**Exhibit 10.77**

 

First Amendment

to

Northwest Founder Airline Services Agreement

 

This FirstAmendment to the Northwest Founder Airline Services Agreement (this“Amendment”), dated as of May 10, 2004, by and between Worldspan, L.P.(“Worldspan”) and Northwest Airlines, Inc. (“Northwest”) amends the NorthwestFounder Airline Services Agreement (the “Agreement”), dated as of June 30,2003, by and between Worldspan and Northwest. Capitalized terms used but not defined herein shall have the meaningsascribed to them in the Agreement.

 

WHEREAS, theAgreement provides that Worldspan will provide certain credits to Northwest tobe applied against service fee payments due from Northwest to Worldspan underthe Agreement;

 

WHEREAS,Worldspan and Northwest desire to amend the Agreement to provide that, uponconsummation of an Initial Public Offering (as defined herein) on or prior toSeptember 30, 2004, the obligations of Worldspan to provide such credits toNorthwest shall terminate in exchange for a one-time payment from Worldspan toNorthwest, subject to the terms and conditions of this Amendment;

 

NOW,THEREFORE, in consideration of the agreements, terms and conditions set forthherein and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, and intending to be legallybound, the parties hereto agree as follows:

 

1.             Section 4.8 is hereby added to the Agreement to read asfollows:

 

“4.8         Termination of FASA Credits upon anIPO.  From and after theconsummation of an Initial Public Offering and Northwest’s receipt of the FASACredit Termination Payment (as defined below), Section 4.4 hereof and thedefined terms utilized therein if such defined terms are not utilized elsewherein the Agreement shall have no further force and effect and the followingprovisions of this Section 4.8 shall apply:

 

(a)           Immediately after consummation of anInitial Public Offering, Worldspan shall pay to Northwest by wire transfer ofimmediately available funds an amount equal to the FASA Credit TerminationPayment.

 

As usedherein, the “FASA Credit Termination Payment” means:

 

(i) $78,121,056, in the event of an Initial Public Offering in May,2004,

(ii) $77,415,726, in the event of an Initial Public Offering in June,2004,

(iii) $76,704,224, in the event of an Initial Public Offering in July,2004,

(iv) $75,986,498, in the event of an Initial Public Offering in August,2004, or

(v) $75,262,491, in the event of an Initial Public Offering inSeptember, 2004,

 

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in each caseof clauses (i), (ii), (iii),  (iv) or(v), as reduced by:

 

(A) the amountof any Northwest FASA Credits applicable under Schedule 4.4(a) hereto to anycalendar month following the Initial Public Offering and which have beenincluded in invoices by Worldspan under Article 4 of the Agreement relating toperiods prior to the Initial Public Offering,

 

(B) the amountof any Recoupment Amounts which have not, prior to the Initial Public Offering, been reflected in a Current Invoice,

 

(C) if the FASA Credit TerminationPayment is made to Northwest on or prior to September 30, 2004,theamount of any Northwest FASA Claim Amounts which have not, prior to the InitialPublic Offering , been reflected in a Current Invoice and have been depositedby Worldspan into the escrow agreement specified in Section 4.4(b)(3) of theAgreement as it was in effect prior to the contingent modificationscontemplated by this Section 4.8, and

 

(D) theRequired Escrow Amount (as defined in Section 4.8(c)).

 

(b)           Upon receipt of the FASA CreditTermination Payment, Northwest shall no longer earn and shall no longer beentitled to any Northwest FASA Credits earned under the Agreement and Worldspanshall have no further rights or obligations under Section 4.4 of the Agreement,including with respect to any Northwest FASA Credits, FASA Credit ExcessAmounts, FASA Cash Payments or the Northwest Continuing Payment.

