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EXHIBIT 4.19
ESCROW AND PAYING AGENT AGREEMENT
(Class D)
Dated as of May 17, 2001
among
WILMINGTON TRUST COMPANY
as Escrow Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
MIZUHO INTERNATIONAL PLC
BANC ONE CAPITAL MARKETS, INC.
and
TOKYO-MITSUBISHI INTERNATIONAL PLC
as Initial Purchasers
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Pass Through Trustee
for and on behalf of
America West Airlines Pass Through Trust 2001-1D-O
as Pass Through Trustee
and
WILMINGTON TRUST COMPANY
as Paying Agent
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TABLE OF CONTENTS
Page
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SECTION 1. Escrow Agent............................................ 2
Section 1.01. Appointment of Escrow Agent............................. 2
Section 1.02. Instruction; Etc........................................ 3
Section 1.03. Initial Escrow Amount; Issuance of Escrow Receipts...... 4
Section 1.04. Payments to Receiptholders.............................. 4
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow Receipt..... 4
Section 1.06. Additional Escrow Amounts............................... 5
Section 1.07. Resignation or Removal of Escrow Agent.................. 5
Section 1.08. Persons Deemed Owners................................... 6
Section 1.09. Further Assurances...................................... 6
SECTION 2. Paying Agent............................................ 6
Section 2.01. Appointment of Paying Agent............................. 6
Section 2.02. Establishment of Paying Agent Account................... 6
Section 2.03. Payments from Paying Agent Account...................... 7
Section 2.04. Withholding Taxes....................................... 7
Section 2.05. Resignation or Removal of Paying Agent.................. 8
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Page
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Section 2.06. Notice of Final Withdrawal.............................. 8
SECTION 3. Payments................................................ 9
SECTION 4. Other Actions........................................... 9
SECTION 5. Representations and Warranties of the Escrow Agent...... 9
SECTION 6. Representations and Warranties of the Paying Agent...... 10
SECTION 7. Indemnification......................................... 11
SECTION 8. Amendment, Etc.......................................... 12
SECTION 9. Notices................................................. 12
SECTION 10. Transfer................................................ 13
SECTION 11. Entire Agreement........................................ 13
SECTION 12. Governing Law........................................... 13
SECTION 13. Waiver of Jury Trial Right.............................. 13
SECTION 14. Counterparts............................................ 13
Exhibit A Escrow Receipt
Exhibit B Withdrawal Certificate
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ESCROW AND PAYING AGENT AGREEMENT (Class D) dated as of May
17, 2001 (as amended, modified or supplemented from time to time, this
"Agreement") among WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Escrow Agent (in such capacity, together with its successors in such capacity,
the "Escrow Agent"); ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
MIZUHO INTERNATIONAL PLC, BANC ONE CAPITAL MARKETS, INC. and TOKYO-MITSUBISHI
INTERNATIONAL PLC, as Initial Purchasers of the Certificates referred to below
(the "Initial Purchasers" and together with their respective transferees and
assigns as registered owners of the Certificates, the "Investors") under the
Purchase Agreement referred to below; Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity except as otherwise
expressly provided herein, but solely as trustee (in such capacity, together
with its successors in such capacity, the "Pass Through Trustee") under the Pass
Through Trust Agreement referred to below; and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as paying agent hereunder (in such capacity,
together with its successors in such capacity, the "Paying Agent").
W I T N E S S E T H
WHEREAS, America West Airlines, Inc. ("America West") and the
Pass Through Trustee have entered into a Pass Through Trust Agreement, dated as
of May 17, 2001 (together, 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 (the "Pass
Through Trust") pursuant to which the America West Airlines Pass Through Trust,
Series 2001-1D-O Certificates referred to therein (the "Certificates") are being
issued;
WHEREAS, America West and the Initial Purchasers have entered
into a Purchase Agreement dated as of May 10, 2001 (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the
"Purchase Agreement") 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 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, subject to withdrawal upon request by the Pass Through Trustee
and satisfaction of the conditions set forth in the Note Purchase Agreement for
the purpose of purchasing Equipment Notes, and that pending such withdrawal the
Net Proceeds be deposited on behalf of the Escrow Agent with Citibank, N.A., a
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national banking association, as Depositary (the "Depositary" which shall also
be deemed to refer to any Replacement Depositary (as defined in the Note
Purchase Agreement) from and after the date on which the Deposits are
transferred to such Replacement Depositary) under the Deposit Agreement, dated
as of the date hereof between the Depositary and the Escrow Agent relating to
the Pass Through Trust (as amended, modified, supplemented or replaced from time
to time in accordance with the terms thereof, the "Deposit Agreement" which
shall also be deemed to refer to any Replacement Deposit Agreement (as defined
in the Note Purchase Agreement) to which the Escrow Agent becomes a party
pursuant to Section 1.02(a) hereof from and after the transfer of the Deposits
from the Depositary to the Replacement Depositary) pursuant to which, among
other things, the Depositary will pay interest for distribution to the Investors
and establish accounts from which the Escrow Agent shall make withdrawals upon
request of and proper certification by the Pass Through Trustee;
WHEREAS, the Escrow Agent wishes to appoint the Paying Agent
to pay amounts required to be distributed to the Investors in accordance with
this Agreement; and
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Pass Through Trust Agreement.
