exv10w113



 






EXHIBIT 10.113




MERCHANT SERVICES BANKCARD AGREEMENT




	 	 	 	 	 	 	 	 	 
	 	 	AMERICA WEST AIRLINES
	AMERICA WEST AIRLINES, INC.	 	AMERICA WEST VACATIONS
	THE LEISURE COMPANY	 	THE LEISURE COMPANY
	 
	Customer’s Legal Name

	 	Doing Business As	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	4000 EAST SKY HARBOR BOULEVARD

	 	PHOENIX
	 	AZ
	 	 	85034	 
	 
	Street Address

	 	City
	 	State
	 	Zip Code

	 
	 	 	 	 	 	 	 	 
	CORPORATION

	 	[Redacted]	 	 	 	 	 	 
	 
	Specify Whether Customer is a Corporation, Partnership,
Sole Proprietorship, Non-Profit or Other Type of Entity	 	Federal Taxpayer Identification Number
	 
	 	 	 	 	 	 	 	 
	VICE PRESIDENT AND CONTROLLER

	 	[Redacted]	 	 	 	 	 	 
	WITH COPY TO VICE PRESIDENT AND GENERAL COUNSEL

	 	[Redacted]	 	 	 	 	 	 
	 
	Recipient For Notices Under Paragraph 24.5	 	Facsimile Number





This Merchant Services Bankcard Agreement (“Agreement”) is among the AMERICA WEST AIRLINES, INC.
(“AWA”), THE LEISURE COMPANY (“TLC”), JP MORGAN CHASE BANK (“BANK”) and CHASE MERCHANT SERVICES
L.L.C. (“CMS”). AWA and TLC are collectively referred to herein as “CUSTOMER” and shall be jointly
and severally liable for CUSTOMER’s obligations set forth in this Agreement. BANK and CMS are
collectively referred to as “SERVICERS”.



BANK, as a member of Visa U.S.A., Inc. (“VISA”) and MasterCard International Incorporated
(“MasterCard”), is responsible for its VISA and MasterCard bankcard programs and has authorized CMS
or its members pursuant to a separate agreement (the “Agency Agreement”) to act as its agent and in
conjunction with BANK in performing authorization, processing and settlement services for merchants
participating in BANK’s MasterCard and VISA bankcard programs, in performing the additional
services with respect to other cards as specified on the schedules to this Agreement and in taking
related actions. CMS is acting in such capacity by executing and performing this Agreement. As
between themselves, the respective rights and obligations of CMS and BANK shall be governed by
their Agency Agreement and the Association Rules.



In consideration of the mutual covenants and agreements set forth herein and other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged, SERVICERS and CUSTOMER
agree as follows:





	1.	 	Definitions. As used in this Agreement, capitalized terms will have the meaning set forth in
Annex 1.
	 
	2.	 	Services.






	 	2.1	 	During the term of the Agreement CUSTOMER shall use SERVICERS as its exclusive
provider of all Services for CUSTOMER, provided however, that CUSTOMER shall not be
required to obtain Services from SERVICERS with respect to sales initiated on-board
aircraft.
	 
	 	2.2	 	Subject to Association Rules, during the term of this Agreement the Services shall be
performed by either CMS or BANK. CMS and BANK will determine, in their sole discretion,
which of them will perform any given obligation of SERVICERS hereunder.
	 
	 	2.3	 	The Services furnished under this Agreement shall be provided for all Card
transactions effected directly by CUSTOMER and for all Card transactions effected on
CUSTOMER’s behalf by Travel Agencies. CUSTOMER shall use reasonable, good faith efforts
to cause all Travel Agencies to comply with all of the terms, conditions and obligations
applicable to Card transactions effected on behalf of CUSTOMER as fully as if effected
directly by CUSTOMER, and CUSTOMER shall be responsible for any failure to so comply by
any Travel Agency. Without limiting the foregoing, SERVICERS may refuse to process any
Card transaction effected on CUSTOMER’s behalf by a Travel Agency which fails to comply
with all material terms and provisions of this Agreement, in the same manner as though the
Travel Agency was CUSTOMER. All references in this Agreement to CUSTOMER shall be
construed to give effect to the provisions of this Section 2.3.
	 
	 	2.4	 	During the Term of this Agreement, CMS will (a) provide CUSTOMER with a toll-free
number for customer support that is available 24 hours a day, 365 days a year to address
point-of-sale issues; and (b) make available to CUSTOMER a customer service representative
whose responsibility shall be to (i) assist CUSTOMER in connection with the Services or
any issues that may arise in connection with this Agreement, and (ii) assist CUSTOMER as
reasonably requested by CUSTOMER in connection with issues that may arise in connection
with the Association or the Association Rules.
	 
