, or a part thereof, as the case may be,
shall be deemed to have


 


52

















 


been taken or condemned on the date on which actual possession
of the Premises, Common Areas or Mechanical/Electrical Facility, or a part
thereof, as the case may be, is acquired by any lawful power or authority, or,
the date title vests therein, whichever is earlier.


 


Tenant’s right to appear and make claim in any
condemnation proceeding shall survive the termination of this Lease and all
rights of Delta and Tenant under this Article 20 shall survive termination of
this Lease.


 


ARTICLE 21.                         INGRESS
AND EGRESS


 


Tenant, its employees, visitors and suppliers of material
and services shall have full and free rights of ingress and egress to and from
the Premises seven (7) days a week, twenty-four hours per day, subject to
security procedures reasonably acceptable to Delta and Tenant.


 


ARTICLE 22.                         SALE
OF DATA CENTER AND RIGHT OF FIRST REFUSAL


 


A.            Tenant
shall have a right of first refusal with respect to the Data Center as
hereinafter set forth.        If at any
time during the term of this Lease Delta shall receive a bonafide offer from
any third party (which does not have the power of eminent domain) for the
purchase of the Data Center (excluding any offer made as part of an offer to
purchase all or substantially all of the assets of Delta and excluding any
offer to purchase in connection with a “sale/leaseback” transaction referenced
in paragraph C of this Article 22), which offer Delta shall desire to accept,
Delta shall promptly deliver to Tenant a copy of such offer (the “Offer
Notice”). The delivery of the Offer Notice to Tenant shall constitute a written
offer by Delta to sell the Data Center to Tenant upon the same terms and
conditions set forth in the Offer Notice. Tenant may, within thirty (30)
business days after receipt of the Offer Notice, elect to purchase the Data


 


53

















 


Center on the same
terms and conditions as those set forth in the Offer Notice by delivering to
Delta within said thirty (30) business days a written acceptance of the offer.
If Tenant accepts the offer, Delta shall convey the Data Center to Tenant in
accordance with the provisions of this Article and Tenant shall pay to Delta
the purchase price and other consideration as set forth in the Offer Notice. If
Tenant fails to accept the offer within the time period herein specified,
Tenant’s right of first refusal shall terminate and Landlord shall be free to
complete the proposed sale of the Data Center, provided that the terms on which
such sale is consummated are not more favorable to the purchaser than the terms
offered to Tenant pursuant to the Offer Notice and such sale is consummated
within 180 days from the date the Offer Notice is given.


 


In the event that the
third party purchaser that is the subject of an Offer Notice is an Affiliate of
Delta, then Tenant’s right of first refusal as set forth herein shall remain in
full force and effect following a transfer or other conveyance of the Data
Center to such Affiliate.


 


B.            Delta
agrees that it will not enter into a sale of the Data Center to a third party
prior to the Commencement Date of this Lease, other than in connection with a
sale of all or substantially all of the assets of Delta or in connection with a
“sale/leaseback” transaction referenced in paragraph C of this Article 22.


 


C.            Tenant
acknowledges that nothing contained in this Lease is intended to preclude or
impair Delta from entering into a “sale/leaseback” transaction, so called,
whereby Delta conveys the site of the Data Center or the site of the Data
Center and the improvements thereon, and thereupon leases as lessee such site
or such site and the improvements thereon, as the case may be, from its
grantee. In the event of such a “sale/leaseback” of this Lease, Delta


 


54

















 


shall retain the
landlord’s interest in and to this Lease. Any such “sale/leaseback” shall be
subject to this Lease which shall remain in full force and effect and the
priority hereof shall be unaffected by such “sale/leaseback.” Without limiting
the effect of the immediately preceding sentence, the lease created by the “sale/leaseback”
transaction and any encumbrances suffered or created in connection with such
“sale/leaseback,” whether same shall encumber the grantee’s fee or Delta’s
leasehold estate, shall be and remain subject and subordinate to this Lease.