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. Escrow Agent.
Section 1.01. Appointment of Escrow Agent. Each of the Initial
Purchasers, for and on behalf of each of the Investors, hereby irrevocably
appoints, authorizes and directs the Escrow Agent to act as escrow agent and
fiduciary hereunder and under the Deposit Agreement for such specific purposes
and with such powers as are specifically delegated to the Escrow Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Escrow Agent
under this Agreement or the Deposit Agreement shall be held in escrow by the
Escrow Agent in accordance with the terms of this Agreement. This Agreement is
irrevocable and the Investors' rights with respect to any monies received and
held in escrow by the Escrow Agent under this Agreement or the Deposit Agreement
shall only be as provided under the terms and conditions of this Agreement and
the Deposit Agreement. The Escrow Agent (which term as used in this sentence
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement; (b) shall
not be responsible to the Pass Through Trustee or the Investors for any
recitals, statements, representations or warranties of any person other then
itself contained in this Agreement or the Deposit Agreement or for the failure
by the Pass Through Trustee, the Investors or any other person or entity (other
than the Escrow Agent) to perform any of its obligations hereunder (whether or
not the Escrow Agent shall have any knowledge thereof); and (c) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
provided for herein or in connection herewith, except for its own willful
misconduct or gross
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negligence (or simple negligence in connection with the handling of funds) or
breach of its obligations hereunder.
Section 1.02. Instruction; Etc. The Initial Purchasers, for
and on behalf of each of the Investors, hereby irrevocably instruct the Escrow
Agent, and the Escrow Agent agrees, (a) to enter into the Deposit Agreement and,
if requested by the Company pursuant to Section 4(a)(vii) of the Note Purchase
Agreement, to enter into a Replacement Deposit Agreement with the Replacement
Depositary specified by the Company, (b) to appoint the Paying Agent as provided
in this Agreement, (c) upon receipt at any time and from time to time prior to
the Termination Date (as defined below) of a certificate substantially in the
form of Exhibit B hereto (a "Withdrawal Certificate") executed by the Pass
Through Trustee, together with an attached Notice of Purchase Withdrawal in
substantially the form of Exhibit A to the Deposit Agreement duly completed by
the Pass Through Trustee (the "Applicable Notice of Purchase Withdrawal" and the
withdrawal to which it relates, a "Purchase Withdrawal"), immediately to execute
the Applicable Notice of Purchase Withdrawal as Escrow Agent and transmit it to
the Depositary by facsimile transmission in accordance with the Deposit
Agreement; provided that, upon the request of the Pass Through Trustee after
such transmission, the Escrow Agent shall cancel such Applicable Notice of
Purchase Withdrawal, (d) upon receipt of a Withdrawal Certificate executed by
the Pass Through Trustee, together with an attached Notice of Replacement
Withdrawal in substantially the form of Exhibit C to the Deposit Agreement duly
completed by the Pass Through Trustee, to (X) give such Notice of Replacement
Withdrawal to the Depositary requesting a withdrawal, on the date specified in
such notice, which shall not be less than 15 days after such notice is given
(the "Replacement Withdrawal Date"), of all Deposits then held by the Depositary
together with, if the Replacement Withdrawal Date occurs on a Regular
Distribution Date, all accrued and unpaid interest on such Deposits to but
excluding the Replacement Withdrawal Date, and (Y) direct the Depositary to
transfer such Deposits on behalf of the Escrow Agent to the Replacement
Depositary in accordance with the Replacement Deposit Agreement, and (e) if
there are any undrawn Deposits (as defined in the Deposit Agreement) on the
"Termination Date", which shall mean the earlier of (i) November 30, 2002 and
(ii) the day on which the Escrow Agent receives notice from the Pass Through
Trustee that the Pass Through Trustee's obligation to purchase Equipment Notes
under the Note Purchase Agreement has terminated, to give notice to the
Depositary (with a copy to the Paying Agent) substantially in the form of
Exhibit B to the Deposit Agreement requesting a withdrawal of all of the
remaining Deposits, together with accrued and unpaid interest on such Deposits
to the date of withdrawal, on the 35th day after the date that such notice of
withdrawal is given to the Depositary (or, if not a Business Day, on the next
succeeding Business Day) (a "Final Withdrawal"), provided that if the day
scheduled for the Final Withdrawal in accordance with the foregoing is within 10
days before or after a Regular Distribution Date, then the Escrow Agent shall
request that such requested Final Withdrawal be made on such Regular
Distribution Date (the date of such requested withdrawal, the "Final Withdrawal
Date"). If for any reason the Escrow Agent shall have failed to give the Final
Withdrawal Notice to the Depositary on or before December 5, 2002, and there are
unwithdrawn Deposits on such date, the Final Withdrawal Date shall be deemed to
be December 26, 2002.