	 	2.5	 	The parties agree to make commercially reasonable efforts to facilitate CUSTOMER’s
implementation onto SERVICERS’ system and to work together in good faith towards the goal
of completing such implementation by May 1, 2003. During CUSTOMER’s implementation,
SERVICERS and CUSTOMER will each assign a project manager to handle issues that arise with
respect to implementation to SERVICERS’ system. The project managers shall have periodic
discussions relative to the progress of CUSTOMER’s implementation.






	3.	 	Acceptance of Cards.





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	 	3.1	 	CUSTOMER will accept any Card properly tendered as payment for goods or services,
without imposing any special conditions not required or allowed by Association Rules.
CUSTOMER will assess no special charge or extract any special agreement, condition
(including any minimum or maximum transaction amounts) or security from a Cardholder in
connection with any Card transaction. CUSTOMER shall not post signs indicating that
CUSTOMER will refuse to honor Card transactions below or above a specified amount.
CUSTOMER shall not engage in acceptance practices or procedures that discriminate against
or discourage the offered use of any particular Card accepted by CUSTOMER except for
special promotions offered in conjunction with an Association, provided such promotion
does not otherwise violate any other Association’s rules.
	 
	 	3.2	 	If the Cardholder is present at the point-of-sale, CUSTOMER will examine each Card
used during a transaction for validity in accordance with the terms of this Agreement, the
Operating Guide and the applicable Association Rules. If the Cardholder is not present at
the point-of-sale, CUSTOMER shall be responsible for identifying the Cardholder. CUSTOMER
shall not accept a Card after the Card’s expiration date. CUSTOMER shall not accept a
Card prior to the Card’s embossed “valid from” date, if any.
	 
	 	3.3	 	All Transaction Records and Credit Vouchers shall include (i) the transaction date;
(ii) a brief description of the goods or services sold, returned or cancelled; (iii) the
price of the goods or services, including applicable taxes, or amount of any credit or
adjustment; (iv) the Cardholder name; (v) CUSTOMER’s name in a manner recognizable to
Cardholders; (vi) CUSTOMER’s address; (vii) a customer service telephone number; (viii)
any applicable terms and conditions of the sale; (ix) exact date any free trials end and
(x) any other information which the applicable Association may require.
	 
	 	3.4	 	CUSTOMER shall not submit any Card transactions for processing: (i) if the amount
charged is subject to any dispute, setoff or counterclaim; (ii) which represents the
refinancing of an existing obligation that has been deemed uncollectible; (iii) which
represents the collection of a dishonored check; (iv) which is specifically related to
amounts wagered in connection with a gambling activity; or (v) if the Card transaction was
not entered into in accordance with the terms of this Agreement, Association Rules and the
Operating Guide.






	4.	 	Operating Guide; Association Rules.
	 
	 	 	CUSTOMER acknowledges that it has received the Operating Guide, the terms of which are
incorporated into this Agreement. CUSTOMER shall follow the procedures in the Operating Guide
in connection with each Card transaction and comply with all applicable Association Rules.
From time to time, SERVICERS may change the Operating Guide, in whole or in part, and other
operating procedures, by providing CUSTOMER with at least 30 days’ prior written notice of the
change. However, in the event of changes in the Association Rules or for security reasons,
certain changes in procedures may become effective on shorter notice. If there is any conflict
between the terms of this Agreement and the Operating Guide, the terms of this Agreement will
govern.
	 
	5.	 	Authorization.






	 	5.1	 	CUSTOMER shall obtain Authorization in advance for each Card transaction, with the
exception of transactions that take place on board aircraft provided CUSTOMER is not
required to obtain an Authorization pursuant to Association Rules because the transaction
amount is less than any applicable Association floor limit, or otherwise. The
Authorization number provided by SERVICERS shall be recorded in the appropriate place on
the Transaction Record. If Authorization is declined, CUSTOMER shall not complete the
Card transaction. For the sake of clarity, in any circumstance where CUSTOMER does not
obtain an Authorization in advance for a Card transaction all risks resulting from not
obtaining Authorization shall be borne by CUSTOMER.
	 
	 	5.2	 	CUSTOMER acknowledges that Authorization, (i) indicates only the availability of
credit at the time of Authorization; (ii) does not warrant that the person presenting the
Card is the rightful Cardholder; and (iii) is not an unconditional promise or guarantee by
SERVICERS that any Card transaction will not be subject to Chargeback.






