Exhibit 10.77


 


First Amendment


to


Northwest Founder Airline Services Agreement


 


This First
Amendment 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 Northwest
Founder 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 meanings
ascribed to them in the Agreement.


 


WHEREAS, the
Agreement provides that Worldspan will provide certain credits to Northwest to
be applied against service fee payments due from Northwest to Worldspan under
the Agreement;


 


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


 


NOW,
THEREFORE, in consideration of the agreements, terms and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:


 


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


 


“4.8         Termination of FASA Credits upon an
IPO.  From and after the
consummation of an Initial Public Offering and Northwest’s receipt of the FASA
Credit Termination Payment (as defined below), Section 4.4 hereof and the
defined terms utilized therein if such defined terms are not utilized elsewhere
in the Agreement shall have no further force and effect and the following
provisions of this Section 4.8 shall apply:


 


(a)           Immediately after consummation of an
Initial Public Offering, Worldspan shall pay to Northwest by wire transfer of
immediately available funds an amount equal to the FASA Credit Termination
Payment.


 


As used
herein, 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 in
September, 2004,


 

















 


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


 


(A) the amount
of any Northwest FASA Credits applicable under Schedule 4.4(a) hereto to any
calendar month following the Initial Public Offering and which have been
included in invoices by Worldspan under Article 4 of the Agreement relating to
periods prior to the Initial Public Offering,


 


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


 


(C) if the FASA Credit Termination
Payment is made to Northwest on or prior to September 30, 2004,  the
amount of any Northwest FASA Claim Amounts which have not, prior to the Initial
Public Offering , been reflected in a Current Invoice and have been deposited
by Worldspan into the escrow agreement specified in Section 4.4(b)(3) of the
Agreement as it was in effect prior to the contingent modifications
contemplated by this Section 4.8, and


 


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


 


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


 


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


 


(d)           Upon the occurrence of a Northwest
General Termination, Northwest Bankruptcy FASA Rejection, or termination of
this 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 monthly
basis commencing at the effective time of such termination until and including
June, 2012, an amount in cash equal to the amount listed in Column B as the
applicable Northwest FASA Credit for such month on Schedule 4.4(a) hereof.  Any payments due from Northwest pursuant to
this Section 4.8(d) shall be made by wire transfer of immediately available
funds from Northwest to Worldspan on the first business day of each calendar
month following the month in which such termination occurs; provided, however,
for the calendar month in which such termination occurs, Northwest shall pay to
Worldspan a prorated amount of the Northwest 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 month multiplied by a fraction, the numerator of which is the
number of days remaining in such month following the date of termination and
the denominator of which is the total number of days in such month.


 


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


 


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


 


“Section
7.1  Termination Without Cause.


 


(a)           In the event that an
Initial Public Offering is not consummated on or before September 30, 2004,
Northwest may terminate this Agreement without cause by giving 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 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 termination
results in Northwest having a funding obligation pursuant to Section 1.2(a) of
the Worldspan/Northwest Indemnity Claim Escrow Agreement, then the termination
shall not be effective unless and until Northwest has performed that funding
obligation in full.  This termination
notice may be given at any time prior to twenty-seven (27) months after the
Effective Date so long as the notice is given within the time period specified
above and the termination is not effective prior to twenty-seven (27) months
after the Effective Date.


 


(b)           In the event that an
Initial Public Offering is consummated on or before September 30, 2004;
Northwest may terminate this Agreement without cause by giving 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 termination will be effective.”


 


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


 


“‘TTPC’ means
Travel Transaction Processing Corporation, a Delaware corporation, which
changed its name to Worldspan Technologies Inc. in March, 2004.”