 

(c)           If the FASA Credit Termination Payment is made to Northwest on or priorto September 30, 2004, a portion of the FASA CreditTermination Payment equal to the Required Escrow Amount (as defined below) willbe deposited by Worldspan into the escrow account (the “Escrow Account”)established pursuant to the Worldspan/Northwest Escrow Agreement (as definedbelow) and such amount will be subject to the terms and conditions of theWorldspan/Northwest Escrow Agreement. As used herein, the “Required Escrow Amount” means the amount of$20,400,000 less any amounts recouped by Worldspan as a Northwest IndemnityClaim Amount under Section 4.4(b)(2) of the Agreement and deposited byWorldspan into the escrow account established pursuant to theWorldspan/Northwest Indemnity Claim Escrow Agreement (the “Worldspan/NorthwestIndemnity Claim Escrow Account”) prior to the Initial Public Offering.  As used herein, the “Worldspan/NorthwestEscrow Agreement” means the Worldspan/Northwest Escrow Agreement substantiallyin the form contained in Schedule 4.8 hereto. If the FASA CreditTermination Payment is made to Northwest on or prior to September 30, 2004, Worldspan,Worldspan Technologies Inc. (“WTI”) and Northwest agree to execute theWorldspan/Northwest Escrow Agreement prior to such payment.

 

(d)           Upon the occurrence of a NorthwestGeneral Termination, Northwest Bankruptcy FASA Rejection, or termination ofthis Agreement without cause by Northwest in breach of Section 7.1(b) hereof,each prior to June 30, 2012, Northwest shall pay to Worldspan

 

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on a monthlybasis commencing at the effective time of such termination until and includingJune, 2012, an amount in cash equal to the amount listed in Column B as theapplicable Northwest FASA Credit for such month on Schedule 4.4(a) hereof.  Any payments due from Northwest pursuant tothis Section 4.8(d) shall be made by wire transfer of immediately availablefunds from Northwest to Worldspan on the first business day of each calendarmonth following the month in which such termination occurs; provided, however,for the calendar month in which such termination occurs, Northwest shall pay toWorldspan a prorated amount of the Northwest FASA Credit specified for suchmonth in Column B on Schedule 4.4(a) hereto equal to the amount listed on suchschedule for such month multiplied by a fraction, the numerator of which is thenumber of days remaining in such month following the date of termination andthe denominator of which is the total number of days in such month.

 

(e)           As used herein, the “Initial PublicOffering” means the initial underwritten sale of common equity interests ofWTI, or any affiliate of WTI other than Worldspan (each, and WTI, a “WTIEntity”) to the public pursuant to an effective registration statement underthe Securities Act of 1933, as amended, with gross proceeds to any one or moreWTI Entity of $200,000,000 or more, if immediately thereafter any WTI Entityhas publicly held common equity interests listed on a national securitiesexchange or NASD automated quotation system.”

 

2.                                       Section7.1 of the Agreement is hereby amended and restated in its entirety to read asfollows:

 

“Section7.1  Termination Without Cause.

 

(a)           In the event that anInitial Public Offering is not consummated on or before September 30, 2004,Northwest may terminate this Agreement without cause by giving Worldspan atleast one (1) year’s, but not more than two (2) years’, prior written notice ofsuch termination and the date upon which the termination will be effective,which termination effective date may be no earlier than twenty-seven (27)months after the Effective Date; provided, however, that, if the terminationresults in Northwest having a funding obligation pursuant to Section 1.2(a) ofthe Worldspan/Northwest Indemnity Claim Escrow Agreement, then the terminationshall not be effective unless and until Northwest has performed that fundingobligation in full.  This terminationnotice may be given at any time prior to twenty-seven (27) months after theEffective Date so long as the notice is given within the time period specifiedabove and the termination is not effective prior to twenty-seven (27) monthsafter the Effective Date.

 

(b)           In the event that anInitial Public Offering is consummated on or before September 30, 2004;Northwest may terminate this Agreement without cause by giving Worldspan atleast one (1) year’s, but not more than two (2) years’, prior written notice ofsuch termination and the date upon which the termination will be effective.”

 

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3.                                       Thedefinition of “TTPC” in Schedule 1.3 of the Agreement is hereby amended and restatedin its entirety to read as follows:

 

“‘TTPC’ meansTravel Transaction Processing Corporation, a Delaware corporation, whichchanged its name to Worldspan Technologies Inc. in March, 2004.”