	6.	 	Internet, Telephone and Mail Orders.






	 	6.1	 	CUSTOMER is hereby authorized to accept telephone, mail and Internet orders. In
addition to the requirements of Section 3.1 hereof, authorization for each such Card
transaction, regardless of the face amount, must be obtained. CUSTOMER assumes all
responsibility for identification of the Cardholder and the validity of the Card
information for telephone, mail and Internet orders. For telephone and mail order Card
transactions where tickets are to be shipped or delivered to or for the Cardholder, the
shipping date shall not be more than five calendar days after the Authorization is
obtained (unless the Authorization was obtained in connection with a Cardholder deposit in
advance of payment in full for the product or service to be provided by CUSTOMER or the
delivery pertains to travel documents related to the sale of a vacation package where
CUSTOMER’s standard procedure is to deliver such documents at a subsequent date in advance
of the Cardholder’s anticipated travel date). Under no circumstances may CUSTOMER require
that a Cardholder complete a postcard or other document which displays the Cardholder’s
account data in plain view when mailed. CUSTOMER acknowledges that CUSTOMER’s
authorization to accept internet orders is subject to changes in Association Rules,
following the Effective Date of this Agreement, that may prohibit or restrict such
transactions, and CUSTOMER agrees to comply with all Association Rules that become
applicable to such transactions.






	7.	 	[INTENTIONALLY OMITTED]
	 
	8.	 	Preauthorized Orders and Recurring Sales.
	 
	 	 	CUSTOMER may accept Preauthorized Orders or Recurring Sales in accordance with all related
requirements of SERVICERS and the Association Rules.





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	9.	 	Cardholder Refunds and Credits.






	 	9.1	 	If a Cardholder returns goods or cancels services purchased from CUSTOMER with a
Card, or CUSTOMER allows any other price adjustment after a sale has been completed and a
refund or adjustment is due to the Cardholder, CUSTOMER may not return cash to the
Cardholder but will instead prepare a Credit Voucher and process each such refund or
adjustment, as specified in the Operating Guide and Association Rules. CUSTOMER will give
the Cardholder a copy of the completed Credit Voucher. If a Cardholder returns refundable
tickets purchased from CUSTOMER with a Card, or CUSTOMER allows any other price adjustment
after a sale has been completed and a refund or adjustment is due to the Cardholder (other
than any involuntary refund required by applicable airline or other tariff or by law),
CUSTOMER will not return cash to the Cardholder but will instead prepare a Credit Voucher
and process each such refund or adjustment as specified in the Operating Guide and
Association Rules. However, if the account/Card used by the Cardholder to complete the
transaction has been closed or cancelled between the time of purchase and the time of the
refund request, CUSTOMER retains the right to return cash to its customer.
	 
	 	9.2	 	If CUSTOMER establishes a policy limiting refunds or acceptance of returned goods or
tickets (e.g., non-refundable or special conditions), CUSTOMER must adequately disclose
such policy to Cardholders in accordance with Association Rules.
	 
	 	9.3	 	CUSTOMER shall not accept money from a Cardholder for the purpose of preparing and
depositing a Credit Voucher that will effect a deposit to the Cardholder’s account.
CUSTOMER shall not process a Credit Voucher without having completed a previous offsetting
Card transaction with the same Cardholder. CUSTOMER shall not require a Cardholder to
waive the Cardholder’s right to dispute a Card transaction with the Card issuing bank.
	 
	 	9.4	 	CUSTOMER is responsible for funding all Credit Vouchers submitted by CUSTOMER to
SERVICERS. CUSTOMER shall be responsible for maintaining adequate security with respect
to any credit card terminals, computer equipment or other equipment utilized to submit
Credit Vouchers and shall be responsible for the actions of all of CUSTOMER’s employees,
agents or other persons who access such equipment. SERVICERS undertake no responsibility
to CUSTOMER to monitor or review Credit Vouchers submitted via CUSTOMER’s account.






	10.	 	Presentment of Card Transactions.






	 	10.1	 	CUSTOMER shall electronically deliver to SERVICERS Transaction Records for all Card
transactions to be processed and settled hereunder. All Transaction Records must be
submitted within applicable Association time frames (including any time frames required
for CUSTOMER to qualify for the interchange rate specified in Schedule A). Any
Transaction Records which are submitted after the time frames required for the Card
transaction to qualify for best available interchange rate, beyond those which are
consistent with CUSTOMER’s ordinary practice prior to the execution of this Agreement and
the test files provided by CUSTOMER to SERVICERS which were representative of CUSTOMER’s
past practice, shall not be included in any calculation related to SERVICERS’ performance
related to the interchange qualification of CUSTOMER’s Card transactions.
	 
	 	10.2	 	If CUSTOMER utilizes a third party to transmit Transaction Records to SERVICERS, then
CUSTOMER is responsible to assure that such third party properly transmits such
Transaction Records according to current technical specifications established by
SERVICERS.






