**Exhibit10.76**

 

Execution Copy

 

First Amendment

to

Delta FounderAirline Services Agreement

 

This First Amendment tothe Delta Founder Airline Services Agreement (this “Amendment”), dated as ofMarch 25, 2004, by and between Worldspan, L.P. (“Worldspan”) and Delta AirLines, Inc. (“Delta”) amends the Delta Founder Airline Services Agreement (the“Agreement”), dated as of June 30, 2003, by and between Worldspan andDelta.  Capitalized terms used but notdefined herein shall have the meanings ascribed to them in the Agreement.

 

WHEREAS, the Agreementprovides that Worldspan will provide certain credits to Delta to be appliedagainst service fee payments due from Delta to Worldspan under the Agreement;

 

WHEREAS, Worldspan andDelta desire to amend the Agreement to provide that, upon consummation of anInitial Public Offering (as defined herein) on or prior to August 31,2004, the obligations of Worldspan to provide such credits to Delta shallterminate in exchange for a one-time payment from Worldspan to Delta, subjectto the terms and conditions of this Amendment;

 

NOW, THEREFORE, inconsideration of the agreements, terms and conditions set forth herein and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, and intending to be legally bound, the parties heretoagree as follows:

 

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

 

“4.8                           Terminationof FASA Credits upon an IPO.  Fromand after the consummation of an Initial Public Offering and Delta’s receipt ofthe FASA Credit Termination Payment (as defined below), Section 4.4 hereofshall have no further force and effect and the following provisions of thisSection 4.8 shall apply:

 

(a)                                  Immediatelyafter consummation of an Initial Public Offering, Worldspan shall pay to Deltaby wire transfer of immediately available funds an amount equal to the FASACredit Termination Payment.

 

As used herein, the “FASACredit Termination Payment” means:

 

(i)   $75,830,457, in the event of an InitialPublic Offering in May, 2004,

(ii)  $75,168,274, in the event of an InitialPublic Offering in June, 2004,

(iii) $74,499,745,in the event of an Initial Public Offering in July, 2004, or

(iv) $73,824,810,in the event of an Initial Public Offering in August, 2004,

 

in each case ofclauses (i), (ii), (iii) or (iv), as reduced by:

 

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(A) the amount of anyDelta FASA Credits applicable under Schedule 4.4(a) hereto to any calendarmonth following the Initial Public Offering and which have been includedin  invoices by Worldspan underArticle 4 of the Agreement relating to periods prior to the Initial PublicOffering ,

 

(B) the amount of anyRecoupment Amounts which have not, prior to the Initial Public Offering , beenreflected in a Current Invoice,

 

(C) the amount of anyDelta FASA Claim Amounts which have not, prior to the Initial Public Offering ,been reflected in a Current Invoice and have been deposited by Worldspan intothe Worldspan/Delta FASA Claim Escrow Agreement, and

 

(D) the Required EscrowAmount (as defined in Section 4.8(c)).

 

(b)                                 Uponreceipt of the FASA Credit Termination Payment, Delta shall no longer earn andshall no longer be entitled to any Delta FASA Credits earned under theAgreement and Worldspan shall have no further rights or obligations under Section 4.4of the Agreement, including with respect to any Delta FASA Credits, FASA CreditExcess Amounts, FASA Cash Payments or the Delta Continuing Payment.

 

(c)                                  Aportion of the FASA Credit Termination Payment equal to the Required EscrowAmount (as defined below) will be deposited by Worldspan into the escrowaccount (the “Escrow Account”) established pursuant to the Worldspan/DeltaEscrow Agreement (as defined below) and such amount will be subject to theterms and conditions of the Worldspan/Delta Escrow Agreement.  As used herein, the “Required Escrow Amount”means the amount of $24,000,000 less (i) any amounts recouped by Worldspan as aDelta Indemnity Claim Amount under Section 4.4(b)(2) of the Agreement anddeposited by Worldspan into the escrow account established pursuant to theWorldspan/Delta Indemnity Claim Escrow Agreement (the “Worldspan/DeltaIndemnity Claim Escrow Account”) prior to the Initial Public Offering and (ii)any amounts set off by Transaction Travel Processing Corporation (“TTPC”)against its obligations under the Subordinated Note (the “Subordinated Note”),dated June 30, 2003, from TTPC to Delta as Indemnity Claim Amounts (asdefined in the “Subordinated Note”) and deposited by TTPC into theWorldspan/Delta Indemnity Claim Escrow Account prior to the Initial PublicOffering .  As used herein, the“Worldspan/Delta Escrow Agreement” means the Worldspan/Delta Escrow Agreementsubstantially in the form contained in Schedule 4.8 hereto.  Worldspan, TTPC and Delta agree to executethe Worldspan/Delta Escrow Agreement immediately after consummation of theInitial Public Offering .

 

(d)                                 Uponthe occurrence of a Delta General Termination, Delta Bankruptcy FASA Rejection,or termination of this Agreement without cause by Delta in breach of Section 7.1(b)hereof, each prior to June 30, 2012, Delta shall pay to Worldspan on amonthly basis commencing at the effective time of such termination until andincluding June,

 

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2012, an amount in cashequal to the amount listed in Column B as the applicable Delta FASA Credit forsuch month on Schedule 4.4(a) hereof. Any payments due from Delta pursuant to this Section 4.8(d) shallbe made by wire transfer of immediately available funds from Delta to Worldspanon the first business day of each calendar month following the month in whichsuch termination occurs; provided, however, for the calendar month in whichsuch termination occurs, Delta shall pay to Worldspan a prorated amount of theDelta FASA Credit specified for such month in Column B on Schedule 4.4(a)hereto equal to the amount listed on such schedule for such monthmultiplied by a fraction, the numerator of which is the number of daysremaining in such month following the date of termination and the denominatorof which is the total number of days in such month.

