Exhibit 10.88
WAIVER AND CONSENT TO CREDIT
AGREEMENT
Dated as of February 4, 2005
This WAIVER AND CONSENT (this
“ Agreement ”) is among WORLDSPAN
TECHNOLOGIES INC. (formerly known as Travel Transaction
Processing Corporation), a Delaware corporation (“ WTI
”), WS HOLDINGS LLC , a Delaware limited liability
company (“ LP ”), and WORLDSPAN, L.P. , a
Delaware limited partnership (the “ Borrower ”),
and LEHMAN COMMERCIAL PAPER INC. , as administrative agent
for the Lenders (in such capacity, the “ Administrative
Agent ”).
PRELIMINARY
STATEMENTS
A.
WTI, LP, the Borrower, the Lenders and the Administrative Agent
have entered into that certain Credit Agreement, dated as of June
30, 2003, by and among WTI, LP, the Borrower, the lenders from time
to time party thereto (the “ Lenders ”), Lehman
Brothers Inc., as sole and exclusive advisor, joint lead arranger
and joint book-runner, Deutsche Bank Securities Inc., as
syndication agent, joint lead arranger and joint book-runner,
JPMorgan Chase Bank, N.A., Citicorp North America, Inc. and Dymas
Funding Company, LLC, as documentation agents, and the
Administrative Agent (as amended from time to time, the “
Credit Agreement ”; capitalized terms used but not
otherwise defined herein are used with the meanings given such
terms in the Credit Agreement).
B.
The Borrower intends to (i) issue (the “ Notes
Offering ”) $350,000,000 in aggregate principal amount of
its Senior Second Lien Secured Floating Rate Notes due 2011 (the
“ Senior Secured Notes ”), which shall be
secured on a second priority basis by substantially all of the
assets of the Borrower and its Subsidiaries, (ii) concurrently
repay all of the outstanding Term Loans and any accrued and unpaid
interest thereon and terminate the Term Loan Facility, (iii)
consummate a tender offer and consent solicitation (the “
Tender Offer ”) to repurchase up to all, but at least
a majority, of the Borrower’s outstanding Senior Notes and to
amend the Senior Notes Indenture to remove certain of the
restrictive covenants therein, which Tender Offer was commenced on
January 25, 2005 and is expressly conditioned upon the receipt of
any consents required under the Credit Agreement to consummate the
Tender Offer, (iv) concurrently make a cash distribution of up to
$10,000,000 to WTI and LP (and LP intends to pay any such dividends
received to WTI) to permit WTI to refinance the Seller Note in an
aggregate principal amount of $45,000,000 originally issued to
American and currently held by Affiliates of CVC for a combination
of up to $10,000,000 in cash and subordinated notes of WTI (which
will be issued to the current holders of the Seller Note or to one
or more third parties, including an Affiliate of the Borrower) (the
“ WTI Notes ”), in form and substance consistent
with the terms thereof described in the preliminary offering
memorandum with respect to the Notes Offering (the “ Notes
Offering Memorandum ”) and otherwise reasonably
satisfactory to the Administrative Agent (the “ Seller
Note Refinancing ”) and (v)(1) make a cash payment of up
to $7,700,000 in the aggregate to WTI to permit it to prepay and
terminate up to $4,600,000 of sponsor advisory fees to an Affiliate
of CVC and to make a special cash dividend of up to $3,100,000 to
holders of WTI’s Class B Common Stock (collectively, the
“ Sponsor Payments ”) and (2) amend the advisory
agreement between the Borrower and WTI, the advisory agreement
between WTI and the Affiliate of CVC and the certificate of
incorporation of WTI to permit the Sponsor Payments, which
amendments shall be in form and substance reasonably satisfactory
to the Administrative Agent (the “ Sponsor Amendments
”).
C.
In connection with the foregoing, WTI, LP and the Borrower have
requested that the Administrative Agent and the requisite Lenders
enter into this waiver and consent, as set forth herein, and the
Administrative Agent and the requisite Lenders are willing to enter
into such waiver and consent on the terms and conditions stated
below.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
WAIVER. Upon the terms and subject to the
conditions set forth herein and in reliance on the representations
and warranties of the Loan Parties set forth herein, the requisite
Lenders hereby waive, until March 15, 2005, compliance with the
following provisions of the Credit Agreement and the Guarantee and
Collateral Agreement, in each case for the limited purposes set
forth below:
(a)
Mandatory Prepayments . The requirement set forth in
Sections 2.12(a) and (d) of the Credit Agreement that, after
payment in full of the Term Loans, the Borrower and/or WTI use the
Net Cash Proceeds of the Notes Offering and the Seller Note
Refinancing (if any) to permanently reduce the Revolving Credit
Commitments and replace outstanding Letters of Credit and/or
deposit an amount in immediately available fund in a cash
collateral account established with the Administrative Agent for
the benefit of the Secured Parties, so long as such proceeds are
used as described above.
(b)
Limitation on Indebtedness . The requirement set forth
in Section 7.2 of the Credit Agreement that WTI, LP and the
Borrower not create, incur, assume or suffer to exist any
Indebtedness other than Indebtedness permitted thereunder, to the
limited extent necessary to permit the Notes Offering and the
incurrence of the obligations under the Senior Secured Notes, each
on terms and conditions consistent with those described in the
Notes Offering Memorandum, and to permit the Seller Note
Refinancing and the incurrence of the obligations under the WTI
Notes, each on terms and conditions consistent with those described
in the Notes Offering Memorandum and otherwise reasonably
satisfactory to the Administrative Agent.
(c)
Limitation on Liens . The requirement set forth in
Section 7.3 of the Credit Agreement that WTI, LP and the Borrower
not create, incur, assume or suffer to exist any Lien upon any of
its Property other than Liens permitted thereunder, to the limited
extent necessary to permit the incurrence of second-priority Liens
on the Collateral securing the Senior Secured Notes (junior to the
Liens securing the Obligations); provided , however ,
that this waiver shall be subject to the negotiation, execution and
delivery of intercreditor arrangements between the holders of the
Senior Secured Notes and the Lenders under the Credit Agreement,
pursuant to an agreement with terms and conditions consistent with
those described in the Notes Offering Memorandum and otherwise
reasonably satisfactory to the Administrative Agent (the “
Intercreditor Agreement ”).
(d)
Limitation on Restricted Payments . The requirement
set forth in Section 7.6 of the Credit Agreement that WTI, LP and
the Borrower not make any Restricted Payments (other than those
specified therein), to the limited extent necessary to permit any
Restricted Payments necessary to consummate the Seller Note
Refinancing, make the Sponsor Payments and make cash interest
payments on the WTI Notes to the extent permitted by the indenture
governing the Senior Secured Notes.
(e)
Limitation on Optional Payments and Modifications of
Indebtedness . The requirements set forth in Section 7.9
of the Credit Agreement that WTI, LP and the Borrower not (i) make
or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Indebtedness, or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance, and (ii) amend,
modify or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any
Indebtedness, in each case to the limited extent necessary to (x)
waive (the “ Tender Offer Commencement Waiver ”)
any Default or Event of Default arising from the commencement and
making of the Tender Offer (the “ Tender Offer
Commencement Default ”), (y) permit the consummation of
the Tender Offer and (z) permit the Seller Note
Refinancing.
2
(f)
Limitation on Transactions with Affiliates . The
requirement set forth in Section 7.10 of the Credit Agreement that
WTI, LP and the Borrower not enter into any transaction with any
Affiliate unless such transaction is (a) not otherwise
prohibited under the Credit Ag
