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EXHIBIT 4.16
DEPOSIT AGREEMENT
(Class D)
Dated as of May 17, 2001
between
WILMINGTON TRUST COMPANY
as Escrow Agent
and
CITIBANK, N.A.
as Depositary
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DEPOSIT AGREEMENT (Class D) dated as of May 17, 2001 (as amended,
modified or supplemented from time to time, this "Agreement") between WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Escrow Agent under the Escrow
and Paying Agent Agreement referred to below (in such capacity, together with
its successors in such capacity, the "Escrow Agent"), and CITIBANK, N.A., a
national banking association as depositary bank hereunder (the "Depositary").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and Wilmington
Trust Company, not in its individual capacity except as otherwise expressly
provided therein, but solely as trustee (in such capacity, together with its
successors in such capacity, the "Pass Through Trustee") have entered into a
Pass Through Trust Agreement dated as of May 17, 2001 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the "Pass
Through Trust Agreement") relating to America West Airlines Pass Through Trust
2001-1D-O pursuant to which the America West Airlines Pass Through Trust, Series
2001-1D-O Certificates referred to therein (the "Certificates") are being issued
(the date of such issuance, the "Issuance Date");
WHEREAS, America West and Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche Banc
Alex. Xxxxx Inc., Mizuho International plc, Banc One Capital Markets, Inc. and
Tokyo-Mitsubishi International plc (collectively, the "Initial Purchasers" and,
together with their respective transferees and assigns as registered owners of
the Certificates, the "Investors") have entered into a Purchase Agreement dated
as of May 10, 2001 pursuant to which the Pass Through Trustee will issue and
sell the Certificates to the Initial Purchasers (the net proceeds of such sale
being herein referred to as the "Net Proceeds");
WHEREAS, America West, the Pass Through Trustee, certain other pass
through trustees and certain other persons concurrently herewith are entering
into the Note Purchase Agreement, dated as of the date hereof (the "Note
Purchase Agreement"), pursuant to which the Pass Through Trustee has agreed to
acquire from time to time on or prior to the Delivery Period Termination Date
(as defined in the Note Purchase Agreement) equipment notes (the "Equipment
Notes") issued to finance or refinance the acquisition of aircraft by America
West, as lessee or as owner, utilizing a portion of the Net Proceeds;
WHEREAS, the Escrow Agent, the Initial Purchasers, the Pass Through
Trustee and Wilmington Trust Company, as paying agent for the Escrow Agent (in
such capacity, together with its successors in such capacity, the "Paying
Agent") concurrently herewith are entering into an Escrow and Paying Agent
Agreement, dated as of the date hereof (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the "Escrow and Paying
Agent Agreement"); and
WHEREAS, the Initial Purchasers and the Pass Through Trustee intend
that the Net Proceeds (excluding any amount used to purchase Equipment Notes on
the Issuance Date) be held in escrow by the Escrow Agent on behalf of the
Investors pursuant to the Escrow and Paying Agent Agreement, subject to
withdrawal upon request of and proper certification by the Pass Through Trustee
for the purpose of purchasing Equipment Notes, and that pending such
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withdrawal the Net Proceeds be deposited by the Escrow Agent with the Depositary
pursuant to this Agreement, which provides for the Depositary to pay interest
for distribution to the Investors and to establish accounts from which the
Escrow Agent shall make withdrawals upon request of and proper certification by
the Pass Through Trustee.
NOW, THEREFORE, in consideration of the obligations contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.1 Acceptance of Depositary. The Depositary hereby agrees to
act as depositary bank as provided herein and in connection therewith to accept
all amounts to be delivered to or held by the Depositary pursuant to the terms
of this Agreement. The Depositary further agrees to hold, maintain and safeguard
the Deposits and the Accounts (as defined below) during the term of this
Agreement in accordance with the provisions of this Agreement. The Depositary
shall neither be responsible for or under, nor chargeable with knowledge of, the
terms and conditions of any other agreement, instrument or document executed
between and among the parties hereto. This Agreement sets forth all of the
obligations of the Depositary, and no additional obligations shall be implied
from the terms of this Agreement or any other agreement, instrument or document.