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Section 1.03. Initial Escrow Amount; Issuance of Escrow
Receipts. The Escrow Agent hereby directs the Initial Purchasers to, and the
Initial Purchasers hereby acknowledge that on the date hereof they shall,
irrevocably deliver to the Depositary on behalf of the Escrow Agent, an amount
in U.S. dollars ("Dollars") and immediately available funds equal to $45,000,000
(or such lesser amount equal to the Net Proceeds less amounts used to purchase
Equipment Notes on the Issuance Date), for deposit on behalf of the Escrow Agent
with the Depositary in accordance with Section 2.1 of the Deposit Agreement. The
Initial Purchasers hereby instruct the Escrow Agent, upon receipt of such sum
from the Initial Purchasers, to confirm such receipt by executing and delivering
to the Pass Through Trustee an Escrow Receipt in the form of Exhibit A hereto
(an "Escrow Receipt"), (a) to be affixed by the Pass Through Trustee to each
Certificate and (b) to evidence the same percentage interest (the "Escrow
Interest") in the Account Amounts (as defined below) as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which it is
to be affixed. The Escrow Agent shall provide to the Pass Through Trustee for
attachment to each Certificate newly issued under and in accordance with the
Pass Through Trust Agreement an executed Escrow Receipt as the Pass Through
Trustee may from time to time request of the Escrow Agent. Each Escrow Receipt
shall be registered by the Escrow Agent in a register (the "Register")
maintained by the Escrow Agent in the same name and same manner as the
Certificate to which it is attached and may not thereafter be detached from such
Certificate to which it is to be affixed prior to the distribution of the Final
Withdrawal (the "Final Distribution"). After the Final Distribution, no
additional Escrow Receipts shall be issued and the Pass Through Trustee shall
request the return to the Escrow Agent for cancellation of all outstanding
Escrow Receipts.
Section 1.04. Payments to Receiptholders; Notice to
Depositary. All payments and distributions made to holders of an Escrow Receipt
(collectively "Receiptholders") in respect of the Escrow Receipt shall be made
only from amounts deposited in the Paying Agent Account (as defined below)
("Account Amounts"). Each Receiptholder, by its acceptance of an Escrow Receipt,
agrees that (a) it will look solely to the Account Amounts for any payment or
distribution due to such Receiptholder pursuant to the terms of the Escrow
Receipt and this Agreement and (b) it will have no recourse to America West, the
Pass Through Trustee, the Paying Agent, the Escrow Agent or Wilmington Trust
Company, except as expressly provided herein or in the Pass Through Trust
Agreement. No Receiptholder shall have any right to vote or in any manner
otherwise control the operation and management of the Paying Agent Account or
the obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Escrow Receipt, be construed so as to constitute
the Receiptholders from time to time as partners or members of an association.
No later than four Business Days prior to each Regular
Distribution Date, the Escrow Agent shall provide a notice to the Depositary
specifying the amount of interest due on the Deposits on such Regular
Distribution Date.