 

4.                                       (a)           Worldspan and WTI each herebycovenants and agrees to comply with Section 9.15  of any Founder Airline Services Agreement between Worldspan andany other Founder Airline and Section 17 of any Worldspan/Delta Indemnity ClaimEscrow Agreement, or similar or substitute agreement (the “Non-DiscriminationProvisions”) between Worldspan and/or WTI and any other Founder Airline as theNon-Discrimination Provisions may relate to the transactions contemplated bythis Amendment and shall, jointly and severally, indemnify, defend and holdharmless Northwest, its officers, directors and Affiliates (each, a “NorthwestIndemnitee”), from, and reimburse any Northwest Indemnitee for any Loss arisingout of, resulting from or in connection with any claim, action or suit (each, a“Claim”) brought by any third party against any Northwest Indemnitee withrespect to the transactions contemplated by this Amendment to the extentresulting from acts or omissions by Worldspan or WTI (including the executionof this Amendment); provided that the indemnification provided under this Section4 shall not apply to any Claims or Loss to the extent arising out of, resultingfrom or in connection with any acts or omissions of any Northwest Indemnitee(including with respect to any breach or default by any Northwest Indemnitee ofany contract, agreement or instrument applicable to such Northwest Indemnitee);provided further that the foregoing proviso does not apply to the mere factthat Northwest has entered into this Amendment if the Claim is brought by anyother Founder Airline or its Affiliate.

 

(b)           As promptly as practicable, and inany event within 30 days, after any Northwest Indemnitee shall receive anynotice of, or otherwise become aware of, the commencement of any Claim or theassertion of any Claim, for which indemnification is provided for under thisSection 4 (an “Indemnification Event”), such Northwest Indemnitee shall givewritten notice (an “Indemnification Claim”) to the party from which suchindemnification is (or, under such assumption, could be) sought (an“Indemnifying Party”) describing in reasonable detail the Indemnification Eventand the basis on which indemnification is (or, under such assumption, could be)sought; but the failure of the Northwest Indemnitee to give the IndemnificationClaim within such time period shall not relieve the Indemnifying Party of anyliability hereunder in respect of such Indemnification Event (or the facts orcircumstances giving rise thereto) except to the extent that such IndemnifyingParty is materially prejudiced or harmed as a consequence of such failure.  The Indemnifying Party shall (whether or notthe Northwest Indemnitee is entitled to claim indemnification under thisSection 4) be entitled to, and the Northwest Indemnitee shall provide theIndemnifying Party with the right to, participate in, and assume sole controlover, the defense and settlement of such Claim (with counsel reasonablysatisfactory to the Northwest Indemnitee); provided, however,

 

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that (i) theIndemnifying Party or Indemnifying Parties shall (x) provide written notice tothe Northwest Indemnitee of its or their election to assume control of thedefense of such Claim and (y) have expressly agreed in writing that, as betweenthe Indemnifying Party and the Northwest Indemnitee, the Indemnifying Partyshall be solely obligated to satisfy and discharge such Claim, (ii) theNorthwest Indemnitee shall be entitled to participate in the defense of suchClaim and to employ counsel at its own expense to assist in the handling of suchClaim, provided that if there is an actual conflict of interest between theIndemnifying Party and the Northwest Indemnitee, which in the reasonableopinion of counsel to the Northwest Indemnitee would prevent one counsel fromrepresenting both the Indemnifying Party and the Northwest Indemnitee in anymatter, the Indemnifying Party shall be responsible for all such reasonablecounsel expenses of the Northwest Indemnitee, and (iii) the IndemnifyingParty shall obtain the prior written approval of the Northwest Indemnitee,which approval shall not be unreasonably withheld or delayed, before enteringinto any settlement of such Claim or ceasing to defend against such Claim if(x) as a result of such settlement or ceasing to defend, injunctive orother equitable relief would be imposed against the Northwest Indemnitee or(y) in the case of a settlement, the Northwest Indemnitee would notthereby receive from the claimant an unconditional release from all furtherliability in respect of such Claim. After written notice by the Indemnifying Party or Indemnifying Partiesto the Northwest Indemnitee of its or their election to assume control of thedefense of any such Claim, subject to the provisions of the followingexceptions, the Indemnifying Party or Indemnifying Parties shall not be liablehereunder to indemnify any Person for any Legal Expenses (as defined below)subsequently incurred in connection therewith. If the Indemnifying Party or Indemnifying Parties do not assume solecontrol over the defense or settlement of such Claim as provided in thisSection 4 within a reasonable period of time, or, after assuming such control,fails to diligently defend against such Claim in good-faith  (it being agreed that settlement of suchClaim does not constitute such a failure to defend) the Northwest Indemniteeshall have the right (as to itself) to defend and, upon obtaining the writtenconsent of the Indemnifying Party if such Indemnifying Party is liable for theLosses with respect to such Claim, settle the claim in such manner as it maydeem appropriate, and the Indemnifying Party shall promptly reimburse theNorthwest Indemnitee therefor in accordance with this Section 4.  Notwithstanding the foregoing provisions ofthis Section 4, the Northwest Indemnitee shall have the right at all times totake over and assume the control (as to itself) of the defense or settlement ofany Claim; provided, however, that in such event and if the NorthwestIndemnitee has not taken over control of such Claim under the previous sentencethe Indemnifying Party or Indemnifying Parties shall cease to have anyobligation under this Section 4 in respect of such Claim.  The Indemnifying Party shall not be liableunder this Section 4 for any settlement or compromise effected without itsconsent.