The Escrow Agent shall not have any right to withdraw, assign or otherwise
transfer moneys held in the Accounts except as permitted by this Agreement.
SECTION 1.2 Establishment of Accounts. The Escrow Agent hereby
instructs the Depositary, and the Depositary agrees, to establish the separate
deposit accounts listed on Schedule I hereto and to establish such additional
separate deposit accounts as may be required in connection with the deposits
contemplated by Section 1.6 hereof (each, an "Account" and collectively, the
"Accounts"), each in the name of the Escrow Agent and all on the terms and
conditions set forth in this Agreement.
SECTION 1.3 Deposits. The Escrow Agent shall direct the Initial
Purchasers to deposit with the Depositary on the date of this Agreement (the
"Deposit Date") in Federal (same day) funds by wire transfer to the account of
Citibank, N.A. at Citibank, N.A. 000 Xxxx Xxxxxx, 14th Floor, Xxxx 0, Xxx Xxxx,
Xxx Xxxx 00000, ABA#000000000, Account No. 3611-4325, Attention: Citibank Agency
& Trust, Reference: America West Airlines 2001-1D, and the Depositary shall
accept from the Initial Purchasers, on behalf of the Escrow Agent, the sum of
US$45,000,000 (or such lesser amount equal to the Net Proceeds less amounts used
to purchase Equipment Notes on the Issuance Date). Upon acceptance of such sum,
the Depositary shall (i) establish each of the deposits specified in Schedule I
hereto maturing on December 26, 2002 (including any deposit made pursuant to
Section 1.6 hereof, individually, a "Deposit" and, collectively, the "Deposits")
and (ii) credit each Deposit to the related Account as set forth therein. No
amount shall be deposited in any Account other than the related Deposit.
SECTION 1.4 Interest. (a) Each Deposit shall bear interest from and
including the date of deposit to but excluding the date of withdrawal at the
rate of Six-Month LIBOR plus 3.20% per annum for each applicable interest period
(computed on the basis of a 360-day year and actual days elapsed) payable to the
Paying Agent on behalf of the Escrow Agent semi-annually in arrears on each
April 2 and October 2 commencing on October 2, 2001 (each, an "Interest Payment
Date") and, as provided in Section 1.5(b) hereof, on the date of the Final
Withdrawal (as defined below), all in accordance with the terms of this
Agreement (whether or not any such
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Deposit is withdrawn on an Interest Payment Date). Interest accrued on any
Deposit that is withdrawn pursuant to a Notice of Purchase Withdrawal (as
defined below) shall be paid on the next Interest Payment Date, notwithstanding
any intervening Final Withdrawal (as defined below). In addition, interest
accrued on any Deposit that is withdrawn pursuant to a Notice of Replacement
Withdrawal (as defined below) but not paid on the date of the Final Withdrawal
shall be paid on the next Interest Payment Date.
"LIBOR Business Day" means any day on which dealings are carried on in
the London interbank market.
"Regular Distribution Date" has the meaning specified in the Pass
Through Trust Agreement.
"Six-Month LIBOR" means, with respect to each interest period beginning
on and including a Regular Distribution Date (or the Issuance Date) and ending
on but excluding the next Regular Distribution Date, the interest rate per annum
(calculated on the basis of a 360-day year and actual days elapsed) at which
deposits in United States dollars are offered to prime banks in the London
interbank market as indicated on display page 3750 (British Bankers
Association-LIBOR) of the Dow Xxxxx Markets Service (or such other page as may
replace such display page 3750 for the purpose of displaying London interbank
offered rates for United States dollar deposits) or, if not so indicated, the
average (rounded upwards to the nearest 1/100%), as determined by the Escrow
Agent, of such rates as indicated on the Reuters Screen LIBO Page (or such other
page as may replace such Reuters Screen LIBO Page for the purpose of displaying
London interbank offered rates for United States dollar deposits) or, if neither
such alternative is indicated, the average (rounded upwards to the nearest
1/100%), as determined by the Escrow Agent, of such rates offered by four major
reference banks in the London interbank market, as selected by the Escrow Agent
after consultation with America West, to prime banks in the London interbank
market, in each case at or about 11:00 a.m. (London time) on the LIBOR Business
Day that is two LIBOR Business Days prior to the first day of such interest
period (the "Six-Month LIBOR Reference Date") for deposits for a period of six
months in an amount substantially equal to the principal amount then
outstanding. The Escrow Agent will, if necessary, request that each of the
reference banks provide a quotation of its rate. If at least two such quotations
are provided, the rate will be the average of the quotations (rounded to the
nearest 1/100%). If fewer than two quotations are provided, Six-Month LIBOR will
be determined for the applicable Six-Month LIBOR Reference Date as the
arithmetic mean of the rates quoted at approximately 11:00 a.m., New York time,
on that Six-Month LIBOR Reference Date, by three major banks in New York City,
as selected by the Escrow Agent after consultation with America West, for loans
in U.S. dollars to lending European banks, for a period of six months,
commencing on that Six-Month LIBOR Reference Date, and in a principal amount
that is representative of a single transaction in U.S. dollars in that market at
that time. If the banks so selected by the Escrow Agent are not quoting as
mentioned above, the rate will be Six-Month LIBOR for the immediately preceding
interest period.