 

(e)                                  Asused herein, the “Initial Public Offering” means the initial underwritten saleof common equity interests of TTPC, or any affiliate of TTPC other thanWorldspan (each, and TTPC, a “TTPC Entity”) to the public pursuant to an effectiveregistration statement under the Securities Act of 1933, as amended, with grossproceeds to any one or more TTPC Entity of $200,000,000 or more, if immediatelythereafter any TTPC Entity has publicly held common equity interests listed ona national securities exchange or NASD automated quotation system.”

 

2.                                       Section 7.1of the Agreement is hereby amended and restated in its entirety to read asfollows:

 

“Section 7.1    Termination Without Cause.

 

(a)                                  Inthe event that an Initial Public Offering is not consummated on or beforeAugust 31, 2004, Delta may terminate this Agreement without cause bygiving Worldspan at least one (1) year’s, but not more than two (2) years’,prior written notice of such termination and the date upon which the terminationwill be effective, which termination effective date may be (i) if thenotice thereof is given prior to the occurrence of a Delta Note Transfer, noearlier than twelve (12) months after the Effective Date, or (ii) if thenotice thereof is given after the occurrence of a Delta Note Transfer, noearlier than thirty (30) months after the Effective Date; provided, however,that, if the termination results in Delta having a funding obligation pursuantto Section 1.2(a) of the Worldspan/Delta Indemnity Claim Escrow Agreement,then the termination shall not be effective unless and until Delta hasperformed that funding obligation in full.

 

(b)                                 Inthe event that an Initial Public Offering is consummated on or beforeAugust 31, 2004; Delta may terminate this Agreement without cause bygiving Worldspan at least one (1) year’s, but not more than two (2) years’,prior written notice of such termination and the date upon which thetermination will be effective.”

 

3.                                       (a)                                  Worldspanand TTPC each hereby covenants and agrees to comply with Section 9.15  of any Founder Airline Services Agreementbetween Worldspan and any other

 

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Founder Airline andSection 17 of any Worldspan/Northwest Indemnity Claim Escrow Agreement, orsimilar or substitute agreement (the “Non-Discrimination Provisions”) betweenWorldspan and/or TTPC and any other Founder Airline as the Non-DiscriminationProvisions may relate to the transactions contemplated by this Amendment andshall, jointly and severally, indemnify, defend and hold harmless Delta, its officers,directors and Affiliates (each, a “Delta Indemnitee”), from, and reimburse anyDelta Indemnitee fo,r any Loss arising out of, resulting from or in connectionwith any claim, action or suit (each, a “Claim”) brought by any third partyagainst any Delta Indemnitee with respect to the transactions contemplated bythis Amendment to the extent resulting from acts or omissions by Worldspan orTTPC ; provided that the indemnification provided under this Section 3shall not apply to any Claims or Loss to the extent arising out of, resultingfrom or in connection with any acts or omissions of any Delta Indemnitee(including with respect to any breach or default by any Delta Indemnitee of anycontract, agreement or instrument applicable to such Delta Indemnitee).

 

(b)                                 Aspromptly as practicable, and in any event within 30 days, after any DeltaIndemnitee shall receive any notice of, or otherwise become aware of, thecommencement of any Claim or the assertion of any Claim, for whichindemnification is provided for under this Section 3 (an “IndemnificationEvent”), such Delta Indemnitee shall give written notice (an “IndemnificationClaim”) to the party from which such indemnification is (or, under suchassumption, could be) sought (an “Indemnifying Party”) describing in reasonabledetail the Indemnification Event and the basis on which indemnification is (or,under such assumption, could be) sought; but the failure of the DeltaIndemnitee to give the Indemnification Claim within such time period shall notrelieve the Indemnifying Party of any liability hereunder in respect of suchIndemnification Event (or the facts or circumstances giving rise thereto)except to the extent that such Indemnifying Party is materially prejudiced orharmed as a consequence of such failure. The Indemnifying Party shall (whether or not the Delta Indemnitee isentitled to claim indemnification under this Section 3) be entitled to,and the Delta Indemnitee shall provide the Indemnifying Party with the rightto, participate in, and assume sole control over, the defense and settlement ofsuch Claim (with counsel reasonably satisfactory to the Delta Indemnitee);provided, however, that (i) the Indemnifying Party or Indemnifying Partiesshall (x) provide written notice to the Delta Indemnitee of its or theirelection to assume control of the defense of such Claim and (y) have expresslyagreed in writing that, as between the Indemnifying Party and the DeltaIndemnitee, the Indemnifying Party shall be solely obligated to satisfy anddischarge such Claim, (ii) the Delta Indemnitee shall be entitled toparticipate in the defense of such Claim and to employ counsel at its ownexpense to assist in the handling of such Claim, provided that if there is anactual conflict of interest between the Indemnifying Party and the DeltaIndemnitee, which in the reasonable opinion of counsel to the Delta Indemniteewould prevent one counsel from representing both the Indemnifying Party and theDelta Indemnitee in any matter, the Indemnifying Party shall be responsible forall such reasonable counsel expenses of the Delta Indemnitee, and(iii) the Indemnifying Party

 