 


D.            In
the event of a sale or conveyance by Delta of the Data Center, the same shall
operate to release Delta from any liabilities arising after such sale or
conveyance upon any of the covenants or conditions, express or implied, herein
contained in favor of Tenant, provided (i) such successor in interest has at
such time a net worth of at least Twenty-Five Million Dollars ($25,000,000.00),
or (ii) if such successor in interest does not have at such time a net worth of
at least Twenty-Five Million Dollars ($25,000,000.00), Tenant shall have the
right in the event of any default by such successor in interest to cure such
default and to offset the cost thereof against the Rental due hereunder. The
right of offset described in clause (ii) immediately above shall be subject to
the following additional conditions: (a) said right of offset shall terminate
with respect to such successor in interest at the end of three (3) years from
the date of Such sale or conveyance if such successor in interest has performed
its obligations as landlord under this Lease for a period of three (3) years
from the date of sale or conveyance to said successor in interest, (b) Tenant
shall not be entitled to exercise said right of offset unless Tenant has
provided such successor in interest and the holder of any first mortgage
affecting the Data Center with notice of such default (which Tenant shall be
required to do only if Tenant has been furnished with the name of such
successor in interest and such first mortgagee and the address to


 


55

















 


which notices are
to be sent, and, in the case of a first mortgage, a copy thereof) and thirty
(30) days have elapsed after such notice, within which period such parties have
failed to cure such default (Tenant shall have the right, to cure such
non-performance and to offset the cost thereof against the Rental due hereunder
without prior notice to and without any grace period in the event of
non-performance involving failure to maintain the insurance required under this
Lease or to renew or replace such insurance prior to ten (10) days before the
expiration thereof or failure to make physical repairs to the Data Center in
cases of emergency), and (c) said right of offset shall be subject to Article
27, to the extent applicable under the provisions of this Lease, and paragraph
D of Article 25 of this Lease. In the event of any sale or conveyance as a
result of which Delta shall be released from liabilities arising after such
sale or conveyance, Tenant agrees to look to such successor in interest to
Delta with respect to all such liabilities arising from and after such sale or
conveyance. In the event of a sale, conveyance or transfer by Delta, or any
successor in interest to Delta, of the Data Center, the grantee shall succeed
to the landlord’s interest in this Lease and shall be deemed to have assumed,
from and after the date of such sale, transfer or conveyance, and be bound by,
all covenants and agreements on the part of Delta under this Lease to be
performed.


 


ARTICLE 23.                         COMPLIANCE
WITH LEGAL REQUIREMENTS


 


Tenant covenants that, during the term of this Lease,
Tenant shall, at its expense, comply promptly with all covenants, conditions,
and restrictions and all applicable laws, statutes, ordinances, zoning
restrictions, rules, regulations, orders, and any requirements of duly
constituted public authorities now or hereafter in any manner affecting the
Premises, whether or not any such laws, ordinances, or regulations which may
hereafter be enacted involve a change


 


56

















 


of policy on the part of the governmental body
enacting the same (collectively, the “Legal Requirements”); provided, that if
such compliance requires repairs, alterations or improvements to the Data
Center which are not specific to Tenant’s particular manner of use of the
Premises other than as a Computer Data Operations Center, the cost of such
repairs, alterations or improvements shall be paid by Delta and shall be part
of Operating Expenses, unless capital in nature, in which case such costs shall
be treated as described in Article 1 hereof with respect to capital
improvements. Notwithstanding anything to the contrary contained herein, Tenant
shall have the right to contest by appropriate proceedings diligently conducted
in good faith, in the name of Tenant or Delta or both, the validity or
application of any Legal Requirement. Delta will cooperate reasonably, at
Tenant’s expense, in any such contest, including joining in such contest as a
party plaintiff or defendant, or bringing or allowing Tenant to bring or defend
in the name of Delta any such contest. Tenant shall also have the right to
delay compliance therewith until the final determination of any such
proceeding, provided compliance with the same pending the prosecution of such
proceeding may be delayed without subjecting Delta or Tenant to any criminal
liability and without subjecting the Data Center, or any part thereof, to loss
or forfeiture and provided Tenant indemnifies Delta during the process of such
contest and provides assurances of indemnification reasonably satisfactory to
Delta.


