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Exhibit 10.12(a)
FIRST AMENDMENT TO
DEVELOPMENT, LICENSE AND HOSTING AGREEMENT
BETWEEN
NORTHWEST AIRLINES, INC. AND
ORBITZ, LLC
This First Amendment, effective as of
December 30, 2003 (the "Amendment
Effective Date"), is by and between
NORTHWEST AIRLINES, INC., a Minnesota
company having offices in Eagan,
Minnesota,("Airline") and ORBITZ, LLC, a
Delaware limited liability company having
offices in Chicago, Illinois
("Orbitz"). Airline and Orbitz may be
referred to hereinafter together as the
"Parties."
WHEREAS, the Parties entered into a Development, License and
Hosting
Agreement with an Effective Date of March
8, 2002 (the "Agreement"). Capitalized
terms not defined herein shall have the
respective meanings ascribed to them in
the Agreement, and unless otherwise
indicated, all section references are to
sections of the Agreement.
WHEREAS, the Parties are desirous of extending the Initial Term of
the
Agreement through December 31, 2007.
WHEREAS, both Parties wish to accordingly modify the Agreement
with
this First Amendment.
NOW, THEREFORE, the Parties agree as follows:
1. A new Section 1.34 shall be added
as follows:
1.34 "Development Fee" means the fee(s) set forth in Exhibit D
that
Airline will pay to Orbitz in consideration for the Development
Services.
2. A new Section 1.35 shall be added
as follows:
1.35 "Development Services" means requirements development and
definition, project management, database and networking
services,
migration, coding, engineering, testing, implementation,
integration
and other work or services that Orbitz will provide to Airline,
either
directly or through Subcontractors, pursuant to this Agreement,
including, without limitation, any Pre-Launch Development
Services.
3. A new Section 1.36 shall be added
as follows:
1.36 "Safe Harbor Event" means either (a) an Act of God,
natural
disaster, civil disturbance, strike, labor unrest, act of war
(declared
or
undeclared), act of terrorism, outbreak or escalation of
hostilities, or other calamity or crisis which has a materially
adverse
effect on Airline's business and the travel industry generally,
or
[***].
4. The first sentence of Section 16.1
shall be replaced in its entirety
with the following:
"This Agreement shall be in effect as of the Effective Date and
shall
continue through December 31, 2007 (the "Initial Term")."
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***Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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5. Exhibit D, Section II (Hosting and
Support Fees) shall be replaced in
its entirety with the following:
II. Hosting and Support Fees:
As of the 1st day of the calendar month following the Amendment
Effective Date, Airline will pay Orbitz transaction fees based on
the
following transaction pricing schedule per Ticket:
o $[***]
per transaction for the 1st [***] Tickets per 12-month
calendar year period
o $[***]
per transaction for the next [***] Tickets per 12-month
calendar year period
o $[***]
per transaction for the next [***] Tickets per 12-month
calendar year period
o $[***]
per transaction for the next [***] Tickets per 12-month
calendar
year period
o $[***]
per transaction for the next [***] Tickets per 12-month
calendar year period
o $[***]
per transaction for the next [***] Tickets per 12-month
calendar year period
o $[***]
per transaction for Tickets in excess of [***] per
12-month calendar year period
For the period of September 6, 2003 to December 31, 2003, the
Hosting
and Support Fee is recalculated at $[***] per transaction,
reflecting
the estimated annual Hosting and Support Fee of the Agreement.
Any
credits due Airline resulting from this 2003 revised
transaction
calculation will be applied to the January 2004 invoice.
Airline will pay Orbitz a minimum transaction fee of $[***] per
month, regardless of the number of Tickets actually processed
during
the month.
Subject to the following paragraph, Airline guarantees that the
total
annual Ticket revenue for [***] shall meet or exceed $[***],
provided
that Airline's payment obligation, if any, pursuant to this
guarantee
shall be determined as follows: if the total annual Ticket Revenue
for
[***], calculated using the above pricing schedule (the
"Amended
Schedule Revenue"), is less than $[***], then total annual
Ticket
Revenue for [***] shall be re-calculated using the pricing schedule
in
the original Exhibit D, Section II of the Agreement. If the result
of
that re-calculation (the "Original Schedule Revenue") is less
than
$[***], then no further payment is due hereunder with respect to
[***]
transactions; provided, however, if the Original Schedule Revenue
is
equal to or greater than $[***], then Orbitz shall invoice Airline
on
[***] for the difference between $[***] and the Amended