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shall obtain the priorwritten approval of the Delta Indemnitee, which approval shall not beunreasonably withheld or delayed, before entering into any settlement of suchClaim or ceasing to defend against such Claim if (x) as a result of suchsettlement or ceasing to defend, injunctive or other equitable relief would beimposed against the Delta Indemnitee or (y) in the case of a settlement,the Delta Indemnitee would not thereby receive from the claimant anunconditional release from all further liability in respect of such Claim.  After written notice by the IndemnifyingParty or Indemnifying Parties to the Delta Indemnitee of its or their electionto assume control of the defense of any such Claim, subject to the provisionsof the following exceptions, the Indemnifying Party or Indemnifying Partiesshall not be liable hereunder to indemnify any Person for any Legal Expenses(as defined below) subsequently incurred in connection therewith.  If the Indemnifying Party or IndemnifyingParties do not assume sole control over the defense or settlement of such Claimas provided in this Section 3 within a reasonable period of time, or,after assuming such control, fails to diligently defend against such Claim ingood-faith  (it being agreed thatsettlement of such Claim does not constitute such a failure to defend) theDelta Indemnitee shall have the right (as to itself) to defend and, uponobtaining the written consent of the Indemnifying Party if such IndemnifyingParty is liable for the Losses with respect to such Claim, settle the claim insuch manner as it may deem appropriate, and the Indemnifying Party shallpromptly reimburse the Delta Indemnitee therefor in accordance with thisSection 3.  Notwithstanding theforegoing provisions of this Section 3, the Delta Indemnitee shall havethe right at all times to take over and assume the control (as to itself) ofthe defense or settlement of any Claim; provided, however, that in such eventand if the Delta Indemnitee has not taken over control of such Claim under theprevious sentence the Indemnifying Party or Indemnifying Parties shall cease tohave any obligation under this Section 3 in respect of such Claim.  The Indemnifying Party shall not be liableunder this Section 3 for any settlement or compromise effected without itsconsent.

 

(c)                                  TheDelta Indemnitee and the Indemnifying Party shall each cooperate fully (andshall each cause its Affiliates to cooperate fully) with the other in thedefense of any Claim pursuant to Section 3.  Without limiting the generality of the foregoing, each suchPerson shall furnish the other such Person (at the expense of the IndemnifyingParty) with 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.  Upon payment of any amount pursuant to any Indemnification Claim,the Indemnifying Party shall be subrogated, to the extent of such payment, toall of the Delta Indemnitee’s rights of recovery against any third party withrespect to the matters to which such Indemnification Claim relates.

 

(d)                                 Asused herein, “Legal Expenses” means fees, costs and expenses of any kindincurred by any Delta Indemnitee and its counsel in investigating, preparingfor, defending against or providing evidence, producing documents or takingother action with respect to any threatened or asserted claim.

 

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4.                                       Anew Schedule 4.8 is hereby added to the Agreement in the form of AnnexA to this Amendment.

 

5.                                       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 and enforceableagainst the parties hereto.

 

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

 

7.                                       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).

 

8.                                       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 WITNESS WHEREOF, theparties hereto have caused this Amendment to be duly executed as of the day andyear first written above.

 
|   | WORLDSPAN, L.P.                                             |                                                                     |
|--------|-------------------------------------------------------------|--------------------------------------------------------------------------|
|   |                                                        |                                                                     |   |
|   |                                                        |                                                                     |   |
|   | /s/ Michael S. Wood                                         |                                                                     |
|   | By:                                                         | Michael S. Wood                                                          |   |
|   | Title:                                                      | Senior Vice President and  Chief Financial Officer                       |
|   |                                                        |                                                                     |   |
|   |                                                        |                                                                     |   |
|   | DELTA AIR LINES, INC.                                       |
|   |                                                        |                                                                     |   |
|   |                                                        |                                                                     |   |
|   | /s/ James M. Whitehurst                                     |                                                                     |
|   | By:                                                         | James M. Whitehurst                                                      |   |
|   | Title:                                                      | Senior Vice President — Finance,  Treasury and Business Development |
|   |                                                        |                                                                     |   |
|   | Solely for purposes of Sections 1 and 3 of this  Amendment: |
|   |                                                        |                                                                     |   |
|   | TRAVEL TRANSACTION  PROCESSING CORPORATION                  |
|   |                                                        |                                                                     |   |
|   |                                                        |                                                                     |   |
|   | /s/ Michael S. Wood                                         |                                                                     |
|   | By:                                                         | Michael S. Wood                                                          |   |
|   | Title:                                                      | Senior Vice President  and Chief Financial Officer                       |
|        |                                                             |                                                                          |  |  |  |

 

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**AnnexA**

 

**SCHEDULE 4.8**

 

**WORLDSPAN/DELTA ESCROW AGREEMENT**

 

WORLDSPAN/DELTA ESCROW AGREEMENT, dated as of                     ,2004 (the “Escrow Agreement”), by and among Delta Air Lines, Inc., acorporation organized and existing under the laws of Delaware (“Delta”), TravelTransaction Processing Corporation, a corporation organized and existing underthe laws of Delaware (“Buyer”), Worldspan, L.P., a limited partnershiporganized and existing under the laws of Delaware (“Worldspan”), and [The Bankof New York, a New York banking corporation], as escrow agent (the “EscrowAgent”).

 

WHEREAS, Delta, NWA Inc., American Airlines, Inc., andNewCRS Limited, Inc. (each, a Seller and collectively, the “Sellers”), Buyerand Worldspan have entered into the Partnership Interest Purchase Agreement,dated as of March 3, 2003 (as amended, the “Purchase Agreement”), pursuantto which, among other things, Buyer has acquired directly or indirectly all ofthe outstanding general partnership interests and limited partnership interestsof Worldspan, and Sellers severally have caused the direct or indirect sale ofsuch partnership interests to Buyer on the terms and conditions set forththerein;

 

WHERAS, pursuant to the First Amendment to the DeltaFounder Airline Services Agreement, dated as of March 24, 2004, betweenWorldspan, TTPC and Delta, Worldspan (the “FASA First Amendment”), TTPC andDelta have agreed that the funds to be held in an escrow account established onbehalf of Delta (the “Escrow Account”) on the terms and conditions set forthherein shall secure certain of the indemnification obligations of Delta to theBuyer pursuant to the Purchase Agreement;

 

WHEREAS, the Escrow Agent is willing to establish theEscrow Account on the terms and subject to the conditions hereinafter setforth;

 

NOW, THEREFORE, in consideration of the foregoing andthe mutual covenants and agreements herein contained and intending to belegally bound hereby, the parties hereto hereby agree as follows:

 

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1.                                       Establishmentof Escrow Fund.