Section 1.05. Mutilated, Destroyed, Lost or Stolen Escrow
Receipt. If (a) any mutilated Escrow Receipt is surrendered to the Escrow Agent
or the Escrow Agent receives evidence to its satisfaction of the destruction,
loss or theft of any Escrow Receipt and (b) there is delivered to the Escrow
Agent and the Pass Through Trustee such security, indemnity or bond,
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as may be required by them to hold each of them harmless, then, absent notice to
the Escrow Agent or the Pass Through Trustee that such destroyed, lost or stolen
Escrow Receipt has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the Uniform Commercial Code in effect in any
applicable jurisdiction are met, the Escrow Agent shall execute, authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Escrow Receipt, a new Escrow Receipt or Escrow Receipts and of like
Escrow Interest in the Account Amounts and bearing a number not
contemporaneously outstanding.
In connection with the issuance of any new Escrow Receipt
under this Section 1.05, the Escrow Agent may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Pass Through Trustee and the Escrow Agent) connected therewith.
Any duplicate Escrow Receipt issued pursuant to this Section
1.05 shall constitute conclusive evidence of the appropriate Escrow Interest in
the Account Amounts, as if originally issued, whether or not the lost, stolen or
destroyed Escrow Receipt shall be found at any time.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Escrow
Receipts.
Section 1.06. Additional Escrow Amounts. On the date of any
Purchase Withdrawal, the Pass Through Trustee may re-deposit with the Depositary
some or all of the amounts so withdrawn in accordance with Section 1.6 of the
Deposit Agreement.
Section 1.07. Resignation or Removal of Escrow Agent. Subject
to the appointment and acceptance of a successor Escrow Agent as provided below,
the Escrow Agent may resign at any time by giving 30 days' prior written notice
thereof to the Investors, but may not otherwise be removed except for cause by
the written consent of the Investors with respect to Investors representing
Escrow Interests aggregating not less than a majority in interest in the Account
Amounts (an "Action of Investors"). Upon any such resignation or removal, the
Investors, by an Action of Investors, shall have the right to appoint a
successor Escrow Agent. If no successor Escrow Agent shall have been so
appointed and shall have accepted such appointment within 30 days after the
retiring Escrow Agent's giving of notice of resignation or the removal of the
retiring Escrow Agent, then the retiring Escrow Agent may appoint a successor
Escrow Agent. Any successor Escrow Agent shall be a bank which has an office in
the United States with a combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Escrow Agent hereunder by a successor
Escrow Agent, such successor Escrow Agent shall enter into such documents as the
Pass Through Trustee shall require and shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations hereunder. No resignation or removal of the Escrow Agent shall be
effective unless a written confirmation shall have been obtained from each of
▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇
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Companies, Inc., that the replacement of the Escrow Agent with the successor
Escrow Agent will not result in (a) a reduction of the rating for the
Certificates below the then current rating for the Certificates or (b) a
withdrawal or suspension of the rating of the Certificates.
Section 1.08. Persons Deemed Owners. Prior to due presentment
of a Certificate for registration of transfer, the Escrow Agent and the Paying
Agent may treat the Person in whose name any Escrow Receipt is registered (as of
the day of determination) as the owner of such Escrow Receipt for the purpose of
receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and neither the Escrow Agent nor the Paying Agent shall be affected
by any notice to the contrary.
Section 1.09. Further Assurances. The Escrow Agent agrees to
take such actions, and execute such other documents, as may be reasonably
requested by the Pass Through Trustee in order to effectuate the purposes of
this Agreement and the performance by the Escrow Agent of its obligations
hereunder.
SECTION 2. Paying Agent.
Section 2.01. Appointment of Paying Agent. The Escrow Agent
hereby irrevocably appoints and authorizes the Paying Agent to act as its paying
agent hereunder, for the benefit of the Investors, for such specific purposes
and with such powers as are specifically delegated to the Paying Agent by the
terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Any and all money received and held by the Paying Agent
under this Agreement or the Deposit Agreement shall be held in the Paying Agent
Account for the benefit of the Investors. The Paying Agent (which term as used
in this sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents): (a) shall have no duties
or responsibilities except those expressly set forth in this Agreement, and
shall not by reason of this Agreement be a trustee for the Escrow Agent; (b)
shall not be responsible to the Escrow Agent for any recitals, statements,
representations or warranties of any person other then itself contained in this
Agreement or for the failure by the Escrow Agent or any other person or entity
(other than the Paying Agent) to perform any of its obligations hereunder
(whether or not the Paying Agent shall have any knowledge thereof); and (c)
except in respect of its express obligations hereunder, shall not be responsible
for any action taken or omitted to be taken by it hereunder or provided for
herein or in connection herewith, except for its own willful misconduct or gross
negligence (or simple negligence in connection with the handling of funds).