	11.	 	Settlement of Card Transactions.






	 	11.1	 	SERVICERS will only be required to settle CUSTOMER’s Card transactions for Cards
specified in the Schedules. SERVICERS will initiate a transfer of the applicable
settlement funds to CUSTOMER by wire transfer (or other agreed upon method) after
presentment of Transaction Records (by electronic delivery, pursuant to Section 10) of
such applicable settlement funds to the Settlement Account in accordance with this Section
11.1. Upon proper presentment of a Transaction Record or Credit Voucher, SERVICERS agree
to process and enter into the MasterCard and VISA settlement networks, as appropriate, all
Transaction Records and Credit Vouchers that have been generated in accordance with the
terms of this Agreement. Transaction Records and Credit Vouchers presented for processing
and settlement that are successfully transmitted to SERVICERS at or before
[Redacted]on any day shall be deemed to have been received by SERVICERS on that
day. Transaction Records and Credit Vouchers presented for processing and settlement that
are successfully transmitted to SERVICERS after [Redacted]on any day shall be
deemed to have been received by SERVICERS on the next succeeding day. After presentment
and processing of Transaction Records and Credit Vouchers as set forth herein, SERVICERS
will credit to CUSTOMER’S account, in the manner set forth in this Section 11.2, an amount
(the “Settlement Amount”) equal to the total amount of all Transaction Records less (i)
the total net amount of all Credit Vouchers and Chargebacks, and (ii) any fees or other
amounts payable by CUSTOMER hereunder. SERVICERS will initiate a transfer of the
applicable Settlement Amount to CUSTOMER on the next Business Day after the Transaction
Records or Credit Vouchers were successfully transmitted to SERVICERS by wire transfer.
Settlement by wire transfer is generally initiated by[Redacted]. If SERVICERS
fail to initiate a transfer of applicable settlement funds which have been received by
SERVICERS from the applicable Association to CUSTOMER on the [Redacted]after the
Transaction Records or Credit Vouchers were successfully received by SERVICERS on or
before[Redacted], and such failure or delay is not caused by third parties (other
than third parties directly controlled by SERVICERS), then unless such monies are being
withheld in accordance
with any other provision of this Agreement, SERVICERS shall pay CUSTOMER interest on such
funds at the then current Federal Funds rate as established by the Federal Reserve (as
published in the Wall Street Journal) until SERVICERS do initiate such transfer.
	 
	 	11.2	 	All settlements to CUSTOMER for VISA and MasterCard Card transactions will be based
upon gross sales, less Credit Vouchers, adjustments, applicable discount fees when due,
Chargebacks, and any other amounts then due hereunder from CUSTOMER to SERVICERS.
	 
	 	11.3	 	[INTENTIONALLY OMITTED]
	 
	 	11.4	 	All credits to CUSTOMER’s Settlement Account or other payments to CUSTOMER are
provisional and are subject to, among other things, SERVICERS’ final audit, Chargebacks,
fees and fines imposed by the Associations. If any deficiencies, overages, fees or
pending Chargebacks should exist, SERVICERS will notify CUSTOMER of such amounts due and
may deduct such amounts from settlement funds due to CUSTOMER. Should settlement funds
due to CUSTOMER be insufficient to cover aforementioned amounts due, SERVICERS will
provide CUSTOMER with written notice outlining, in reasonable detail, amounts due which
have not been paid. CUSTOMER agrees to provide SERVICERS with payment of these amounts
via bank wire within 24 hours of notification from SERVICERS.





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	 	11.5	 	SERVICERS will not be liable for any delays in receipt of funds or errors in debit
and credit entries caused by third parties (other than third parties directly controlled
by SERVICERS) including but not limited to, any Association or CUSTOMER’s financial
institution. In addition to any other remedies available to SERVICERS under this
Agreement, CUSTOMER agrees that should any of the events set forth in Section 19.3 occur
and fail to be cured within any applicable cure period, SERVICERS may, upon at least
[Redacted]advance written notice, change processing or payment terms to suspend
credits or other payments of any and all funds, money and amounts now due or hereafter to
become due to CUSTOMER from SERVICERS pursuant to the terms of this Agreement, until
SERVICERS have had reasonable opportunity to investigate and discuss such event with
CUSTOMER. In cases of fraud or similar cause, no prior notice shall be required, but
SERVICERS shall notify CUSTOMER in writing within three business days after effectuating a
suspension of credits or other payments, which notice shall state SERVICERS’ reason for
the belief that such fraud or similar cause exists. In the instance of fraud, SERVICERS
shall only suspend funding to the extent deemed appropriate by SERVICERS to properly
address concerns related to the potential fraud.






	12.	 	Fees; Adjustments; Collection of Amounts Due.






	 	12.1	 	SERVICERS shall charge CUSTOMER a fee for the Services, which shall be in the amounts
and calculated pursuant to the Schedules and any additional pricing supplements agreed
upon by the parties. Any fees expressed as a percentage of CUSTOMER’s Card transactions
shall be calculated based on the gross amount of such transactions.
	 