(b) The parties hereto further acknowledge and agree that upon
any increase in the rate of interest on the Certificates (such increase referred
to as a "Rate Increase") pursuant to the terms of the Registration Rights
Agreement, the rate of interest borne by each Deposit in accordance with Section
1.4(a) above shall increase by the amount of such Rate Increase, and upon any
subsequent decrease in the rate of interest on the Equipment Notes (such
decrease
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referred to as a "Rate Decrease") pursuant to the terms of the Registration
Rights Agreement, the rate of interest borne by such Deposit shall decrease by
the amount of such Rate Decrease. For the purposes of this Section 1.4(b),
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement dated the date hereof among America West, the Pass Through Trustee,
certain other pass through trustees and the Initial Purchasers.
SECTION 1.5 Withdrawals. (a) On and after the date seven days after the
establishment of any Deposit, the Escrow Agent may, by providing a notice of
withdrawal to the Depositary by 10:00 a.m. (New York City time) on a Business
Day that is at least one Business Day prior to the date of such requested
withdrawal in the form of Exhibit A hereto (a "Notice of Purchase Withdrawal"),
withdraw not less than the entire principal balance of such Deposit as set forth
on Schedule I, except that at any time prior to the actual withdrawal of such
Deposit, the Escrow Agent or the Pass Through Trustee may, by notice to the
Depositary, cancel such withdrawal (including on the scheduled date therefor),
and thereafter such Deposit shall continue to be maintained by the Depositary in
accordance with the original terms thereof. Following such withdrawal the
balance in the related Account shall be zero and the Depositary shall, subject
to the Depositary's payment obligation pursuant to the penultimate sentence of
Section 1.4(a) hereof, close such Account. As used herein, "Business Day" means
any day, other than a Saturday, Sunday or other day on which commercial banks
are authorized or required by law to close in New York, New York, Phoenix,
Arizona or Wilmington, Delaware. The Depositary reserves the right, upon at
least 14 days' prior written notice to America West, the Escrow Agent and the
Pass Through Trustee, to require seven days' notice for any withdrawal.
(b) (i) The Escrow Agent may, subject to Section 1.02(d) of
the Escrow and Paying Agent Agreement, by providing at least 15 days' prior
notice of withdrawal to the Depositary in the form of Exhibit B hereto (a
"Notice of Final Withdrawal"), withdraw the entire amount of all of the
remaining Deposits together with the payment by the Depositary of all accrued
and unpaid interest on such Deposits to but excluding the specified date of
withdrawal (a "Final Withdrawal"), on such date as shall be specified in such
Notice of Final Withdrawal. If a Notice of Final Withdrawal has not been given
to the Depositary on or before December 5, 2002 and there are unwithdrawn
Deposits on such date, the Depositary shall pay the amount of the Final
Withdrawal to the Paying Agent on December 26, 2002.
(ii) The Escrow Agent may, by providing at least 15 days'
prior notice of withdrawal to the Depositary in the form of Exhibit C hereto (a
"Notice of Replacement Withdrawal"), withdraw the entire amount of all Deposits
then held by the Depositary together with, if specified in such Notice of
Replacement Withdrawal, the payment by the Depositary of all accrued and unpaid
interest on such Deposits to but excluding the specified date of withdrawal (a
"Replacement Withdrawal"), on such date as shall be specified in such Notice of
Replacement Withdrawal.