 


ARTICLE 24.                         LATE PAYMENTS


 


In the event that Tenant shall fail to pay to Delta on
the date when due any payment owing to Delta pursuant to the terms of this
Lease, said late payment shall bear interest at the rate of one percent (1%)
per month (twelve percent (12%) per annum) from the date due and payable until
the same shall have been fully paid.


 


57

















 


ARTICLE 25.                         DEFAULT AND DELTA’S REMEDIES


 


A.            Each
of the following shall be deemed to be an ‘Event of Default’ by Tenant under
this Lease:


 


(i)            the
failure of Tenant to pay when due any Rental or any other payment required
pursuant to this Lease and the failure to cure such default for a period of ten
(10) days after Delta shall have given Tenant a notice specifying such default;
or


 


(ii)           the
failure of Tenant to perform any other covenant, term, or condition of this
Lease to be performed or observed by Tenant and the failure to cure such
default within a period of thirty (30) days after written notice to Tenant by
Delta thereof; or


 


(iii)          if Tenant shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to pay its
debts as they become due or shall file a petition in bankruptcy, or shall be
adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
the material allegations of a petition filed against it in any such proceeding,
or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Tenant or any material part of its properties; or


 


58

















 


(iv)          if
within sixty (60) days after the commencement of any proceeding against Tenant
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceeding shall not have been dismissed, or if, within
sixty (60) days after the appointment without the consent or acquiescence of
Tenant, of any trustee, receiver or liquidator of Tenant or of any material
part of its properties, such appointment shall not have been vacated; or


 


(v)           the
abandonment of the Premises by Tenant (other than in connection with a claim of
constructive eviction asserted in good faith by Tenant).


 


B.            Upon
the occurrence of any Event of Default, then Delta may, at its option, pursue
any one or more of the following remedies, without any notice or demand
whatsoever, except as expressly provided: (i) terminate this Lease by written
notice to Tenant, whereupon this Lease shall end, provided that no such
termination of this Lease shall relieve Tenant of its liability and obligations
under this Lease incurred prior to such termination; or (ii) as Tenant’s agent,
without terminating this Lease, enter upon and rent the Premises at the best
price obtainable by reasonable effort, without advertisement, and by private
negotiations, for any term Delta deems proper. Tenant shall remain liable to
Delta for the deficiency, if any, between the Rental and other sums payable by
Tenant hereunder and the rent obtained by Delta on reletting, after deducting
any attorney’s fees, commissions, and other expenses paid by Delta


 


59

















 


with respect to
such reletting.  Entry pursuant to this
paragraph B shall not be undertaken without process of law, unless Tenant has
surrendered this Lease or has vacated the Premises.


 


C.            In
the event Delta terminates this Lease as provided in Section B, above, then,
and in said event, Delta shall have the following additional rights and
remedies against Tenant:


 


(i)            Tenant,
until the end of what would have been the term of this Lease in the absence of
such termination and whether or not the Premises or any part thereof shall have
been relet, shall be liable to Delta for, and shall pay to Delta, as liquidated
and agreed current damages for Tenant’s default (a) the Rental and other sums
which would be payable under this Lease by Tenant in the absence of such
termination, less (b) the net proceeds, if any, of any reletting effected for
the account of Tenant after deducting from such proceeds all of Delta’s
expenses in connection with such reletting (including without limitation, all
repossession costs, brokerage commissions, legal expenses, attorney’s fees and
expenses of preparation for such reletting); Tenant will pay such current
damages monthly on the days on which the Rental would have been payable under
this Lease in the absence of such termination, and Delta shall be entitled to
recover the same from Tenant on each such day; Delta will attempt in good faith
to rent the Premises following the occurrence of an Event of Default by


 


60

















 


Tenant hereunder,
provided Tenant is no longer in occupancy of the Premises;


 


(ii)           At
any time after such termination, whether or not Delta shall have collected any
current damages as aforesaid, Delta shall be entitled to recover from Tenant,
and Tenant shall pay to Delta upon demand, as and for liquidated and agreed
final damages for Tenant’s default and in lieu of all current damages beyond
the date of such demand, an amount equal to the present value (discounted at
the statutory legal rate in effect in Georgia as of the date of such
calculation) of the excess, if any, of (a) the aggregate of the Rental and
other sums which would be payable under this Lease from the date of such demand
(or, if it be earlier, the date to which Tenant shall have satisfied in full its
obligations under clause (i), above, to pay current damages) for what would be
the then unexpired term of this Lease in the absence of such termination over
(b) the fair market rental value of the Premises for the same period.