Section 2.02. Establishment of Paying Agent Account. The
Paying Agent shall establish a deposit account (the "Paying Agent Account") at
Wilmington Trust Company in the name of the Escrow Agent. It is expressly
understood by the parties hereto that the Paying Agent is acting as the paying
agent of the Escrow Agent hereunder and that no amounts on deposit in the Paying
Agent Account constitute part of the Trust Property.
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Section 2.03. Payments from Paying Agent Account. The Escrow
Agent hereby irrevocably instructs the Paying Agent, and the Paying Agent agrees
to act, as follows:
(a) On each Interest Payment Date (as defined in the
Deposit Agreement) or as soon thereafter as the Paying Agent has
confirmed receipt in the Paying Agent Account from the Depositary of
any amount in respect of accrued interest on the Deposits, the Paying
Agent shall distribute out of the Paying Agent Account the entire
amount deposited therein by the Depositary. There shall be so
distributed to each Receiptholder of record on the 15th day (whether or
not a Business Day) preceding such Interest Payment Date by check
mailed to such Receiptholder, at the address appearing in the Register,
such Receiptholder's pro rata share (based on the Escrow Interest in
the Account Amounts held by such Receiptholder) of the total amount of
interest deposited by the Depositary in the Paying Agent Account on
such date, except that, with respect to Escrow Receipts registered on
the Record Date in the name of DTC, such distribution shall be made by
wire transfer in immediately available funds to the account designated
by DTC.
(b) Upon the confirmation by the Paying Agent of receipt
in the Paying Agent Account from the Depositary of any amount in
respect of the Final Withdrawal, the Paying Agent shall forthwith
distribute the entire amount of the Final Withdrawal deposited therein
by the Depositary. There shall be so distributed to each Receiptholder
of record on the 15th day (whether or not a Business Day) preceding the
Final Withdrawal Date by check mailed to such Receiptholder, at the
address appearing in the Register, such Receiptholder's pro rata share
(based on the Escrow Interest in the Account Amounts held by such
Receiptholder) of the total amount in the Paying Agent Account on
account of such Final Withdrawal, except that, with respect to Escrow
Receipts registered on the Record Date in the name of DTC, such
distribution shall be made by wire transfer in immediately available
funds to the account designated by DTC.
(c) If any payment of interest or principal in respect of
the Final Withdrawal is not received by the Paying Agent within five
days of the applicable date when due, then it shall be distributed to
Receiptholders after actual receipt by the Paying Agent on the same
basis as a Special Payment is distributed under the Pass Through Trust
Agreement.
(d) The Paying Agent shall include with any check mailed
pursuant to this Section any notice required to be distributed under
the Pass Through Trust Agreement that is furnished to the Paying Agent
by the Pass Through Trustee.
Section 2.04. Withholding Taxes. The Paying Agent shall
exclude and withhold from each distribution of accrued interest on the Deposits
(as defined in the Deposit Agreement) and any amount in respect of the Final
Withdrawal any and all withholding taxes applicable thereto as required by law.
The Paying Agent agrees to act as such withholding agent and, in connection
therewith, whenever any present or future taxes or similar charges are required
to be withheld with respect to any amounts payable in respect of the Deposits
(as defined in the
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Deposit Agreement) or the escrow amounts, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Receiptholders, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each such Receiptholder appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Receiptholder may reasonably request from time to time. The Paying Agent
agrees to file any other information reports as it may be required to file under
United States law.
Section 2.05. Resignation or Removal of Paying Agent. Subject
to the appointment and acceptance of a successor Paying Agent as provided below,
the Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to the Escrow Agent, but may not otherwise be removed except for cause
by the Escrow Agent. Upon any such resignation or removal, the Escrow Agent
shall have the right to appoint a successor Paying Agent. If no successor Paying
Agent shall have been so appointed and shall have accepted such appointment
within 30 days after the retiring Paying Agent's giving of notice of resignation
or the removal of the retiring Paying Agent, then the retiring Paying Agent may
appoint a successor Paying Agent. Any Successor Paying Agent shall be a bank
which has an office in the United States with a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Paying Agent
hereunder by a successor Paying Agent, such successor Paying Agent shall enter
into such documents as the Escrow Agent shall require and shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Paying Agent, and the retiring Paying Agent shall be discharged
from its duties and obligations hereunder.