(c) If the Depositary receives a duly completed Notice of
Purchase Withdrawal or Notice of Final Withdrawal or Notice of Replacement
Withdrawal (each, a "Withdrawal Notice") complying with the provisions of this
Agreement, it shall make the payments specified therein in accordance with the
provisions of this Agreement.
If such complying Withdrawal Notice is received by the
Depositary no later than 11:00 a.m. (New York City time) on a Business Day, the
Depositary shall make the payments
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requested in such Withdrawal Notice no later than 11:00 a.m. (New York City
time) on the next succeeding Business Day or such later day specified in such
Withdrawal Notice, and if such complying Withdrawal Notice is received by the
Depositary after 11:00 a.m. (New York City time) on a Business Day, the
Depositary shall make the payments requested in such Withdrawal Notice no later
than 11:00 a.m. (New York City time) on the second Business Day next following
such Business Day.
SECTION 1.6 Other Accounts. On the date of withdrawal of any Deposit
pursuant to a Notice of Purchase Withdrawal, the Escrow Agent, or the Pass
Through Trustee on behalf of the Escrow Agent, shall be entitled to re-deposit
with the Depositary any portion thereof and the Depositary shall accept the same
for deposit hereunder; provided the Depositary receives a written request from
the Escrow Agent or the Pass Through Trustee on behalf of the Escrow Agent. On
the Issuance Date, the Escrow Agent, or the Pass Through Trustee, on behalf of
the Escrow Agent, shall be entitled to deposit with the Depositary any portion
of the Net Proceeds not theretofore deposited hereunder and not used to purchase
Equipment Notes on such date and the Depositary shall accept the same for
deposit hereunder; provided the Depositary receives a written request from the
Escrow Agent or the Pass Through Trustee on behalf of the Escrow Agent. Any sums
so received for deposit shall be established as a new Deposit and credited to a
new Account, all as more fully provided in Section 1.3 hereof, and thereafter
the provisions of this Agreement shall apply thereto as fully and with the same
force and effect as if such Deposit had been established on the Deposit Date
except that (i) such Deposit may not be withdrawn prior to the date seven days
after the establishment thereof and (ii) such Deposit shall mature on December
26, 2002 and bear interest as provided in Section 1.4. The Depositary shall
promptly give notice to the Escrow Agent of receipt of each such re-deposit and
the account number assigned thereto.
SECTION 2. Termination. This Agreement shall terminate on the fifth
Business Day after the later of the date on which (i) all of the Deposits shall
have been withdrawn and paid as provided herein without any re-deposit of such
funds and (ii) all accrued and unpaid interest on the Deposits shall have been
paid as provided herein, but in no event prior to the date on which the
Depositary shall have performed in full its obligations hereunder. For the
avoidance of doubt, the obligations of the Depositary under the last two
sentences of Section 1.4(a) hereof shall remain in full force and effect
notwithstanding the execution and delivery of a replacement Deposit Agreement in
accordance with Section 4(a)(vii) of the Note Purchase Agreement.
SECTION 3. Payments. All payments (including, without limitation, those
payments made in respect of Taxes (as defined and provided for below)) made by
the Depositary hereunder shall be paid in United States Dollars and immediately
available funds by wire transfer (i) in the case of accrued interest on the
Deposits payable under Section 1.4 hereof or any Final Withdrawal, directly to
the Paying Agent at Wilmington Trust Company, Wilmington, Delaware, ABA#
000000000, for credit to the account of America West 2001-1, Account No.