	 	12.2	 	[INTENTIONALLY OMITTED]
	 
	 	12.3	 	The fees for Services may be adjusted to reflect increases by Associations in
interchange, assessments or other Association fees or to pass through increases charged by
third parties for on-line communications and similar items. SERVICERS shall notify
CUSTOMER of all such adjustments. All such adjustments shall be CUSTOMER’s responsibility
to pay and shall become effective upon the date any such change is implemented by the
applicable Association or other third party.
	 
	 	12.4	 	In addition to the regular Chargeback fees set forth on the Schedules, CUSTOMER
agrees to pay SERVICERS any fines imposed on SERVICERS by any Association, resulting from
Chargebacks and any other fees or fines imposed by an Association with respect to acts or
omissions of CUSTOMER.
	 
	 	12.5	 	If CUSTOMER’s Chargeback Percentage for any line of business exceeds an Association’s
industry chargeback percentage, CUSTOMER shall be responsible for any applicable
Chargeback handling fees or fines imposed by the applicable Association. Each industry
chargeback percentage is subject to change from time to time by the Associations.
	 
	 	12.6	 	If CUSTOMER believes any adjustments should be made with respect to CUSTOMER’s
Settlement Account for any amounts due to or due from SERVICERS, CUSTOMER must notify
SERVICERS in writing within [Redacted]after any debit or credit is or should have
been effected. If CUSTOMER notifies SERVICERS after such time period, SERVICERS may, in
their discretion, assist CUSTOMER, at CUSTOMER’s expense, in investigating whether any
adjustments are appropriate and whether any amounts are due to or from other parties, but
SERVICERS shall not have any obligation to investigate or effect any such adjustments.






	13.	 	Chargebacks.
	 
	 	 	CUSTOMER shall be responsible for all Chargeback and associated amounts relating to Card
transactions settled by SERVICERS when
	 
	 	 	Associations Rules provide for a Chargeback.
	 
	14.	 	Additional Covenants; Limitations on Liability; Exclusion of Consequential Damages;
Representations and Warranties.






	 	14.1	 	Without limiting any other warranties hereunder, CUSTOMER covenants and agrees as to
each Card transaction submitted by CUSTOMER under this Agreement that:






	 	(i)	 	the Card transaction represents a bona fide sale/rental of merchandise or
services not previously submitted;
	 
	 	(ii)	 	the Card transaction represents an obligation of the Cardholder for the
amount of the Card transaction;
	 
	 	(iii)	 	any Credit Voucher submitted to SERVICERS represents a refund or
adjustment to a Card transaction previously submitted; and
	 
	 	(iv)	 	the Card transaction submitted to SERVICERS was entered into by CUSTOMER and the
Cardholder.






	 	14.2	 	THIS AGREEMENT IS A SERVICE AGREEMENT, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, SERVICERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
MADE TO CUSTOMER OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES
OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
	 
	 	14.3	 	NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER
PARTY, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT
LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS
OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
	 
	 	14.4	 	NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SERVICERS’ CUMULATIVE
LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES FOR ANY CAUSE
WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS
AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL NOT
EXCEED[Redacted]PROVIDED HOWEVER, THAT THIS PROVISION SHALL NOT SERVE TO LIMIT
SERVICERS’





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	 	 	 	OBLIGATIONS WITH RESPECT TO THE PAYMENT OR CREDITING TO CUSTOMER OF SETTLEMENT
MONIES RECEIVED BY SERVICERS FROM CARD ASSOCIATIONS RELATED TO CUSTOMER’S CARD
TRANSACTIONS WHICH ARE PAYABLE TO CUSTOMER OR SERVICERS’ OBLIGATION TO RETURN ANY AMOUNTS
PROVIDED BY CUSTOMER TO FUND A RESERVE ACCOUNT UPON THE SATISFACTION OF ALL OF CUSTOMER’S
OBLIGATIONS.
	 
	 	14.5	 	CUSTOMER represents and warrants the following:






	 	(i)	 	it has full authority and corporate power to enter into this Agreement and to
perform its obligations hereunder;
	 
	 	(ii)	 	this Agreement represents a valid obligation of CUSTOMER and is fully enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally; and
	 
	 	(iii)	 	it will comply with applicable Association Rules and all applicable laws,
rules, advances and regulations of any governmental agency in the performance of its
obligations under this Agreement.






	 	14.6	 	[Redacted]and [Redacted]represent and warrant the following:






	 	(i)	 	[Redacted]is a member of [Redacted]and[Redacted];
	 
	 	(ii)	 	[Redacted]have full authority and corporate power to enter into this
Agreement and to perform
[Redacted]obligations hereunder; this Agreement represents a valid obligation of [Redacted]and
[Redacted]and is fully enforceable against [Redacted]in accordance with
its terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting creditors’ rights generally;
	 
	 	(iii)	 	that [Redacted]will comply with the Association Rules and all laws,
rules, advances and regulations of any governmental agency in the performance
of[Redacted]obligations under[Redacted].






