Exhibit
10.21


 


Execution
Copy


 


ADVISORY AGREEMENT


 


This Advisory Agreement
(this “Agreement”) is made and entered into as of June 30, 2003 by
and between Worldspan, L.P., a Delaware limited partnership (“Worldspan”
and together with all of the direct and indirect subsidiaries of Worldspan, the
“Worldspan Group”), and Travel Transaction Processing Corporation, a
Delaware corporation (“Advisor”).


 


WHEREAS, pursuant to the
Partnership Interest Purchase Agreement (the “Purchase Agreement”) dated
as of March 3, 2003 by and among Delta Air Lines, Inc., NWA, Inc.,
American Airlines, Inc., NewCRS Limited, Inc. (collectively, the “Sellers”),
Worldspan and Advisor, as amended, Advisor, or its assignees, will purchase at
the Closing (as defined in the Purchase Agreement) all of the partnership
interests of Worldspan from the Sellers on the terms and subject to the
conditions set forth in the Purchase Agreement;


 


WHEREAS, Worldspan, on
behalf of the Worldspan Group, desires to retain Advisor and Advisor desires to
perform for Worldspan and/or the Worldspan Group certain services;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
intending to be legally bound hereby, and for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, effective as of the Closing (the “Effective Time”) and without
any further action required by any party hereto, hereby agree as follows:


 


1.                                       Term.  This Agreement shall be in effect for an
initial term of ten (10) years commencing at the Effective Time (the “Term”);
provided, however, that Worldspan may terminate its obligation to
pay Advisory Fees (as such term is defined in Section 3(a)), and
correspondingly, Advisor’s obligations under Section 2, at any time prior
to the expiration of the Term by providing Advisor not less than ten (10) days
prior written notice (an “Early Termination”)  In the event of an Early Termination, Worldspan shall pay to
Advisor an amount equal to the “Termination Fee.”  As used herein, the “Termination Fee”
means the net present value of all Advisory Fees that would have been payable
from Worldspan to Advisor from the effective date of the Early Termination
through the end of the Term assuming that an Early Termination had not
occurred.  Any calculation of net
present value done in connection with the payment of the Termination Fee shall
be calculated by the board of directors of Worldspan in good faith.


 


2.                                       Services.  Advisor shall perform or cause to be
performed such services for Worldspan and/or members of the Worldspan Group as
directed by Worldspan’s board of directors, which may include, without
limitation, the following:


 


(a)                                  identification,
support and analysis of acquisitions and dispositions by members of the Worldspan
Group;


 

















 


(b)                                 support
and analysis of financing alternatives, including, without limitation, in
connection with acquisitions, capital expenditures and refinancing of existing
indebtedness;


 


(c)                                  finance
functions, including assistance in the preparation of financial projections,
and monitoring of compliance with financing agreements;


 


(d)                                 human
resource functions, including searching and hiring of executives; and


 


(e)                                  other
services for the Worldspan Group upon which Worldspan’s board of directors and
Advisor agree.


 


Notwithstanding any
provision in this Agreement to the contrary, each of the parties hereto
acknowledges and agrees that there are no minimum levels of services required
to be provided to the Worldspan Group pursuant to this Agreement.


 


3.                                       Advisory
Fees.


 


(a)                                  Subject
to the terms and conditions herein, payment for services rendered by Advisor
and/or its affiliates pursuant to this Agreement will equal $1,500,000 per
annum.  All fees described in this
Section 3(a) shall be payable to Advisor or its designee by Worldspan on a
quarterly basis in advance commencing with the first full fiscal quarter after
the Effective Time (all such fees, the “Advisory Fees”).


 


(b)                                 TTPC
hereby agrees to pay to Advisor or its designee on the Closing Date (as defined
in the Purchase Agreement) upon the consummation of the transactions
contemplated by the Purchase Agreement a fee for services rendered in
connection with the structuring of and assistance with the transactions
contemplated by the Purchase Agreement and certain other management services in
an amount equal to $14,583,333, plus reasonable out-of-pocket expenses.  Such fees shall be payable to Advisor or its
designees by wire transfer to an account designated in writing by Advisor.  In addition, during the Term, Worldspan
shall pay to Advisor or its designees a transaction fee in connection with the
consummation of each acquisition, divestiture or financing (including any
refinancing) by Worldspan or any member of the Worldspan Group in an amount to
be mutually agreed upon by the parties hereto (all such fees, the “Transaction
Fees” and together with the Advisory Fees, the “Fees”), plus
reasonable out-of-pocket expenses; provided, however, that no
such Transaction Fees shall be payable in connection with transactions that are
acquisitions, divestitures or financings (including any refinancings) between
or among members of the Worldspan Group.