Section 2.06. Notice of Final Withdrawal. Promptly after
receipt by the Paying Agent of notice that the Escrow Agent has requested a
Final Withdrawal or that a Final Withdrawal will be made, the Paying Agent shall
cause notice of the distribution of such Final Withdrawal to be mailed to each
of the Receiptholders at its address as it appears in the Register. Such notice
shall be mailed not less than 20 days prior to the Final Withdrawal Date. Such
notice shall set forth:
(i) the Final Withdrawal Date and the date for
determining Receiptholders of record who shall be entitled to receive
distributions in respect of such Final Withdrawal,
(ii) the amount of the payment in respect of such Final
Withdrawal for each $1,000 face amount Certificate (based on
information provided by the Pass Through Trustee) and the amount
thereof constituting unused Deposits (as defined in the Deposit
Agreement) and interest thereon, and
(iii) if the Final Withdrawal Date is the same date as a
Regular Distribution Date, the total amount to be received on such date
for each $1,000 face amount Certificate (based on information provided
by the Pass Through Trustee).
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Such mailing may include any notice required to be given to
Certificateholders in connection with such distribution pursuant to the Pass
Through Trust Agreement.
SECTION 3. Payments. If, notwithstanding the instructions in
Section 3 of the Deposit Agreement that all amounts payable to the Escrow Agent
under the Deposit Agreement be paid by the Depositary directly to the Paying
Agent or the Pass Through Trustee or a Replacement Depositary (depending on the
circumstances), the Escrow Agent receives any payment thereunder, then the
Escrow Agent shall forthwith pay such amount in Dollars and in immediately
available funds by wire transfer to (a) in the case of a payment of accrued
interest on the Deposits (as defined in the Deposit Agreement) or any Final
Withdrawal, directly to the Paying Agent Account and (b) in the case of any
Purchase Withdrawal, directly to the Pass Through Trustee or its designee as
specified and in the manner provided in the Applicable Notice of Purchase
Withdrawal and (c) in the case of any Replacement Withdrawal (other than accrued
interest), to the Replacement Depositary as provided in the Replacement
Depositary Agreement. The Escrow Agent hereby waives any and all rights of
set-off, combination of accounts, right of retention or similar right (whether
arising under applicable law, contract or otherwise) it may have against amounts
payable to the Paying Agent howsoever arising.
SECTION 4. Other Actions. The Escrow Agent shall take such
other actions under or in respect of the Deposit Agreement (including, without
limitation, the enforcement of the obligations of the Depositary thereunder) as
the Investors, by an Action of Investors, may from time to time request.
SECTION 5. Representations and Warranties of the Escrow Agent.
The Escrow Agent represents and warrants to America West, the Investors, the
Paying Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware;
(ii) 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, the Deposit
Agreement and any Replacement Deposit Agreement;
(iii) the execution, delivery and performance of each of
this Agreement, the Deposit Agreement and any Replacement Deposit
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 each such document 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
or thereof except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws or
equitable principles of general application to or affecting the
enforcement of creditors' rights generally
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(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) 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 or the
Deposit Agreement or any Replacement Deposit Agreement;
(v) neither the execution, delivery or performance by it
of this Agreement or the Deposit Agreement or any Replacement Deposit
Agreement, nor compliance with the terms and provisions hereof or
thereof, 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 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 default thereunder or results or
will result in the imposition of any lien upon any of its properties;
and
(vi) 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 determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or the Deposit Agreement
or any Replacement Deposit Agreement (B) would call into question or
challenge the validity of this Agreement or the Deposit Agreement or
the enforceability hereof or thereof in accordance with the terms
hereof or thereof, nor is the Escrow Agent 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 or the Deposit Agreement.
SECTION 6. Representations and Warranties of the Paying Agent.