	15.	 	Retention of Records.






	 	15.1	 	If the Schedules provide that SERVICERS shall prepare and retain images (on microfilm
or otherwise) of CUSTOMER’s paper Transaction Records and Credit Vouchers, CUSTOMER shall
deliver to SERVICERS the originals or copies of CUSTOMER’s Transaction Records and Credit
Vouchers in suitable form for imaging no later than seven calendar days from the date of
the transaction; provided however, that CUSTOMER shall retain legible copies of
Transaction Records and Credit Vouchers for at least six months following the date of each
such transaction. If the Schedules provide that SERVICERS shall capture and store data
reflecting Card transactions electronically transmitted to SERVICERS, CUSTOMER shall
transmit to SERVICERS all data required to be included on Transaction Records and Credit
Vouchers (or CUSTOMER shall be responsible for any deficiencies in
the data transmitted). Except as otherwise set forth in the Schedules, CUSTOMER shall retain legible copies of
Transaction Records and Credit Vouchers for a period of at least [Redacted]from the
date of each such transaction.
	 
	 	15.2	 	Unless the Schedules provide that SERVICERS are responsible for retaining records of
CUSTOMER’s Card transaction data and CUSTOMER has actually delivered to SERVICERS
the applicable Card transaction data containing all required information in legible and
suitable form for imaging or electronic capture and storage (as applicable), CUSTOMER
shall be responsible for the retrieval of all Transaction Records and Credit Vouchers
requested by SERVICERS in accordance with the terms of this Agreement.
	 
	 	15.3	 	ARC Processing.
	 
	 	 	 	(a) SERVICERS agree and acknowledge that the Services provided hereunder include
SERVICERS’ ability to receive and process electronic credit card processing system
transmissions from ARC.
	 
	 	 	 	(b) SERVICERS will provide for the storage of all electronic images, electronic
media, computer tapes, transmission data which have been used in the transmission and/or
delivery to SERVICERS of Transaction Records or Credit Vouchers by ARC. SERVICERS will
maintain such records for the time periods specified by Association Rules and any
applicable state or federal laws. SERVICERS shall be responsible for satisfying all
retrieval requests on Transaction Records and Credit Vouchers which have been processed
through SERVICERS via ARC.






	16.	 	Cash Payments by and Cash Disbursements to Cardholders.
	 
	 	 	CUSTOMER shall not accept any direct payments from Cardholders for charges of merchandise or
services which have been included on a Transaction Record, it being the right of the Card
issuing bank to receive such payments. Taxes on Card transactions must be included in the
amount charged and may not be collected by CUSTOMER in cash. CUSTOMER shall not make any cash
disbursements to a Cardholder as part of a Card transaction except to the extent expressly
authorized by the Schedules or Association Rules.
	 
	17.	 	Confidentiality.






	 	17.1	 	Unless CUSTOMER obtains consents from each applicable Association, SERVICERS, Card
issuing bank and Cardholder, CUSTOMER shall not disclose, sell or disseminate any
information obtained solely as a result of Cardholder’s use of Cards to purchase goods or
services from CUSTOMER (including the names, addresses and Card account numbers of
Cardholders) except for purposes of authorizing, completing and settling Card transactions
and resolving any chargebacks, retrieval requests or similar issues involving Card
transactions, other than pursuant to a court or governmental agency request, subpoena or
order. CUSTOMER shall use proper controls for and shall limit access to, and shall render
unreadable prior to discarding, all records containing Cardholder account numbers and Card
imprints.
	 
	 	17.2	 	CUSTOMER acknowledges that it obtains no ownership rights in any information relating
to and derived from Card transactions. Cardholder account numbers, personal information
and other Card transaction information, including any databases containing such
information, may not be sold or disclosed to a third party as an asset upon a bankruptcy,
insolvency or failure of CUSTOMER’s business. Upon a bankruptcy, insolvency or failure of CUSTOMER’s business all Card transactions
information must be returned to SERVICERS or acceptable proof of the destruction of all Card
transaction information must be provided to SERVICERS.
	 
	 	17.3	 	For sake of clarification, nothing in this Section 17 restricts CUSTOMER’s use and
ownership of information it collects in the normal course of CUSTOMER’s business
regardless of whether a Card is used to effect the sale (for example, information such as
names, addresses, phone numbers and email addresses which CUSTOMER obtains from all its
customers), provided such use and ownership is permitted by Association Rules.