 

(c)           The NorthwestIndemnitee and the Indemnifying Party shall each cooperate fully (and shalleach cause its Affiliates to cooperate fully) with the other in the defense ofany Claim pursuant to Section 4. Without limiting the generality of the foregoing, each such Person shallfurnish the other such Person (at the expense of the Indemnifying Party) with

 

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such documentary or other evidence as is then in its or any of itsAffiliates’ possession as may reasonably be requested by the other Person forthe purpose of defending against any such Claim.

 

(d)           As used herein,“Legal Expenses” means fees, costs and expenses of any kind incurred by anyNorthwest Indemnitee and its counsel in investigating, preparing for, defendingagainst or providing evidence, producing documents or taking other action withrespect to any threatened or asserted claim.

 

5.                                       Anew Schedule 4.8 is hereby added to the Agreement in the form of Annex Ato this Amendment.

 

6.                                       Exceptas expressly provided in this Amendment, all of the terms and conditions of theAgreement remain in full force and effect and are fully binding upon andenforceable against the parties hereto.

 

7.                                       ThisAmendment may not be amended or modified except by a written agreement signedby Worldspan and Northwest.

 

8.                                       ThisAmendment shall be governed by, and shall be enforced and construed inaccordance with, the laws of the State of New York (other than its rulesregarding conflicts of laws).

 

9.                                       ThisAmendment may be executed in several counterparts, and all counterparts soexecuted shall constitute one agreement, binding on the parties hereto,notwithstanding that such parties are not signatories to the same counterpart.

 

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IN WITNESSWHEREOF, the parties hereto have caused this Amendment to be duly executed asof the day and year first written above.

 
|   | WORLDSPAN,  L.P.                                             |                                                |
|--------|--------------------------------------------------------------|-----------------------------------------------------|
|   |                                                         |                                                |   |
|   |                                                         |                                                |   |
|   | /s/ Michael  S. Wood                                         |                                                |
|   | By:                                                          | Michael S.  Wood                                    |   |
|   | Title:                                                       | Senior Vice  President and  Chief Financial Officer |
|   |                                                         |                                                |   |
|   |                                                         |                                                |   |
|   | NORTHWEST  AIRLINES, INC.                                    |
|   |                                                         |                                                |   |
|   |                                                         |                                                |   |
|   | /s/ A. M.  Lenza                                             |                                                |
|   | By:                                                          | A. M. Lenza                                         |   |
|   | Title:                                                       | V.P.,  Distribution and E-Commerce                  |
|   |                                                         |                                                |   |
|   | Solely for  purposes of Sections 1 and  4 of this Amendment: |
|   |                                                         |                                                |   |
|   | WORLDSPAN                                                    |                                                |
|   | TECHNOLOGIES  INC.                                           |                                                |
|   |                                                         |                                                |   |
|   |                                                         |                                                |   |
|   | /s/ Michael  S. Wood                                         |                                                |
|   | By:                                                          | Michael S.  Wood                                    |   |
|   | Title:                                                       | Senior Vice  President and  Chief Financial Officer |
|        |                                                              |                                                     |  |  |  |

 

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