 


D.            Notwithstanding
any other provision hereof, where any default (other than a payment default
described in Article 25, paragraph A, subparagraph (i) hereof) by either party
under this Lease is of such a nature that it cannot be cured within the time
otherwise permitted herein, then said default can be cured if the party in
default commences the necessary curative action within said time and diligently
proceeds with said curative action thereafter until completion and so long as
the defaulting party diligently proceeds with said curative action, such


 


61

















 


party shall not be
considered to be in default hereunder and no Event of Default shall or shall be
deemed to have occurred hereunder.


 


E.             All
Delta’s rights and remedies hereunder shall be nonexclusive, cumulative and in
addition to all other rights and remedies it may have at law or in equity.


 


F.             Notwithstanding
anything to the contrary contained herein, in the event Delta elects to
terminate this Lease as a result of the occurrence of an Event of Default
hereunder, it shall give Tenant a notice of intention to end the term of this
Lease at the expiration of five (5) days from the date of the giving of such
notice of intention, and, in the event such notice is given, this Lease and the
term and estate hereby granted shall terminate upon the expiration of such five
(5) days.


 


ARTICLE 26.                         HOLDING
OVER


 


This Lease shall terminate and become null and void
without further notice upon the expiration of the term herein specified, and
any holding over by Tenant after such expiration shall not constitute a renewal
hereof or give Tenant any rights under this Lease, except as otherwise herein
provided, it being understood and agreed that this Lease cannot be renewed,
extended, or in any manner modified except in writing signed by both parties
hereto and as otherwise expressly provided herein. If Tenant shall hold over
for any period after the expiration of said term, Delta may, at its option,
exercised by written notice to Tenant, treat Tenant as a tenant from
month-to-month commencing on the first (1st) day following the expiration of
this Lease and subject to the terms and conditions herein contained except that
the Base Rental, which shall be payable in advance, shall be one hundred fifty
percent (150%) of the Base Rental


 


62

















 


applicable at the date of expiration. If Tenant fails
to surrender the Premises upon the expiration of this Lease despite demand to
do so by Delta, Tenant shall indemnify and hold Delta harmless from all loss or
liability, including without limitation, any claims made by any succeeding
Tenant founded on or resulting from such failure to surrender. This Article 26
shall survive the termination of this Lease, by lapse of time or otherwise.


 


ARTICLE 27.                         UNAVOIDABLE DELAY


 


If either party hereto is delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure of
power, restrictive governmental laws or regulations, riots, insurrection, or
other reason of like nature not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease, then performance of
that act shall be excused for the period of the delay and the period of the
performance of that act shall be extended for a period equivalent to the period
of such delay; provided, however, the provisions of this Article 27 shall not
relieve Tenant of its obligation to pay Rental and other charges and costs as
required by the other provisions of this Lease and nothing herein shall extend
the term of this Lease beyond the term set forth in Article 3 hereof or as such
term may be extended pursuant to Article 4 hereof.


 


ARTICLE 28.                         NOTICES


 


All notices given or required herein shall be deemed
sufficiently delivered as of the date of receipt if delivered in person, or as
of the third business day following the date of posting if sent United States
mail, certified or registered, postage prepaid, to the addresses


 


63

















 


specified below or at such other address as such
parties shall specify in accordance with this Article.


 


If to Delta:


 


Delta
Air Lines, Inc.

Hartsfield Atlanta International Airport

Atlanta, Georgia 30320


Attention:       Assistant Vice
President-Properties


 


If to Tenant:


 


c/o
Delta Air Lines, Inc.

1030 Delta Boulevard

Atlanta, Georgia 30320-6001


Attention:       Chief Executive Officer of

WORLDSPAN, L.P.