	18.	 	Assignment.





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	 	18.1	 	Any transfer or assignment of this Agreement by CUSTOMER, by operation of law or
otherwise, is voidable by SERVICERS without SERVICERS’ prior written consent. In the
event of such transfer or assignment, the party to whom the Agreement was transferred or
assigned shall be bound to the terms and conditions of this Agreement to the same extent
as if SERVICERS and such assignee or transferee, as the case may be, entered into an
agreement identical to this Agreement on the effective date of such transfer or
assignment. Furthermore, CUSTOMER shall indemnify and hold SERVICERS harmless from all
liabilities, Chargebacks, expenses, costs, fees and fines arising in connection with such
transferee’s or assignee’s, as the case may be, submission of Card transactions to
SERVICERS for processing. For purposes of this Agreement, any Change in Control of
CUSTOMER or its parent shall be considered an assignment or transfer hereof. “Change in
Control” shall mean (i) the acquisition at any time by any Person (other than CUSTOMER’s
parent or TPG Partners, L.P. or its affiliates) of “beneficial ownership” (within the
meaning of Section 13(d) under the Securities Exchange Act of 1934 (the “Exchange Act”)
and the rules and regulations promulgated thereunder) in excess of [Redacted]of
the total voting power of the Voting Stock of CUSTOMER or its parent; or (ii) the merger
or consolidation of CUSTOMER or its parent with or into another Person if, as a result of
such merger or consolidation, the Persons holding “beneficial ownership” (within the
meaning of Section 13(d) under the Exchange Act and the rules and regulations promulgated
thereunder) of the Voting Stock of CUSTOMER or its parent immediately prior to such merger
or consolidation do not hold “beneficial ownership” (within the meaning of Section 13(d)
under the Exchange Act and the rules and regulations promulgated thereunder) of at least
[Redacted]of the total voting power of the Voting Stock of the surviving Person in
such merger or consolidation. For purposes of this definition, the term Person includes a
“person” within the meaning of Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, and the term “Voting Stock” shall mean, with respect
to any Person, any and all classes of shares, interests, participations, or other
equivalents (however designated, whether voting or non-voting and whether now or hereafter
issued or outstanding) of such Person’s capital stock pursuant to which the holders
thereof have the general voting power under ordinary circumstances to vote for the
election of directors, managers or trustees of such Person (irrespective of whether or not
at the time stock of any class or classes will have or might have voting power by the
reason of the happening of any contingency).
	 
	 	18.2	 	Upon notice to CUSTOMER, another VISA and MasterCard member may be substituted for
BANK under whose sponsorship this Agreement is performed and for whom CMS is acting as
agent hereunder. Upon substitution, such other VISA and MasterCard member shall be
responsible for all obligations required of BANK, including without limitation, full
responsibility for its bankcard program and such other obligations as may be expressly
required by applicable Association Rules. Subject to Association Rules, SERVICERS may
assign or transfer this Agreement and their rights and obligations hereunder and may
delegate their duties hereunder, in whole or in part, to any third party, whether in
connection with a change in sponsorship, as set forth in the preceding sentence, or
otherwise, without notice to or consent of CUSTOMER, provided that any assignment by CMS
of its obligations under this Agreement without CUSTOMER’s consent must be to an entity
which is capable of performing CMS’s obligations hereunder. Notwithstanding the
foregoing, in the event CMS assigns its rights and obligations under this Agreement to any
party other than JP Morgan Chase Bank, First Data Merchant Services Corporation, or any of
their affiliates, then CUSTOMER may terminate this Agreement by providing written notice
to SERVICERS and CMS’s assignee within [Redacted]of CUSTOMER’s receipt of notice
regarding the assignment.
	 
	 	18.3	 	Except as provided in the following sentence, this Agreement shall be binding upon
successors and assigns and shall inure to the benefit of the parties and their respective
permitted successors and assigns. No assignee for the benefit of creditors, custodian,
receiver, trustee in bankruptcy, debtor in possession, sheriff or any other officer of a
court, or other person charged with taking custody of a party’s assets or business, shall
have any right to continue or to assume or to assign this Agreement.






	19.	 	Term; Events of Default.






	 	19.1	 	This Agreement and the applicable Schedules shall become effective upon the date this
Agreement and the applicable Schedules are signed by BANK (“Effective Date”), which shall
in all instances be on or after the date(s) CUSTOMER and CMS sign this Agreement and the
applicable Schedules.
	 
	 	19.2	 	The initial term of this Agreement shall commence and shall continue in force for
[Redacted]after it becomes effective, unless terminated sooner or extended as
provided herein. This Agreement shall renew for successive one-year periods unless a
party terminates this Agreement by notice to all other parties, in writing, at least
[Redacted]prior to the expiration of the term or renewal term, as the case may be.
	 