55175-0, Attention: Xxxxx XxXxxx, Telephone No. (000) 000-0000, Reference:
America West 2001-1D, or to such other account as the Paying Agent may direct
from time to time in writing to the Depositary and the Escrow Agent and (ii) in
the case of any withdrawal of one or more Deposits pursuant to a Notice of
Purchase Withdrawal or Notice of Replacement Withdrawal, directly to or as
directed by the Pass Through Trustee as specified and in the manner provided in
such Notice of Purchase Withdrawal or Notice of Replacement Withdrawal. The
Depositary hereby waives any and all rights of set-off, combination of accounts,
right of retention or similar right
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(whether arising under applicable law, contract or otherwise) it may have
against the Deposits howsoever arising. All payments on or in respect of each
Deposit shall be made free and clear of and without reduction for or on account
of any and all taxes, levies or other impositions or charges (collectively,
"Taxes"). However, if the Depositary or the Paying Agent (pursuant to Section
2.04 of the Escrow and Paying Agent Agreement) shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder,
the Depositary shall (i) make such deductions or withholding and (ii) pay the
full amount deducted or withheld (including in respect of such additional
amounts) to the competent taxation authority. If the date on which any payment
due on any Deposit would otherwise fall on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day, and no
additional interest shall accrue in respect of such extension.
SECTION 4. Representation and Warranties. The Depositary hereby
represents and warrants to America West, the Escrow Agent, the Pass Through
Trustee, the Initial Purchasers and the Paying Agent that:
(1) it is a national banking association duly organized and
existing under the laws of the United States;
(2) it has full power, authority and legal right to conduct
its business and operations as currently conducted and to enter into and perform
its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of it
and do not require any stockholder approval, or approval or consent of any
trustee or holder of any indebtedness or obligations of it, and this Agreement
has been duly executed and delivered by it and constitutes its legal, valid and
binding obligations enforceable against it in accordance with the terms hereof;
(4) no authorization, consent or approval of or other action
by, and no notice to or filing with, any United States federal or state
governmental authority or regulatory body is required for the execution,
delivery or performance by it of this Agreement;
(5) neither the execution, delivery or performance by it of
this Agreement, nor compliance with the terms and provisions hereof, (A)
conflicts or will conflict with or results or will result in a breach or
violation of any of the terms, conditions or provisions of, or will require any
consent or approval under, any law, governmental rule or regulation or the
charter documents, as amended, or bylaws, as amended, of it or any similar
instrument binding on it or any order, writ, injunction or decree of any court
or governmental authority against it or by which it or any of its properties is
bound or (B) results or will result in a material breach or material violation
of any of the terms, conditions or provisions of any indenture, mortgage or
contract or other agreement or instrument to which it is a party or by which it
or any of its properties is bound, or constitutes or will constitute a material
default thereunder or results or will result in the imposition of any lien upon
any of its properties; and
(6) there are no pending or, to its knowledge, threatened
actions, suits, investigations or proceedings (whether or not purportedly on
behalf of it) against or affecting it or any of its property before or by any
court or administrative agency which, if adversely
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determined, (i) would adversely affect the ability of it to perform its
obligations under this Agreement or (ii) would call into question or challenge
the validity of this Agreement or the enforceability hereof in accordance with
the terms hereof, nor is the Depositary in default with respect to any order of
any court, governmental authority, arbitration board or administrative agency so
as to adversely affect its ability to perform its obligations under this
Agreement.
SECTION 5. Transfer. Neither party hereto shall be entitled to assign
or otherwise transfer this Agreement (or any interest herein) other than (in the
case of the Escrow Agent) to a successor escrow agent under the Escrow and
Paying Agent Agreement, and any purported assignment in violation thereof shall
be void. This Agreement shall be binding upon the parties hereto and their
respective successors and (in the case of the Escrow Agent) permitted assigns.
Upon the occurrence of the Transfer (as defined below) contemplated by the
Assignment and Assumption Agreement (as defined below), the Pass Through Trustee
shall (without further act) be deemed to have transferred all of its right,
title and interest in and to this Agreement to the trustee of the Successor
Trust (as defined below) and, thereafter, the trustee of the Successor Trust
shall be deemed to be the "Pass Through Trustee" hereunder with the rights of
the "Pass Through Trustee" hereunder, and each reference herein to "America West
Airlines Pass Through Trust 2001-1D-O" shall be deemed to be a reference to
"America West Airlines Pass Through Trust 2001-1D-S". The Escrow Agent and the
Depositary hereby acknowledge and consent to the Transfer contemplated by the
Assignment and Assumption Agreement. For the purposes of this Section 6,
"Transfer" means the transfer contemplated by the Assignment and Assumption
Agreement; "Assignment and Assumption Agreement" means the Assignment and
Assumption Agreement to be entered into between the Pass Through Trustee and the
trustee of the Successor Trust, substantially in the form of Exhibit D to the
Pass Through Trust Agreement; and "Successor Trust" means the America West
Airlines Pass Through Trust 2001-1D-S.