Telecopier
Number: (404) 765-5963


 


ARTICLE 29.                         WAIVERS


 


No waiver by Delta or Tenant of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by the other party of the same or any other provision. Delta’s or
Tenant’s consent to or approval of any act shall not be deemed to render
unnecessary the obtaining of Delta’s or Tenant’s consent to or approval of any
subsequent act by the other.


 


ARTICLE 30.                         SCOPE AND AMENDMENT


 


This Lease is and shall be considered to be the entire
agreement between the parties hereto with respect to the leasing of the
Premises and shall supersede any prior agreements between said parties. All
negotiations and oral agreements acceptable to both parties are included
herein. Delta makes no representations to Tenant beyond those contained in this


 


64

















 


Lease and all reliance by Tenant with respect to any
representations is solely upon the representations set forth in this Lease. No
amendment or other modification of this Lease shall be effective unless in a
writing signed by the parties hereto.


 


ARTICLE 31.                         MISCELLANEOUS


 


A.            Time
is of the essence of this Lease.


 


B.            The
Article headings herein are used only for the purpose of convenience and shall
not be deemed to contain or limit the subject matter of the Articles hereof,
nor to be considered in the construction thereof.


 


C.            Each
and all of the obligations, covenants, conditions and restrictions of this
Lease shall inure, subject to the restrictions against assignments and
subletting in this Lease contained, to the benefit of and be binding upon and
enforceable against, as the case may require, any assignee, transferee,
grantee, sublessee, and other successor in interest of Delta or Tenant, as the
case may require.


 


D.            Any
provision of this Lease determined to be invalid, void or unenforceable by a
court of competent jurisdiction, shall in no way affect any other provision
hereof.


 


E.             This
Lease shall be governed by and construed and enforced in accordance with the
laws of the State of Georgia. Except with respect to choice of law, all
disputes between Tenant and Delta with respect to the terms of this Lease and
the obligations of each party hereunder (other than possessor remedies) shall
be subject to the Master Arbitration Agreement,


 


65

















 


dated as of
February 7, 1990, by and among Delta, Trans World Airlines, Inc., Trans World
PARS, Inc., Trans World Computer Services, Inc., NWA Inc., Northwest Airlines,
Inc., Northwest PARS, Inc., Northwest Computer Services, Inc., Delta Ventures
I, Inc., Delta Ventures II, Inc., Delta Ventures III, Inc., PARS Marketing
Partnership, PARS Service Partnership, NEWCRS Limited, Inc. and WORLDSPAN,
L.P., and whenever reference is made herein that any dispute or other matter
shall be determined by arbitration, such arbitration shall be conducted
pursuant to such Master Arbitration Agreement.


 


F.             In
this Lease the neuter gender includes the feminine and masculine and the
singular number includes the plural wherever the context so requires.


 


G.            This
Lease may be executed in any number of counterparts, each of which is an
original, but all of which shall constitute one instrument.


 


H.            Either
party hereto shall, at any time and from time to time, upon not less than
twenty (20) days prior notice from the other party, execute, acknowledge and
deliver to the other party a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified and stating the
modifications), and the dates to which the rent and other charges have been
paid in advance, and stating whether or not to the best knowledge of the signer
of such statement the other party is in default in keeping, observing or
performing any term, covenant, agreement, provision, condition or limitation
contained in this Lease and, if there be a default, specifying each such
default.


 


66

















 


I.              Delta
represents and warrants that it has full right and authority to enter into this
Lease and that Tenant, while paying the Rental and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold, and enjoy the Premises for the full term of this Lease and any renewal
thereof without molestation or hindrance from Delta or anyone claiming by,
through or under Delta, subject to the terms and provisions of this Lease.