 


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


 


(b)           As promptly as practicable, and in
any event within 30 days, after any Northwest Indemnitee shall receive any
notice of, or otherwise become aware of, the commencement of any Claim or the
assertion of any Claim, for which indemnification is provided for under this
Section 4 (an “Indemnification Event”), such Northwest Indemnitee shall give
written notice (an “Indemnification Claim”) to the party from which such
indemnification is (or, under such assumption, could be) sought (an
“Indemnifying Party”) describing in reasonable detail the Indemnification Event
and the basis on which indemnification is (or, under such assumption, could be)
sought; but the failure of the Northwest Indemnitee to give the Indemnification
Claim within such time period shall not relieve the Indemnifying Party of any
liability hereunder in respect of such Indemnification Event (or the facts or
circumstances giving rise thereto) except to the extent that such Indemnifying
Party is materially prejudiced or harmed as a consequence of such failure.  The Indemnifying Party shall (whether or not
the Northwest Indemnitee is entitled to claim indemnification under this
Section 4) be entitled to, and the Northwest Indemnitee shall provide the
Indemnifying Party with the right to, participate in, and assume sole control
over, the defense and settlement of such Claim (with counsel reasonably
satisfactory to the Northwest Indemnitee); provided, however,


 


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that (i) the
Indemnifying Party or Indemnifying Parties shall (x) provide written notice to
the Northwest Indemnitee of its or their election to assume control of the
defense of such Claim and (y) have expressly agreed in writing that, as between
the Indemnifying Party and the Northwest Indemnitee, the Indemnifying Party
shall be solely obligated to satisfy and discharge such Claim, (ii) the
Northwest Indemnitee shall be entitled to participate in the defense of such
Claim and to employ counsel at its own expense to assist in the handling of such
Claim, provided that if there is an actual conflict of interest between the
Indemnifying Party and the Northwest Indemnitee, which in the reasonable
opinion of counsel to the Northwest Indemnitee would prevent one counsel from
representing both the Indemnifying Party and the Northwest Indemnitee in any
matter, the Indemnifying Party shall be responsible for all such reasonable
counsel expenses of the Northwest Indemnitee, and (iii) the Indemnifying
Party shall obtain the prior written approval of the Northwest Indemnitee,
which approval shall not be unreasonably withheld or delayed, before entering
into 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 or
other equitable relief would be imposed against the Northwest Indemnitee or
(y) in the case of a settlement, the Northwest Indemnitee would not
thereby receive from the claimant an unconditional release from all further
liability in respect of such Claim. 
After written notice by the Indemnifying Party or Indemnifying Parties
to the Northwest Indemnitee of its or their election to assume control of the
defense of any such Claim, subject to the provisions of the following
exceptions, the Indemnifying Party or Indemnifying Parties shall 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 Indemnifying Parties do not assume sole
control over the defense or settlement of such Claim as provided in this
Section 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 such
Claim does not constitute such a failure to defend) the Northwest Indemnitee
shall have the right (as to itself) to defend and, upon obtaining the written
consent of the Indemnifying Party if such Indemnifying Party is liable for the
Losses with respect to such Claim, settle the claim in such manner as it may
deem appropriate, and the Indemnifying Party shall promptly reimburse the
Northwest Indemnitee therefor in accordance with this Section 4.  Notwithstanding the foregoing provisions of
this Section 4, the Northwest Indemnitee shall have the right at all times to
take over and assume the control (as to itself) of the defense or settlement of
any Claim; provided, however, that in such event and if the Northwest
Indemnitee has not taken over control of such Claim under the previous sentence
the Indemnifying Party or Indemnifying Parties shall cease to have any
obligation under this Section 4 in respect of such Claim.  The Indemnifying Party shall not be liable
under this Section 4 for any settlement or compromise effected without its
consent.


 


(c)           The Northwest
Indemnitee and the Indemnifying Party shall each cooperate fully (and shall
each cause its Affiliates to cooperate fully) with the other in the defense of
any Claim pursuant to Section 4. 
Without limiting the generality of the foregoing, each such Person shall
furnish 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 its
Affiliates’ possession as may reasonably be requested by the other Person for
the purpose of defending against any such Claim.


 


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


 


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


 


6.                                       Except
as expressly provided in this Amendment, all of the terms and conditions of the
Agreement remain in full force and effect and are fully binding upon and
enforceable against the parties hereto.


 


7.                                       This
Amendment may not be amended or modified except by a written agreement signed
by Worldspan and Northwest.


 


8.                                       This
Amendment shall be governed by, and shall be enforced and construed in
accordance with, the laws of the State of New York (other than its rules
regarding conflicts of laws).


 


9.                                       This
Amendment may be executed in several counterparts, and all counterparts so
executed 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, the parties hereto have caused this Amendment to be duly executed as
of 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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