 

1.1                                 Contemporaneouslywith the execution and delivery of this Escrow Agreement, Worldspan isdelivering the amount of$[         ] (the “Escrow Amount”)to Escrow Agent pursuant to Sections 4.8(c) of the Delta Services Agreement bywire transfer of immediately available funds to the bank account previouslyspecified in writing by Escrow Agent to Buyer, and Escrow Agent herebyacknowledges receipt of the Escrow Amount.

 

1.2                                 EscrowAgent agrees to hold, invest and dispose of all funds received pursuant to thisSection 1 and any dividends, distributions, interest and other incomeaccumulation or capital appreciation received therefrom (hereinaftercollectively referred to as the “Escrow Fund”) in accordance with the terms andconditions of this Escrow Agreement.

 

1.3                                 TheEscrow Fund is being held for the benefitof Delta and Buyer as their interests may appear.  Delta’s and Buyer’s respective beneficial interests in the escrowfunds will be established pursuant to a Delta Final Determination for allpurposes, including the determination of the portion of such funds constitutingproperty of a Delta or Buyer bankruptcy estate.  Any payments which are deposited into the Escrow Accountshall be deemed to occur on the date of such deposit.

 

2.                                       Investmentof Escrow Fund; Accounting.

 

2.1                                 EscrowAgent shall invest all of the Escrow Fund (A) as designated by Delta in writingto Escrow Agent in (i) short-term negotiable certificates of deposit (notin excess of sixty (60) days) in a commercial bank having a combined capitaland surplus of at least $1,000,000,000; (ii) short-term commercial paper rated“prime-1” by Moody’s Investors Service, Inc. and “A-1” by Standard & PoorsCorporation; and/or (iii) short-term obligations of or guaranteed by the UnitedStates government or a money market fund whose investments are made strictly inobligations with remaining maturities of one year or less issued or guaranteedby the full faith and credit of the United States government; and/or (B)in such other investments as may be specifically approved in a writing duly executedby Delta and Buyer.

 

2.2                                 Forthe Escrow Fund, Escrow Agent shall maintain a ledger in Escrow Agent’scustomary form setting forth (i) the amount of the Escrow Fund attributable topayments made into such escrow fund pursuant to Section 1 and (ii) theamount of the Escrow Fund attributable to dividends, distributions, interestand other income accumulation or capital appreciation in respect of such EscrowFund.

 

3.                                       Noticeof Claims Against Delta.

 

3.1                                 IfBuyer shall assert a claim against Delta for any amount owing to Buyer pursuantto Section 8.2(a) or 8.2(b) of the Purchase Agreement (“Delta IndemnityClaim”), which Delta Indemnity Claim can only be made to the extent permittedunder the Purchase Agreement, Buyer shall give written notice of such Delta IndemnityClaim (“Delta Indemnity Claim Notice”) to each of Delta and Escrow Agent;provided, however, that no Delta Indemnity

 

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Claim may be assertedunder this Escrow Agreement after September 30, 2004.  Each Delta Indemnity Claim Notice shall (i)indicate that a Delta Indemnity Claim is being asserted, (ii) indicate theamount of Losses (as defined in the Purchase Agreement) which Buyer hassuffered or is reasonably likely to suffer (“Delta Indemnity Claim Amount”) and(iii) include a statement from Buyer that (x) Buyer has delivered to Deltawritten notice of such Delta Indemnity Claim pursuant to and in accordance withSection 8.2(f) of the Purchase Agreement and (y) if applicable, theSeller Mini-Basket Amount, the Seller General Basket Amount, the WorldspanMini-Basket Amount or the Worldspan General Basket Amount has been exceeded inaccordance with Section 8.2(a) or 8.2(b), as applicable, of the PurchaseAgreement.

 

3.2                                 ADelta Indemnity Claim shall be considered outstanding unless (i) it hasbeen withdrawn by Buyer by written notice to Escrow Agent and Delta or(ii) there has been a Delta Final Determination (as defined inSection 3.3) with respect to such Delta Indemnity Claim and any DeltaIndemnity Claim Amounts to which Buyer and/or Delta is entitled pursuant to theapplicable Delta Final Determination have been distributed to Buyer and/orDelta, as the case may be.

 

3.3                                 Asused herein, the term “Delta Final Determination” shall mean, with respect toany Delta Indemnity Claim, (i) a written compromise or settlement executedby Delta and Buyer and, if required, approved by the court or arbitrator beforewhich any such matter may be pending, or (ii) a final order, decree orjudgment of an arbitrator or a court or agency of competent jurisdiction in theUnited States of America (the time for appeal having expired or no appealhaving been taken) directing as to the disposition of such Delta IndemnityClaim.  Each Delta Final Determinationshall include the amount, if any, to be paid by Escrow Agent to Buyer and/orDelta in respect of the applicable Delta Indemnity Claim.

 

4.                                       Deliveryof Escrow Fund By Escrow Agent.

 

4.1                                 EscrowAgent shall pay to Delta all income or gain earned and received on or withrespect to the Escrow Fund on the last Business Day of each quarter, with thefirst quarter commencing on the first day of the first calendar month after thedate hereof.

 

4.2                                 EscrowAgent shall distribute the Escrow Fund (other than that portion of the EscrowFund attributable to income or gain earned and received on or with respect tothe Escrow Fund which shall be paid to Delta in accordance withSection 4.1) as follows:

 

(a)                                  Atany time after September 30, 2004, each time (A) the amount of the EscrowFund (excluding any portion thereof attributable to income or gain earned andreceived on or with respect to the Escrow Fund which shall be paid to Delta inaccordance with Section 4.1) exceeds (B) the aggregate amount ofall outstanding Delta Indemnity Claims, Delta and Buyer shall jointly andpromptly instruct Escrow Agent in writing to transfer such excess amount toDelta.  Upon receipt of such notice,Escrow Agent shall immediately transfer such excess amount to Delta.