 


(c)                                  Worldspan
hereby agrees to pay the reasonable out-of-pocket expenses of Advisor and its
affiliates incurred in connection with the performance of the services
contemplated by this Agreement, including,
without limitation, all expenses incurred in connection with the negotiation,
preparation, authorization, execution and delivery of the Purchase


 


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Agreement,
the consummation of the transactions contemplated thereby and the debt and
equity financing transactions related thereto.


 


(d)                                 Subject
to the limitations described in Section 3(e) below, the decision whether
to collect any Fees contemplated by this Agreement in a given period shall be
in Advisor’s sole discretion.  Advisor’s
decision not to collect or to defer any Fees in any given period shall not be
construed to be a waiver of Advisor’s right to collect deferred Fees in any
future period.


 


(e)                                  Notwithstanding
any other provision of this Section 3, Worldspan shall not be required to
pay any of the Fees contemplated by Section 3(a), if and to the extent
such payment is expressly prohibited by the provisions of (i) the Indenture
dated as of the date hereof by and among WS Merger LLC, a Delaware limited
liability company and wholly owned subsidiary of Advisor (“WS Merger”),
WS Financing Corp., a Delaware corporation and wholly owned subsidiary of WS
Merger (“WS Financing”), the domestic subsidiaries of Worldspan and The
Bank of New York, as Trustee or (ii) the Credit Agreement dated as of the date
hereof by and among Advisor, WS Holdings LLC, a Delaware limited liability
company and wholly owned subsidiary of Advisor, Worldspan, the Lenders named
therein, Lehman Brothers Inc., as Arranger, Lehman Commercial Paper Inc., as
Administrative Agent, Deutsche Bank Securities Inc., as Syndication Agent and
as Arranger, JPMorgan Chase Bank, as Documentation Agent, and Citicorp North
America, Inc., as Documentation Agent, as the same may be amended, modified or
supplemented, from time to time (the “Credit Agreement”), or any other
credit, financing or other agreements or instruments binding upon Worldspan or
its properties; provided, however, that if, as a result of the
operation of any such prohibitions, payments otherwise owed hereunder are not
made, such payments shall not be cancelled but rather shall accrue, and shall
be payable by Worldspan promptly when, and to the extent that, Worldspan is no
longer prohibited from making such payments, together with accrued interest
calculated at the rate of ten percent (10%) per annum, compounded
semi-annually, from the date such payment was due through the date of payment.


 


(f)                                    No
amendment to this Agreement which results or could reasonably be expected to
result in the incurrence of any additional liabilities by Worldspan hereunder
shall be effective without the affirmative consent of (i) the independent
members of the board of directors of Worldspan and (ii) Ontario Teachers’
Pension Plan Board (“OTPP”) for so long as OTPP and its Permitted
Transferees (as such term is defined in the Stockholders Agreement dated the
date hereof by and among Advisor and the stockholders of Advisor named therein)
own 5% or more of the outstanding shares of Common Stock of Advisor.  Section 3(e) will not prohibit nor
restrict, in any manner, Worldspan’s obligation to provide indemnification
pursuant to Section 6.


 


4.                                       Personnel.  Advisor shall provide and devote to the
performance of this Agreement such partners, employees and agents of Advisor as
Advisor shall deem appropriate to the furnishing of the services required.


 


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5.                                       Liability.  Neither Advisor nor any other Indemnitee (as
defined in Section 6 below) shall be liable to Worldspan or any of its
subsidiaries or affiliates for any loss, liability, damage or expense arising
out of or in connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from gross negligence, willful misconduct or bad faith on the part of
an Indemnitee acting within the scope of such person’s employment or authority.  Advisor makes no representations or
warranties, express or implied, in respect of the services to be provided by
Advisor or any of the other Indemnitees. 
Except as Advisor may otherwise agree in writing after the date hereof:  (i) Advisor shall have the right to,
and shall have no duty (contractual or otherwise) not to, directly or
indirectly:  (A) engage in the same
or similar business activities or lines of business as Worldspan or any member
of the Worldspan Group, including those competing with Worldspan or member of
the Worldspan Group and (B) do business with any client or customer of
Worldspan or any member of the Worldspan Group; (ii) neither Advisor nor
any officer, director, employee, partner, affiliate or associated entity
thereof shall be liable to Worldspan or any of its subsidiaries or affiliates
for breach of any duty (contractual or otherwise) by reason of any such
activities of or of such person’s participation therein; and (iii) in the
event that Advisor acquires knowledge of a potential transaction or matter that
may be a corporate opportunity for Worldspan or member of the Worldspan Group,
on the one hand, and Advisor, on the other hand, or any other person, Advisor
shall have no duty (contractual or otherwise) to communicate or present such
corporate opportunity to Worldspan or member of the Worldspan Group and,
notwithstanding any provision of this Agreement to the contrary, shall not be
liable to the Worldspan Group or any of their affiliates for breach of any duty
(contractual or otherwise) by reasons of the fact that Advisor directly or
indirectly pursues or acquires such opportunity for itself, directs such
opportunity to another person, or does not present such opportunity to the
Worldspan Group.  In no event will any
of the parties hereto be liable to any other party hereto for any indirect,
special, incidental or consequential damages, including lost profits or
savings, whether or not such damages are foreseeable, or in respect of any
liabilities relating to any third party claims (whether based in contract, tort
or otherwise) other than the Claims (as defined in Section 6 below)
relating to the service to be provided by Advisor hereunder.