The Paying Agent represents and warrants to America West, the Investors, the
Escrow Agent and the Pass Through Trustee as follows:
(i) it is a banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware;
(ii) 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;
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(iii) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action on
the part of it and does not require any stockholder approval, or
approval or consent of any trustee or holder of any indebtedness or
obligations of it, and such document 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
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws or equitable
principles of general application to or affecting the enforcement of
creditors' rights generally (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iv) 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;
(v) neither the execution, delivery or performance by it
of this Agreement, nor compliance with the terms and provisions hereof,
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 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 default thereunder or results or will result in
the imposition of any lien upon any of its properties; and
(vi) 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 determined, (A) would adversely affect the ability of it to
perform its obligations under this Agreement or (B) would call into
question or challenge the validity of this Agreement or the
enforceability hereof in accordance with the terms hereof, nor is the
Paying Agent 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 7. Indemnification. Except for actions expressly
required of the Escrow Agent or the Paying Agent hereunder, each of the Escrow
Agent and the Paying Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have been indemnified (both in such
capacities and individually) by the party requesting such action in a manner
reasonably satisfactory to it against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
In the event America
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West requests any amendment to any Operative Agreement (as defined in the Note
Purchase Agreement), the Pass Through Trustee agrees to pay all reasonable fees
and expenses (including, without limitation, fees and disbursements of counsel)
of the Escrow Agent and the Paying Agent in connection therewith.
SECTION 8. Amendment, Etc. Upon request of the Pass Through
Trustee and approval by an Action of Investors, the Escrow Agent shall enter
into an amendment to this Agreement, so long as such amendment does not
adversely affect the rights or obligations of the Escrow Agent or the Paying
Agent, provided that upon request of the Pass Through Trustee and without any
consent of the Investors, the Escrow Agent shall enter into an amendment to this
Agreement for any of the following purposes:
(1) to correct or supplement any provision in this
Agreement which may be defective or inconsistent with any other
provision herein or to cure any ambiguity or correct any mistake or to
modify any other provision with respect to matters or questions arising
under this Agreement, provided that any such action shall not
materially adversely affect the interests of the Investors; or
(2) to comply with any requirement of the SEC, applicable
law, rules or regulations of any exchange or quotation system on which
the Certificates are listed or any regulatory body or the Registration
Rights Agreement to effectuate the Exchange Offer; or
(3) to evidence and provide for the acceptance of
appointment under this Agreement of a successor Escrow Agent, successor
Paying Agent or successor Pass Through Trustee.
SECTION 9. Notices. Unless otherwise expressly provided
herein, any notice 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 outside of business hours, on the next
open of business on a Business Day). All notices shall be sent to (a) in the
case of the Investors, as their respective addresses shall appear in the
Register, (b) in the case of the Escrow Agent, Wilmington Trust Company, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), (c) in the case of the Pass Through
Trustee, Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (Telecopier:
302-651-8882), or (d) in the case of the Paying Agent, Wilmington Trust Company,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration (Telecopier: 302-651-8882), in each case with a copy to America
West, America West Airlines, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President - Treasurer (Telecopier: (480)
693-5886) (or at such other address as any such party may specify from time to
time in a written notice to the other parties). On or prior to the execution of
this Agreement, the Pass Through Trustee has delivered to the Escrow Agent a
certificate containing specimen signatures of the representatives of the Pass
Through Trustee who are authorized to give notices and instructions with respect
to this Agreement. The Escrow Agent may conclusively rely on
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such certificate until the Escrow Agent receives written notice from the Pass
Through Trustee to the contrary.
SECTION 10. Transfer. No 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 Section 1.06
hereof or (in the case of the Paying Agent) to a successor paying agent under
Section 2.04 hereof, 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 and the Paying Agent)
their respective 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 and obligations 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 parties hereto hereby acknowledge
and consent to the Transfer contemplated by the Assignment and Assumption
Agreement. As used herein, "Transfer" means the transfers of the assets to the
Successor Trust 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; "Successor Trust" means the America West Airlines Pass Through
Trust 2001-1D-S.
SECTION 11. Entire Agreement. This Agreement sets forth all of
the promises, covenants, agreements, conditions and understandings among the
Escrow Agent, the Paying Agent, the Initial Purchasers and the Pass Through
Trustee 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 12. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New York.
SECTION 13. Waiver of Jury Trial Right. EACH OF THE ESCROW
AGENT, THE PAYING AGENT, THE INVESTORS AND THE PASS THROUGH TRUSTEE ACKNOWLEDGES
AND ACCEPTS THAT IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT SUCH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
SECTION 14. 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, the Paying Agent, the
Initial Purchasers and the Pass Through Trustee have caused this Escrow and
Paying Agent Agreement (Class D) to be duly executed as of the day and year
first above written.