 

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(b)                                 Inrespect of each Delta Indemnity Claim, Escrow Agent shall distribute out of theEscrow Fund (i) to Buyer the amount shown as owing by Delta to Buyer inthe Delta Final Determination of such Delta Indemnity Claim, and (ii) to Deltathe amount by which the applicable Delta Indemnity Claim Amount exceeds theamount paid to Buyer under clause (i) above to the extent permitted by clause(a), (c) or (d) of this Section 4.2; provided, however, in no event shallEscrow Agent distribute to Buyer in respect of all Delta Indemnity Claims morethan the lesser of (A) $24,000,000 or (B) the aggregate amount required to bepaid by Escrow Agent pursuant to Delta Final Determinations of Delta IndemnityClaims.

 

(c)                                  Allamounts held by Escrow Agent in the Escrow Account (other than amountsattributable to income or gain earned and received on or with respect to theEscrow Fund which shall be paid to Delta in accordance with Section 4.1)in excess of the Required Escrow Amount (as defined in the FASA FirstAmendment) shall from time to time be immediately distributed to Delta.

 

(d)                                 EscrowAgent shall promptly distribute the remainder, if any, of the Escrow Fund(excluding any portion thereof attributable to income or gain earned andreceived on or with respect to the Escrow Fund which shall be paid to Delta inaccordance with Section 4.1) to Delta after the later of (i)September 30, 2004 and (ii) such time as there are no outstanding DeltaIndemnity Claims as determined under Section 3.2 of this Escrow Agreement.

 

5.                                       Taxationof Income Earned on Escrow Fund.

 

The Escrow Fund shall betreated for federal income tax purposes as a grantor trust, the income of whichshall be taxable to Delta as the “grantor” of such grantor trust.  Delta shall provide Escrow Agent with aproperly completed and executed IRS Form W-9. The Escrow Agent does not have any interest in the Escrow Fund depositedhereunder but is serving as escrow holder only and having only possessionthereof.  Delta shall pay or reimbursethe Escrow Agent upon request for any transfer taxes or other taxes relating tothe Escrow Fund incurred in connection herewith and shall indemnify and holdharmless the Escrow Agent for any amounts that it is obligated to pay in theway of such taxes.  Any payments ofincome from this Escrow Account shall be subject to withholding regulationsthen in force with respect to United States taxes.  Buyer and Delta will provide the Escrow Agent with appropriateW-9 forms for tax I.D., number certifications, or W-8 forms for non-residentalien certifications, if required.  Itis understood that the Escrow Agent shall be responsible for income reportingonly with respect to income earned on investment of funds which are a part ofthe Escrow Fund and is not responsible for any other reporting.

 

6.                                       WireTransfer Instructions.

 

6.1                                 Alldeposits or payments to be made by Buyer, Worldspan and/or Delta to EscrowAgent into the Escrow Account under this Escrow Agreement shall be made by wiretransfer of immediately available funds to the following account:

 

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or tosuch other account as Escrow Agent may designate in writing to Buyer and Delta.

 

6.2                                 Allpayments required to be made by Escrow Agent to Delta under this EscrowAgreement shall made by wire transfer of immediately available funds to thefollowing account:

 
|   | Citibank New York                 |   |
|--------|-----------------------------------|--------|
|   | ABA 021000089                     |   |
|   | Account of Delta Air Lines,  Inc. |   |
|   | Account No. 40002617              |   |

 

or tosuch other account as Delta may designate in writing to Escrow Agent.

 

6.3                                 Allpayments required to be made by Escrow Agent to Buyer under this EscrowAgreement shall made by wire transfer of immediately available funds to thefollowing account:

 
|   | Bank of America                               |   |
|--------|-----------------------------------------------|--------|
|   | ABA # 111000012                               |   |
|   | Acct. # 3756317675                            |   |
|   | Ref:  Transaction Processing Corporation |   |

 

or tosuch other account as Buyer may designate in writing to Escrow Agent.

 

7.                                       Dutiesetc. of Escrow Agent.

 

7.1                                 EscrowAgent undertakes to perform only such duties as are expressly set forthherein.  Escrow Agent shall not be boundby any waiver, modification, amendment, termination, cancellation or revisionof this Escrow Agreement, unless any of the foregoing is in writing and signedby all other parties hereto, and, if Escrow Agent’s duties hereunder areaffected, unless Escrow Agent shall have given its prior written consentthereto.  Escrow Agent shall not bebound by any assignment by any party hereto of its rights hereunder unlessEscrow Agent shall have received written notice thereof from the assignor.  Escrow Agent shall perform any acts orderedby a court of competent jurisdiction. The obligations and duties of Escrow Agent are confined to thosecontained in this Escrow Agreement.

 

7.2                                 EscrowAgent makes no representation as to the validity, value, genuineness orcollectibility of any security or other document or instrument held by ordelivered to Escrow Agent.

 

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7.3                                 EscrowAgent shall be entitled to the fees set forth in Exhibit A hereto for itsservices as Escrow Agent hereunder and to reimbursement for any reasonableout-of-pocket fees and other expenses incurred by Escrow Agent in connectionwith (i) the performance of its duties hereunder and (ii) services required onaccount of disputes between Delta, on the one hand, and Buyer and/or Worldspan,on the other hand.  Buyer shall bear 50%of such fees and expenses and Delta shall bear 50% of such fees and expenses.  Escrow Agent shall deliver to Buyer and/orDelta upon request a detailed accounting as to all fees and reimbursableexpenses claimed by Escrow Agent.  Ifany fees, expenses or costs incurred by, or any obligations owed to, EscrowAgent hereunder are not promptly paid when due, Escrow Agent may reimburseitself therefore from the Escrow Fund and may sell, convey or otherwise disposeof any property in the Escrow Fund for such purpose.  If the Escrow Agent’s actions pursuant to the prior sentenceresults in Buyer and Worldspan, on the one hand, or Delta, on the other hand,bearing a greater percentage of Escrow Agent’s fees and expenses then suchperson or persons are required to bear in accordance with thisSection 7.3, the party or parties that have underpaid will reimburse theparty or parties that overpaid so that the intent of the second sentence ofthis Section 7.3 is effectuated.