SECTION 6. Amendment, Etc. This Agreement may not be amended, waived or
otherwise modified except by an instrument in writing signed by the parties
hereto.
SECTION 7. Notices.
(a) Unless otherwise expressly provided herein, any notice, instruction
or other communication under this Agreement shall be in writing (including by
facsimile) and shall be deemed to be given and effective upon receipt thereof
(or, if received after normal business hours, the next open of business on a
Business Day). All notices shall be sent to (x) in the case of the Depositary,
Citibank, N.A. 000 Xxxx Xxxxxx, 14th Floor, Xxxx 0, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Citibank Agency & Trust (Telecopier: (000) 000-0000) or (y) in the
case of the Escrow Agent, Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration
(Telecopier: (000) 000-0000), in each case, with a copy to the Pass Through
Trustee, Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration (Telecopier: (302)
651-8882) and to America West, America West Airlines, Inc., 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Senior Vice President-Legal
Affairs (Telecopier: (000) 000-0000) (or at such other address as any such party
may specify from time to time in a written notice to the parties hereto). On or
prior to the execution of this Agreement, the Escrow Agent has delivered to the
Depositary an incumbency certificate containing specimen signatures of the
representatives of the Escrow Agent who are authorized to give notices and
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instructions with respect to this Agreement. The Depositary may conclusively
rely on such certificate until the Depositary receives written notice from the
Escrow Agent to the contrary.
(b) The Depositary shall be fully protected and authorized in relying
upon any instruction, notice, certification, demand, consent, authorization,
receipt, power of attorney or other writing delivered to it by any party without
being required to make any investigation or inquiry thereof to determine the
authenticity or validity thereof or the correctness of any fact stated therein,
the propriety or validity of the service thereof, or the jurisdiction of the
court issuing any judgment or order. The Depositary may act in reliance upon any
signature believed by it to be genuine, and may assume that such person has been
properly authorized to do so. The Depositary shall not be deemed to have any
duty or notice unless and until it has been provided with written notice.
SECTION 8. Obligations Unconditional. The Depositary hereby
acknowledges and agrees that its obligation to repay each Deposit together with
interest thereon as provided herein is absolute, irrevocable and unconditional
and constitutes a full recourse obligation of the Depositary enforceable against
it to the full extent of all of its assets and properties.
Anything to the contrary notwithstanding, the Depositary may consult
with legal counsel of its selection in the event of any dispute, or question as
to the meaning or construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and shall be fully authorized and
protected in acting in accordance with the opinion and instructions of such
counsel.
SECTION 9. Funds Transfers. In the event funds transfer instructions
are given (other than in writing at the time of execution of this Agreement),
whether in writing, by telecopier or otherwise, the Depositary is authorized to
seek confirmation of such instructions by telephone call back to the person or
persons designated, and the Depositary may rely upon the confirmations of anyone
purporting to be the person or persons so designated. To assure accuracy of the
instructions its receives, the Depositary may record such telephone call backs.
If the Depositary is unable to confirm any instructions, or if not satisfied
with the confirmation it receives, it will not execute the instruction until all
issues have been resolved. The person and telephone numbers for call backs may
be changed only in writing actually received and acknowledged by the Depositary.
The Depositary shall receive notification of any errors, delays or other
problems within thirty (30) days after a transaction has been executed.
SECTION 10. Entire Agreement. This Agreement (including all attachments
hereto) sets forth all of the promises, covenants, agreements, conditions and
understandings between the Depositary and the Escrow Agent with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and undertakings, inducements or conditions, express or implied, oral or
written.
SECTION 11. Governing Law. This Agreement, and the rights and
obligations of the Depositary and the Escrow Agent with respect to the Deposits,
shall be governed by, and construed in accordance with, the law of the State of
New York.