WILMINGTON TRUST COMPANY,
as Escrow Agent
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
MIZUHO INTERNATIONAL PLC,
BANC ONE CAPITAL MARKETS, INC. and
TOKYO-MITSUBISHI INTERNATIONAL PLC
as Initial Purchasers
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bliemel
Title: Vice President
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Pass
Through Trustee for and on behalf of America
West Airlines Pass Through Trust
2001-1D-O
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
WILMINGTON TRUST COMPANY,
as Paying Agent
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT A
AMERICA WEST AIRLINES 2001-1D ESCROW RECEIPT
No.___
This Escrow Receipt evidences a fractional undivided interest
in amounts ("Account Amounts") from time to time deposited into a certain paying
agent account (the "Paying Agent Account") described in the Escrow and Paying
Agent Agreement (Class D) dated as of May 17, 2001 (as amended, modified or
supplemented from time to time, the "Escrow and Paying Agent Agreement") among
Wilmington Trust Company, as Escrow Agent (in such capacity, together with its
successors in such capacity, the "Escrow Agent"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
Deutsche Banc Alex. ▇▇▇▇▇ Inc., Mizuho International plc, Banc One Capital
Markets, Inc. and Tokyo-Mitsubishi International plc, as Initial Purchasers,
Wilmington Trust Company, as Pass Through Trustee (in such capacity, together
with its successors in such capacity, the "Pass Through Trustee") and Wilmington
Trust Company, as paying agent (in such capacity, together with its successors
in such capacity, the "Paying Agent"). Capitalized terms not defined herein
shall have the meanings assigned to them in the Escrow and Paying Agent
Agreement.
This Escrow Receipt is issued under and is subject to the
terms, provisions and conditions of the Escrow and Paying Agent Agreement. By
virtue of its acceptance hereof the holder of this Escrow Receipt assents and
agrees to be bound by the provisions of the Escrow and Paying Agent Agreement
and this Escrow Receipt.
This Escrow Receipt represents a fractional undivided interest
in amounts deposited from time to time in the Paying Agent Account, and grants
or represents no rights, benefits or interests of any kind in respect of any
assets or property other than such amounts. This Escrow Receipt evidences the
same percentage interest in the Account Amounts as the Fractional Undivided
Interest in the Pass Through Trust evidenced by the Certificate to which this
Escrow Receipt is affixed.
All payments and distributions made to Receiptholders in
respect of the Escrow Receipt shall be made only from Account Amounts deposited
in the Paying Agent Account. The holder of this Escrow Receipt, by its
acceptance of this Escrow Receipt, agrees that it will look solely to the
Account Amounts for any payment or distribution due to it pursuant to this
Escrow Receipt and that it will not have any recourse to America West, the Pass
Through Trustee, the Paying Agent or the Escrow Agent, except as expressly
provided herein or in the Pass Through Trust Agreement. No Receiptholder of this
Escrow Receipt shall have any right to vote or in any manner otherwise control
the operation and management of the Paying Agent Account, nor shall anything set
forth herein, or contained in the terms of this Escrow Receipt, be construed so
as to constitute the Receiptholders from time to time as partners or members of
an association.
This Escrow Receipt may not be assigned or transferred except
in connection with the assignment or transfer of the Certificate to which this
Escrow Receipt is affixed. After payment to the holder hereof of its Escrow
Interest in the Final Distribution, upon the request of
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the Pass Through Trustee, the holder hereof will return this Escrow Receipt to
the Pass Through Trustee.
The Paying Agent may treat the person in whose name the
Certificate to which this Escrow Receipt is attached as the owner hereof for all
purposes, and the Paying Agent shall not be affected by any notice to the
contrary.
THIS ESCROW RECEIPT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Escrow Agent has caused this Escrow
Receipt to be duly executed.
Dated: ______________, 2001
WILMINGTON TRUST COMPANY,
as Escrow Agent
By ______________________________
Name:
Title:
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EXHIBIT B
WITHDRAWAL CERTIFICATE
(Class D)
WILMINGTON TRUST COMPANY,
as Escrow Agent
Dear Sirs:
Reference is made to the Escrow and Paying Agent Agreement,
dated as of May 17, 2001 (the "Agreement"). [We hereby certify to you that the
conditions to the obligations of the undersigned to execute a Participation
Agreement pursuant to the Note Purchase Agreement have been satisfied] [We
hereby notify you that the Depositary is being replaced in accordance with
Section 4(a)(vii) of the Note Purchase Agreement]. Pursuant to Section 1.02(c)
of the Agreement, please execute the attached Notice of Withdrawal and
immediately transmit by facsimile to the Depositary, at (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Global Agency & Trust.
Very truly yours,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Pass Through Trustee
By ________________________________
Name:
Title:
Dated: ____________, 200_