 

7.4                                 Buyerand Delta hereby severally and jointly agree to indemnify Escrow Agent for, andhold it harmless against, any and all claims, suits, actions, proceedings,investigations, judgments, deficiencies, damages, settlements, liabilities andexpenses (including reasonable legal fees and expenses of attorneys chosen byEscrow Agent) as and when incurred, arising out of or based upon any act,omission, alleged act or alleged omission by Escrow Agent or any other cause,in any case in connection with the acceptance of, or performance ornon-performance by Escrow Agent of, any of Escrow Agent’s duties under thisEscrow Agreement, except as a result of Escrow Agent’s willful misconduct,gross negligence, bad faith or willful breach of this Escrow Agreement.  The parties shall severally and jointlyallocate the responsibility for the indemnity obligations contained in thisSection 7.4 in the same manner as the responsibility for fees and expensesare allocated in Section 7.3.  Ifany party or parties bears more than 50% of any indemnity payment, the partythat bears less than 50% of such payment shall reimburse the other party orparties in the same manner as provided in the last sentence of the firstparagraph of Section 7.3.  Theforegoing indemnity shall survive the termination of this Escrow Agreement.

 

Except in cases of Escrow Agent’s willful misconduct,gross negligence, bad faith or willful breach of this Escrow Agreement, EscrowAgent shall be fully protected by acting in reliance upon any certificate,statement, request, notice, advice, direction or other agreement or instrumentor signature believed by Escrow Agent to be genuine, by assuming that anyPerson (as defined in Section 16.9) purporting to give Escrow Agent any ofthe foregoing in accordance with the provisions hereof, or in connection witheither this Escrow Agreement or Escrow Agent’s duties hereunder, has been dulyauthorized to do so, or by acting or failing to act in good faith on the adviceof any counsel retained by Escrow Agent. Escrow Agent shall not be liable for any mistake of fact or law or anyerror of judgment, or for any act or omission, except as a

 

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result of its willfulmisconduct, gross negligence, bad faith or willful breach of this EscrowAgreement.

 

7.5                                 EscrowAgent shall incur no liability whatever in connection with its duties hereunderexcept for willful misconduct, gross negligence, bad faith or willful breach ofthis Escrow Agreement so long as it acts in good faith. In the event thatEscrow Agent shall be uncertain as to its duties or rights hereunder, or shallreceive any certificate, statement, request, notice, advice, direction or otheragreement or instrument or signature from any other party with respect to theEscrow Fund, which, in Escrow Agent’s opinion, is in conflict with any of theprovisions of this Escrow Agreement, or shall be advised that a dispute hasarisen with respect to the payment, ownership or right of possession of theEscrow Fund or any part thereof (or as to the delivery, non-delivery or contentof any certificate, statement, request, notice, advice, direction or otheragreement or instrument or signature), Escrow Agent shall be entitled, withoutliability to any Person, to refrain from taking any action other than to useits reasonable efforts to keep safely the Escrow Fund, until Escrow Agent shallbe directed otherwise in accordance herewith, but Escrow Agent shall be underno duty to institute or defend any proceeding, although Escrow Agent may, inits discretion and at the expense of the parties allocated severally in thesame manner as the allocation of fees and expenses as provided inSection 7.3 hereof, institute or defend such proceedings.

 

7.6                                 If,at any time, there shall exist any dispute between Delta, on the one hand, andBuyer and/or Worldspan, on the other hand, with respect to the holding ordisposition of any portion of the Escrow Fund, or any other obligations ofEscrow Agent hereunder, or if at any time Escrow Agent is unable to determinethe proper disposition of any portion of the Escrow Fund, or Escrow Agent’sproper actions with respect to its obligations hereunder, then Escrow Agent maypetition (by means of an interpleader action or any other appropriate method)the Supreme Court of the State of New York, County of New York, or the U.S.District Court for the Southern District of New York, for instructions withrespect to such dispute, and to the extent required by law, pay into such court,for holding and disposition in accordance with the instructions of theapplicable court, all funds held by it in the Escrow Fund.  All costs incident to such matter arerecoverable by Escrow Agent from Buyer and Delta severally allocated in thesame manner as the allocation of fees and expenses as provided inSection 7.3 hereof.

 

8.                                       Resignation;Successor Escrow Agent.

 

8.1                                 EscrowAgent may resign and be discharged from its duties or obligations hereunder atany time by giving no less than thirty (30) Business Days prior written noticeof such resignation to Buyer and Delta specifying the date when suchresignation shall take effect; provided, however, that no such resignationshall be effective unless and until Buyer and Delta have selected a successorEscrow Agent and such successor Escrow Agent shall have assumed all of theobligations of Escrow Agent hereunder. Upon receipt of written notice from Buyer and Delta that a successorEscrow Agent has been selected and assumed the obligations of Escrow Agenthereunder, Escrow Agent shall promptly deliver the Escrow Fund to suchsuccessor

 

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Escrow Agent and renderthe accounting required by Section 8.3 and shall thereafter have nofurther obligations hereunder.

 

8.2                                 Buyerand Delta acting together shall have the right to terminate the appointment ofEscrow Agent hereunder by giving notice in writing of such termination toEscrow Agent, specifying the date upon which such termination shall takeeffect.  In the event of suchtermination, Buyer and Delta agree that they will jointly appoint a successorEscrow Agent within thirty (30) Business Days of such notice and Escrow Agenthereby agrees that it shall promptly deliver the Escrow Fund to such successorEscrow Agent and render the accounting required by Section 8.3 and that itshall thereafter have no further obligations hereunder.  Upon receipt of the Escrow Fund, thesuccessor Escrow Agent shall thereupon be bound by all of the provisionshereof.

 

8.3                                 Inthe event of the resignation or removal of Escrow Agent or upon the terminationof the Escrow Agreement pursuant to Section 9 and if requested in writingby either Buyer or Delta, Escrow Agent shall render to Buyer and Delta and tothe successor Escrow Agent, if any, an accounting in writing of the propertyconstituting the Escrow Fund and all distributions therefrom.