 


J.             Upon
the request of either party, Delta and Tenant shall execute and deliver to the
other a memorandum or short form of this Lease, in recordable form, within
thirty (30) days of such request, which memorandum or short form of this Lease
will be recorded, at the expense of the requesting party, to give notice to third
parties of the existence of this Lease. The requesting party shall be entitled
to record this Lease if the memorandum or short form of this Lease is not
timely delivered and properly executed for recording. Upon expiration or
earlier termination of the term of this Lease, Tenant shall execute such
instrument in recordable form as may be reasonably requested by Delta, to clear
such memorandum or short form of lease from the public records and from Delta’s
title to the Data Center. If Tenant fails to do so within thirty (30) days
after having been provided with an appropriate instrument for such purpose,
then Delta, as Tenant’s agent and attorney-in-fact (hereby appointed solely for
such limited purpose), may execute such instrument and cause same to be delivered
and recorded on Tenant’s behalf. If this Lease, or a memorandum or short form
thereof, has not previously been recorded, Delta shall record this Lease, or a
memorandum or short form thereof, prior to entering into any mortgage of the
Data Center.


 


67

















 


K.            At
the time of execution and delivery of this Lease, Attachment 1 will not be
affixed. Delta and Tenant recognize that the law is unclear as to the
consequences of a failure to affix Attachment 1 at said time. Nevertheless,
this Lease contains numerous covenants and agreements of Tenant and Delta which
pertain to their respective rights, obligations, claims and liabilities prior
to the affixation of Attachment 1 to this Lease. It is the intention of Delta
and Tenant that prior to the affixation of Attachment 1 to this Lease, this
Lease operate as a contract between Tenant and Delta as to such covenants and
agreements, and that, without otherwise affecting the nature of such covenants
and agreements between Tenant and Delta, such covenants and agreements be
independently enforceable at law and in equity, as if, prior to the affixation
of Attachment 1 to this Lease, such covenants and agreements operated as
independent covenants and agreements between Tenant and Delta.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Lease to be executed by their duly authorized officers, the day and year
first above written.


 


	
   

  	
   

  	
  DELTA AIR LINES, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Julius P. Gwin

  	
   

  
	
   

  	
   

  	
   

  	
  Title:   
  Vice President-Comptroller

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  ATTEST:

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Susan L. Smith

  	
   

  	
  By:

  	
  /s/
  Mary E. Raine

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Title
  Assistant Secretary &

  Senior Attorney

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances W. Hall

  	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  	
   

  
						



 


SIGNATURE CONTINUED
ON NEXT PAGE


 


68

















 


	
   

  	
   

  	
  WORLDSPAN, L.P.

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  By:

  	
  Trans World
  Pars, Inc.,

  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Abby Brown

  	
   

  	
  By:

  	
  /s/
  Mark S. Mulvany

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances Foley

  	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Notary Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  By:

  	
  Northwest Pars,
  Inc.,

  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Abby Brown

  	
   

  	
  By:

  	
  /s/
  Raymond G. Foss

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances Foley

  	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Notary Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  By:

  	
  Delta Ventures
  I, Inc.,

  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Abby Brown

  	
   

  	
  By:

  	
  /s/
  Julius P. Gwin 

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances Foley

  	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Notary Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  By:

  	
  Delta Ventures
  II, Inc.,

  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Abby Brown

  	
   

  	
  By:

  	
  /s/
  Julius P. Gwin 

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances Foley

  	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Notary Public

  	
   

  	
   

  	
   

  
						



 


69

















 


	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  By:

  	
  Delta Ventures
  III, Inc.,

  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Abby Brown

  	
   

  	
  By:

  	
  /s/
  Julius P. Gwin 

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
  Assistant
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Frances Foley

  	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Notary Public

  	
   

  	
   

  	
   

  
						



 


70

















 


FIRST
AMENDMENT TO LEASE


 


THIS FIRST AMENDMENT TO LEASE (hereinafter
referred to as this “Amendment”) is made and entered into as of the 3rd day of
March, 2003, by and between DELTA AIR LINES, INC., a Delaware
corporation (“Landlord”), and WORLDSPAN, L.P., a Delaware limited
partnership (“Tenant”) (Landlord and Tenant being hereinafter collectively
referred to as the “parties”).