 


6.                                       Indemnity.  Each of Worldspan and the members of the
Worldspan Group shall defend, indemnify and hold harmless each of Advisor, its
affiliates, members, partners, employees and agents (collectively, the “Indemnitees”)
from and against any and all loss, liability, damage or expenses arising from
any claim by any person with respect to, or in any way related to, the
performance of services contemplated by this Agreement (including attorneys’
fees) (collectively, “Claims”) resulting from any act or omission of any
of the Indemnitees, other than for Claims which shall be proven to be the
direct result of gross negligence, bad faith or willful misconduct by an
Indemnitee.  Each of Worldspan and the
members of the Worldspan Group shall defend at its own cost and expense any and
all suits or actions (just or unjust) which may be brought against Worldspan,
any member of the Worldspan Group or any of the Indemnitees or in which any of
the Indemnitees may be impleaded with others upon any Claims, or upon any
matter, directly or indirectly, related to or arising out of this Agreement or
the performance hereof by any of the Indemnitees, except that if such damage
shall be proven to be


 


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the direct result of gross negligence, bad faith or willful misconduct
by an Indemnitee, then Advisor shall reimburse Worldspan and the members of the
Worldspan Group for the costs of defense and other costs incurred by Worldspan
and the members of the Worldspan Group to the extent due to such gross
negligence, bad faith or willful misconduct.


 


7.                                       Notices.  All notices hereunder shall be in writing
and shall be delivered personally or mailed by United States mail, postage
prepaid, addressed to the parties as follows:


 


To Worldspan or
the Worldspan Group:


 


Worldspan, L.P.

300 Galleria Parkway, N.W.

Atlanta, GA 30339

Attention:  General Counsel

Facsimile:  770.563.7878


 


To Advisor:


 


Travel Transaction
Processing Corporation

c/o Worldspan, L.P.

300 Galleria Parkway, N.W.

Atlanta, GA 30339

Attention:  General Counsel

Facsimile:  770.563.7878


 


with copies to:


 


Citigroup Venture
Capital Equity Partners, L.P.

399 Park Avenue, 14th Floor

New York, NY 10043

Attention:  Joseph M. Silvestri

Facsimile:  212.888.2940


 


Ontario Teachers’ Pension
Plan Board

5650 Yonge Street

Toronto, Ontario M2M 4H5

Attention:  Shael J. Dolman

Facsimile:  416.730.5082


 


Debevoise & Plimpton

919 Third Avenue

New York, New York 10022

Attention:  Margaret A. Davenport

Facsimile:  212.909.6836


 


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Dechert LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103-2791

Attention:  Geraldine A. Sinatra

Facsimile:  215.994.2222


 


8.                                       Assignment.  Neither Worldspan nor any member of the
Worldspan Group may assign any obligations hereunder to any other party without
the prior written consent of Advisor (which consent shall not be unreasonably
withheld), and Advisor may not assign any Advisor obligations hereunder to any
other party without the prior written consent of Worldspan (which consent shall
not be unreasonably withheld).


 


9.                                       Successors.  This Agreement and all the obligations and
benefits hereunder shall inure to the successors and assigns of the parties.


 


10.                                 Counterparts.  This Agreement may be executed and delivered
by each party hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.


 


11.                                 Entire
Agreement; Modification; Governing Law. 
The terms and conditions hereof constitute the entire agreement between
the parties hereto with respect to the subject matter of this Agreement and
supersede all previous communications, representations or warranties of any
kind whatsoever, whether oral or written, except as expressly set forth
herein.  No modifications of this
Agreement nor waiver of the terms or conditions thereof shall be binding upon
either party unless approved in writing by an authorized representative of such
party.  All issues concerning this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the law of any jurisdiction
other than the State of New York.


 


12.                                 Effective
Time.  This Agreement shall be
effective as of the Effective Time without further action required on the part
of any party hereto.  If the Closing
does not occur and the Purchase Agreement is terminated, this Agreement shall
have no force or effect and shall be deemed void ab initio.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties have executed this
Advisory Agreement as of the date first written above.


 


 


	
   

  	
  WORLDSPAN, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dale Messick

  
	
   

  	
   

  	
  Name:

  	
  Dale Messick

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President
  and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRAVEL TRANSACTION
  PROCESSING

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rakesh Gangwal

  
	
   

  	
   

  	
  Name:

  	
  Rakesh Gangwal

  
	
   

  	
   

  	
  Title:

  	
  President and Chief
  Executive Officer