 

9.                                       Terminationof the Escrow Agreement.

 

This Escrow Agreement, except for Section 7.4hereof which shall continue in effect, shall terminate on the date on which thelast distribution required to be made by Escrow Agent pursuant toSection 4 is made and the balance of the Escrow Fund is zero; provided,however, that this Escrow Agreement shall not terminate earlier thanSeptember 30, 2004.

 

10.                                 GoverningLaw.

 

THIS ESCROW AGREEMENT IS INTENDED AS A CONTRACT UNDERAND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LOCAL LAW OF THESTATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS TO THEEXTENT SUCH PRINCIPLES WOULD PERMIT OR REQUIRE THE APPLICATION OF LAW OF ANY OTHERJURISDICTION), INCLUDING WITHOUT LIMITATION AS TO ALL MATTERS OF CONSTRUCTION,VALIDITY, ENFORCEABILITY AND PERFORMANCE.

 

11.                                 Notices.

 

Notices and other communications provided for hereinshall be in writing (which shall include notice by facsimile transmission) andshall be delivered or mailed (or if by graphic scanning or other facsimilecommunications equipment of the sending party hereto, delivered by suchequipment), addressed as follows:

 

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|                       |                                                          |
|----------------------------|---------------------------------------------------------------|
| If to Delta:               |                                                          |
|                       | Delta Air Lines, Inc.                                         |
|                       | 1030 Delta Blvd.                                              |
|                       | Atlanta, GA 30320                                             |
|                       | Attention:                                                    | Executive Vice  President &  Chief Financial Officer |
|                       | Fax No.:  (404) 715-4098                                 |
|                       |                                                          |
| and  to:                   |                                                          |
|                       | Hughes Hubbard &  Reed LLP                                |
|                       | One Battery Park Plaza                                        |
|                       | New York, New York  10004                                |
|                       | Attention:  Kenneth A. Lefkowitz, Esq.                   |
|                       | Fax No:  (212) 422-4726                                  |
|                       |                                                          |
|                       | Delta Air Lines, Inc.                                         |
|                       | 1030 Delta Blvd.                                              |
|                       | Atlanta, GA 30320                                             |
|                       | Attention:  Senior Vice President & General  Counsel |
|                       | Fax No.:  (404) 715-2233                                 |
|                       |                                                          |
| If to  Buyer or Worldspan: |                                                          |
|                       | Worldspan, L.P.                                               |
|                       | 300 Galleria Parkway,  N.W.                                   |
|                       | Suite 2100                                                    |
|                       | Atlanta, Georgia 30339                                        |
|                       | Attention:  General Counsel                              |
|                       | Fax No.: (770) 563-7878                                       |
|                       |                                                          |
|                       | with copies to:                                               |
|                       |                                                          |
|                       | Citigroup Venture  Capital Equity Partners, LP                |
|                       | 399 Park Avenue, 14th  Floor                                  |
|                       | New York, New York  10022                                     |
|                       | Attention:  Joseph Silvestri                             |
|                       | Fax No:  (212) 888-2940                                  |
|                       |                                                          |
|                       | Ontario Teachers’  Pension Plan Board                    |
|                       | 5650 Yonge Street                                             |
|                       | Toronto, Ontario M2M  4H5                                     |
|                       | Attention:  Shael Dolman                                 |
|                       | Fax No.:  (416) 730-5082                                 |

 

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| and  to:             |                                                                                                                                                                                                     |
|----------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                 | Dechert LLP                                                                                                                                                                                              |
|                 | 4000 Bell Atlantic  Tower                                                                                                                                                                                |
|                 | 1717 Arch Street                                                                                                                                                                                         |
|                 | Philadelphia, Pennsylvania  19103                                                                                                                                                                        |
|                 | Attention:  Geraldine A. Sinatra                                                                                                                                                                    |
|                 | Fax No.:  (215) 994-2222                                                                                                                                                                            |
|                 |                                                                                                                                                                                                     |
|                 | Debevoise &  Plimpton                                                                                                                                                                                |
|                 | 919 Third Avenue                                                                                                                                                                                         |
|                 | New York, New York  10022                                                                                                                                                                                |
|                 | Attention:  Margaret A. Davenport                                                                                                                                                                   |
|                 | Fax No.:  (212) 909-6836                                                                                                                                                                            |
|                 |                                                                                                                                                                                                     |
| If to  Escrow Agent: |                                                                                                                                                                                                     |
|                 | [                                 ] |
|                 |                                                                                                                                                                                                     |   |
|                 |                                                                                                                                                                                                     |   |
|                 | Attention:                                                                                                                                                                                               |   |   |
|                 | Fax No:                                                                                                                                                                                                  |   |   |
|                      |                                                                                                                                                                                                          |  |  |  |

 

or to such other addressas the applicable party may from time to time designate in writing inaccordance with this Section 11. All notices and other communications given to any party hereto in accordancewith the provisions of this Escrow Agreement shall be deemed to have been givenwhen delivered if delivered by hand, when transmission confirmation is receivedif delivered by facsimile, three (3) Business Days after mailing if mailed, andone Business Day after deposit with an overnight courier service if deliveredby overnight courier.  Notwithstandingthe foregoing, if a notice or other communication is actually received after5:00 p.m. at the recipient’s designated address, such notice or other communicationshall be deemed to have been given the later of (i) the next Business Day or(ii) the Business Day on which such notice or other communication is deemed tohave been given pursuant to the immediately preceding sentence.