 


W I T N E S S E T H:


 


WHEREAS, Landlord
and  Tenant
entered into that certain Lease Agreement dated February 7, 1990 (the “Lease”),
covering premises which were constructed by Landlord and containing space for
the computer reservations systems operations of Tenant, as more particularly
described in the Lease;


 


WHEREAS, pursuant
to that certain Partnership Interest Purchase Agreement dated as of the date
hereof (the “Purchase Agreement”), by and among Landlord, Tenant, NWA, Inc., a
Delaware corporation (“Northwest”), American Airlines, Inc., a Delaware
corporation (“American”), NewCRS Limited, Inc., a Delaware corporation
(“NewCRS”) and Travel Transaction Processing Corporation, a Delaware
corporation (“Purchaser”), Landlord, Northwest, American and NewCRS have agreed
to sell their respective partnership interests in Tenant to Purchaser; and


 


WHEREAS, Landlord
and Tenant desire to modify and amend the Lease as more fully set forth below,
but Landlord and Tenant expressly desire that this Amendment not be effective
unless and until the consummation of the “Closing” (as that term is defined in
Section 1.3 of the Purchase Agreement) under the Purchase Agreement.


 


NOW, THEREFORE, FOR AND IN
CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant do hereby covenant and agree as
follows:


 


1.             Recitals.
 The recitals set forth above are
incorporated into and made a part of this Amendment.


 


2.             Definitions.
 Unless otherwise expressly provided
in this Amendment, the capitalized terms not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Purchase Agreement.


 


3.             Amendment
of Lease.  Upon the satisfaction
of the condition precedent to the effectiveness of this Amendment set forth in
Section 4 below, Landlord and Tenant do hereby modify and amend the Lease as
follows:  Paragraph A of Article 5
entitled “USE OF


 

















 


PREMISES” is hereby deleted in its entirety, and the
following new Paragraph A of Article 5 is hereby inserted in lieu thereof:


 


“A.          The Premises shall be
used solely as a Computer Data Operations Center and to carry on any other
lawful activities related thereto, provided that any use of the Premises other
than as a Computer Data Operations Center shall not interfere with or disrupt
the use by Delta or any tenant of Delta (other than Tenant) of the building
(other than the Premises) as a Computer Data Operations Center and shall be
subject to Delta’s approval, which approval shall not be unreasonably withheld
or delayed.”


 


4.             Condition
Precedent to Effectiveness of Amendment.  Landlord and Tenant expressly agree that
this Amendment shall not become effective unless and until the consummation of
the Closing under the Purchase Agreement; provided, that Landlord and
Tenant further agree that should the Closing not occur under the Purchase
Agreement, then this Amendment shall become null and void ab initio
and shall never become effective between the parties.


 


5.             Ratification.  Except as herein above set forth, the Lease
shall remain unmodified and in full force and effect, and Landlord and Tenant
do hereby ratify and confirm the Lease, as modified and amended herein upon the
satisfaction of the condition precedent to the effectiveness of this Amendment
set forth in Section 4 hereof.


 


6.             Counterparts.  This Amendment may be executed in
several counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.  This Amendment may be executed and delivered by facsimile
transmission, the parties intending that faxed signatures constitute original
signatures and that a faxed copy or counterpart of this Amendment containing
signatures (original or faxed) of a party shall be binding upon that party.


 


The Remainder of this Page is
Intentionally Left Blank


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Amendment under seal as of the date first
above written.


 


	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
  DELTA AIR LINES, INC. a Delaware

  corporation

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ M. Michele Burns

  	
   

  
	
  Notary Public

  	
   

  	
  Name:  M. Michele Burns

  
	
   

  	
   

  	
  Title:: Executive Vice
  President and Chief

  Financial Officer

  
	
  My Commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [NOTARIAL
  SEAL]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and
  delivered in the presence of:

  	
   

  	
  TENANT:

  
	
  /s/
  Ann. S. Strond

  	
   

  	
  WORLDSPAN, L.P., a Delaware limited

  partnership

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Bonnie S. Davidson

  	
   

  	
  By:

  	
  /s/ Paul J. Blackney

  	
   

  
	
  Notary Public

  	
   

  	
  Name:  Paul J. Blackney

  
	
   

  	
   

  	
  Title: President and
  Chief Executive Officer

  
	
  My Commission expires:
  March 11, 2006

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [NOTARIAL
  SEAL]

  	
   

  	
   

  
						



 


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