SECTION 12. Waiver of Jury Trial Right. EACH OF THE DEPOSITARY AND THE
ESCROW AGENT ACKNOWLEDGES AND ACCEPTS THAT IN ANY SUIT, ACTION
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OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SUCH PARTY
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
* * *
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IN WITNESS WHEREOF, the Escrow Agent and the Depositary have
caused this Deposit Agreement to be duly executed as of the day and year first
above written.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By: /s/ W. Xxxxx Xxxxxxxxxx
-------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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Schedule I
Schedule of Deposits
(Class D)
Tail Number Deposit Amount Account No.
----------- -------------- -----------
N825AW $3,220,400 103904
N826AW $3,220,400 103905
N827AW $3,220,400 103906
N828AW $3,220,400 103907
N829AW $3,157,400 103908
N830AW $3,157,400 103909
N831AW $3,094,400 103910
N832AW $2,899,100 103911
N664AW $4,364,800 103912
N665AW $4,295,500 103913
N667AW $4,030,900 103914
N668AW $2,515,000 103915
N669AW $1,257,500 103916
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EXHIBIT A
NOTICE OF PURCHASE WITHDRAWAL
Citibank, N.A.
000 Xxxx Xxxxxx, 14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Citibank Agency & Trust
(Telecopier: (000) 000-0000)
Gentlemen:
Reference is made to the Deposit Agreement (Class D) dated as of May
17, 2001 (the "Deposit Agreement") between Wilmington Trust Company, as Escrow
Agent, and Citibank, N.A., as Depositary (the "Depositary").
In accordance with Section 1.5(a) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of the Deposit,
$_______, Account No. ____________.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposit to [________________, Account No. _____, Reference: _________] on
__________, 200_, upon the telephonic request of a representative of Wilmington
Trust Company, the Pass Through Trustee.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_______________________
Name:
Title:
Dated: __________, 200_
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EXHIBIT B
NOTICE OF FINAL WITHDRAWAL
Citibank, N.A.
000 Xxxx Xxxxxx, 14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Citibank Agency & Trust
(Telecopier: (000) 000-0000)
Gentlemen:
Reference is made to the Deposit Agreement (Class D) dated as of May
17, 2001 (the "Deposit Agreement") between Wilmington Trust Company, as Escrow
Agent, and Citibank, N.A., as Depositary (the "Depositary").
In accordance with Section 1.5(b) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on __________, 200_.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits [and accrued interest thereon] to the Paying Agent at
__________________________, ABA# _____________, Account No. _____________,
Reference: America West 2001-1.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_______________________
Name:
Title:
Dated: __________, 20__
15
EXHIBIT C
NOTICE OF REPLACEMENT WITHDRAWAL
Citibank, N.A.
000 Xxxx Xxxxxx, 14th Floor, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Citibank Agency & Trust
(Telecopier: (000) 000-0000)
Gentlemen:
Reference is made to the Deposit Agreement (Class D) dated as of May
17, 2001 (the "Deposit Agreement") between Wilmington Trust Company, as Escrow
Agent, and Citibank, N.A., as Depositary (the "Depositary").
In accordance with Section 1.5(b)(ii) of the Deposit Agreement, the
undersigned hereby requests the withdrawal of the entire amount of all Deposits
for payment on __________, 20__.
The undersigned hereby directs the Depositary to pay the proceeds of
the Deposits to [________________] at __________________________, ABA#
_____________, Account No. _____________, Reference: America West 2001-1 [and to
pay accrued interest thereon to the Paying Agent at ___________, ABA
#___________, Acct. No. ___________, Reference: America West ___ 2001-1]1. [The
undersigned further directs the Depositary to pay the accrued interest on the
Deposits to the Paying Agent on _______, __ (the next Interest Payment Date) at
ABA # ___________, Account No. __________, Reference: America West 2001-1.]2
WILMINGTON TRUST COMPANY,
as Escrow Agent
By:_______________________
Name:
Title:
Dated: __________, 20__
--------
1 To be deleted in the case of a Replacement Withdrawal scheduled for a date
which is not an Interest Payment Date (as defined in the Escrow and Paying Agent
Agreement).
2 To be inserted only in the case of a Replacement Withdrawal scheduled for a
date which is not an Interest Payment Date (as defined in the Escrow and Paying
Agent Agreement).