 

12.                                 NoAssignment.

 

This Escrow Agreement shall be binding upon and inureto the benefit of the successors, heirs, beneficiaries, distributees andpermitted assigns of the parties hereto. No assignment of any rights or delegation of any obligations providedfor herein may be made by Escrow Agent except in accordance with the provisionsof this Escrow Agreement and neither Buyer or Worldspan, on the one hand, norDelta, on the other hand, may assign its rights or obligations hereunderwithout the prior written consent of Delta or Buyer, respectively, and any suchattempted assignment or delegation without such consent shall be void.  Notwithstanding the foregoing, Buyer mayassign any of its rights and obligations hereunder in whole or in part to anyAffiliate (as defined in Section 16.1) of Buyer and may collaterallyassign its rights

 

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hereunder to any lenderor financing source to Buyer, in each case, without the consent of the otherparties hereto; provided, however, that no such assignment by Buyer shallrelieve Buyer from any of its obligations hereunder.  Any corporation, association or agency into which the EscrowAgent may be converted or merged, or with which it may be consolidated, or towhich it may sell or transfer its trust business and assets as a whole orsubstantially as a whole, or any corporation or association resulting from anysuch conversion, sale, merger, consolidation or transfer to which it is aparty, ipsofacto, shall be and become successor Escrow Agenthereunder and vested with all of the powers, discretions, immunities,privileges and all other matters as was its predecessor, without the executionor filing of any instrument or any further set, deed or conveyance on the partof any of the parties hereto, anything herein to the contrary notwithstanding.

 

13.                                 Counterparts.

 

This Escrow Agreement may be executed in two or morecounterparts, each of which will be deemed to be an original copy of thisEscrow Agreement and all of which, when taken together, shall be deemed toconstitute one and the same agreement.

 

14.                                 Section Headings.

 

The section headings contained in this EscrowAgreement are inserted for convenience of reference only and shall not affectthe meaning or interpretation hereof.

 

15.                                 EntireAgreement; Construction.

 

This Escrow Agreement and the Purchase Agreement andany ancillary documents thereto constitute the entire understanding of theparties hereto with respect to the subject matter hereof.  Nothing contained in this Escrow Agreementshall be deemed to require either Buyer or Worldspan to exercise its rightsunder this Escrow Agreement in connection with any claims it may have under thePurchase Agreement in lieu of any other rights or remedies under such otheragreements.

 

16.                                 CertainDefined Terms.

 

16.1                           As usedin this Escrow Agreement, “Affiliate” shall mean, as to any specified Person,any other Person which, directly or indirectly through one or moreintermediaries, controls, is controlled by or is under common control with,such specified Person.  For the purposesof this definition, “control” means the possession of the power to direct orcause the direction of the management and policies of such Person, whetherthrough the ownership of voting securities, by contract or otherwise.

 

16.2                           As usedin this Escrow Agreement, “Business Day” shall mean any day except Saturday,Sunday or any other day on which commercial banks in New York, New York, U.S.A.are authorized or required by law to remain closed.

 

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16.3                           As usedin this Escrow Agreement, “Person” shall mean any individual, corporation,partnership, limited liability company, joint venture, association, joint stockcompany, trust (including any beneficiary thereof), unincorporated organizationor government or any agency or political subdivision thereof.

 

16.4                           As usedin this Escrow Agreement, “TTPC/American Escrow Agreement” shall mean theTTPC/American Indemnity Claim Escrow Agreement among American Airlines, Inc.,Buyer and Escrow Agent.

 

16.5                           As usedin this Escrow Agreement, “Worldspan/Northwest Escrow Agreement” shall mean theWorldspan/Northwest Indemnity Claim Escrow Agreement among Northwest Airlines,Inc., Buyer, Worldspan and Escrow Agent, or the form thereof if such agreementhas not been entered into as of the applicable time.

 

17.                                 Amendments;Waivers.

 

17.1                           ThisEscrow Agreement may not be amended except by an instrument in writing signedby Delta, Buyer and Escrow Agent; provided, however, that this Escrow Agreementmay not be amended unless Buyer and Escrow Agent offer to enter into the sameamendment, if applicable, with (i) Northwest Airlines, Inc. with respect to theWorldspan/Northwest Escrow Agreement and (ii) American Airlines, Inc. withrespect to the TTPC/American Escrow Agreement.

 

17.2                           Theterms of this Escrow Agreement may be waived only by a written instrumentsigned by the party that would have been able to require compliance therewith;provided, however, that none of Buyer, Worldspan or Escrow Agent may waive anyprovision of this Escrow Agreement without also offering to waive, ifapplicable, the same provision under each of the Worldspan/Northwest EscrowAgreement and the TTPC/American Escrow Agreement.  No delay on the part of any party in exercising any right, poweror privilege hereunder shall operate as a waiver thereof.  No waiver on the part of any party of anysuch right, power or privilege shall preclude any further exercise thereof orthe exercise of any other such right, power or privilege.

 

18.                                 NoThird Party Beneficiaries.

 

18.1                           ThisEscrow Agreement shall be for the benefit of the parties hereto and none of theprovisions of this Escrow Agreement shall be for the benefit of or enforceableby any third party; provided, however, that Northwest Airlines, Inc. andAmerican Airlines, Inc. shall be third party beneficiaries to the provisocontained in Section 17.1 and the proviso contained in the first sentenceof Section 17.2, and shall have the right to enforce such provisionsdirectly.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Escrow Agreement to be duly executed as of the day and year first abovewritten.

 
|   | DELTA AIR LINES, INC.                      |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By:                                        |   |
|   |                                       | Name: |
|   |                                       | Title: |
|   |                                       |
|   |                                       |
|   | TRAVEL TRANSACTION PROCESSING  CORPORATION |
|   |                                       |
|   |                                       |
|   | By:                                        |   |
|   |                                       | Name: |
|   |                                       | Title: |
|   |                                       |
|   |                                       |
|   | WORLDSPAN, L.P.                            |
|   |                                       |
|   |                                       |
|   | By:                                        |   |
|   |                                       | Name: |
|   |                                       | Title: |
|   |                                       |
|   |                                       |
|   | [THE BANK OF NEW YORK]                     |
|   |                                       |
|   |                                       |
|   | By:                                        |   |
|   |                                       | Name: |
|   |                                       | Title: |

 

 

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