	 	19.3	 	If any of the following events shall occur and remain uncured by CUSTOMER following
any applicable cure period (upon expiration of any applicable cure period, each an “Event
of Default”):






	 	(i)	 	any assignment in violation of Section 18 of this Agreement; or
	 
	 	(ii)	 	a sale of all or a substantial portion ([Redacted]or more) of
CUSTOMER’s assets outside of the ordinary course of business during any fiscal year;
or
	 
	 	(iii)	 	fraudulent or suspected fraudulent Card sales by CUSTOMER or excessive
Chargebacks (in either case, in excess of [Redacted]of dollar or transaction
volume); or
	 
	 	(iv)	 	any representation or warranty in this Agreement is breached in any material
respect or was or is incorrect in any material respect when made or deemed to be made
and such breach may, in the non-defaulting party’s reasonable discretion, affect
CUSTOMER’s ability to perform its obligations under this Agreement; or
	 
	 	(v)	 	(a) the default in any material respect in the performance or observance of
any material term, covenant, condition or agreement contained in this Agreement and
such default may, in the non-defaulting party’s reasonable discretion, affect the
defaulting party’s ability to perform its obligations under this Agreement.
	 
	 	 	 	(b) failure by CUSTOMER to establish and/or maintain a Reserve Account in compliance
with the timeframes and terms as detailed in Section 20;
	 
	 	(vi)	 	the revocation, expiration or termination of the Guaranty;
	 
	 	(vii)	 	a case or other proceeding shall be commenced by or against either party, in
any court of competent jurisdiction seeking relief under the Bankruptcy Code or under
any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts, the appointment of a trustee,
receiver, custodian, liquidator or the like of either party, or of all or any
substantial part of the assets, domestic or foreign, of either party, and such case or
proceeding shall continue undismissed or





Page 6 of 22









 






unstayed for a period of [Redacted],
or an order granting the relief requested in such case or proceeding against either
party (including, but not limited to, an order for relief under the Bankruptcy Code)
shall be entered; or




	 	(viii)	 	the independent certified accountants retained by CUSTOMER and its parent company
shall refuse to deliver annual financial statements of CUSTOMER, its parent company
and their consolidated subsidiaries or shall deliver annual financial statements with
a “going concern” qualification and such qualification indicates, in SERVICERS’
reasonable discretion, that CUSTOMER may not be able to perform its obligations under
this Agreement; or
	 
	 	(ix)	 	CUSTOMER shall indicate that any Association endorses its products or
Services.






Then after the expiration of any applicable cure period set forth in Section 19.4, the
non-defaulting party may consider this Agreement to be terminated immediately, without
notice, and all amounts payable hereunder by CUSTOMER to SERVICERS shall be immediately due
and payable in full without demand or other notice of any kind, all of which are expressly
waived by CUSTOMER.




	 	19.4	 	For any events specified in subparagraphs (iii), (v)(b), (vi) or (vii) above the cure
period shall be [Redacted]For any event specified in subparagraphs (i), (ii),
(iv), (v)(a), (viii) or (ix) above, the cure period shall be [Redacted]Upon the
occurrence of any Event of Default SERVICERS may, subject to any applicable cure period,
terminate this Agreement and declare all amounts due from CUSTOMER to SERVICERS to be
immediately due and payable.
	 
	 	19.5	 	If any event specified in Section 19.3 shall have occurred and be continuing, the
parties may, in their sole discretion, exercise all of their rights and remedies under
applicable law, including, without limitation, SERVICERS’ rights under Section 20.
	 
	 	19.6	 	(a) If any other processor of bankcard transactions (a “Third Party Processor”) has
offered to process CUSTOMER’s bankcard transactions upon better terms and conditions
(other than price) as SERVICERS have agreed to under this Agreement, then CUSTOMER may
provide notice of such fact to SERVICERS, such notice shall set forth all material terms
regarding the proposed agreement between CUSTOMER and the Third Party Processor (a “Third
Party Processor Offer Reserve Notice”). Unless SERVICERS agree to match the better terms
of the Third Party Processor within [Redacted]of SERVICERS’ receipt of the Third
Party Processor Offer Reserve Notice, CUSTOMER may terminate this Agreement as of the date
[Redacted]following SERVICERS receipt of the Third Party Processor Offer Reserve
Notice. 
	 
	 	 	 	(b) If after the third anniversary of CUSTOMER’s submission of its first transactions to
SERVICERS for processing any Third Party Processor has offered to process CUSTOMER’s
bankcard transactions upon substantially the same terms as SERVICERS have agreed to under
this Agreement, but such Third Party Processor has agreed to do so for pricing which is
better than the pricing provided by SERVICERS pursuant to this Agreement, then CUSTOMER may
provide notice of such fact to SERVICERS, such notice shall set forth all material terms
regarding the proposed agreement between CUSTOMER and the Third Party Processor (a “Third
Party Processor Offer Pricing Notice”) (Third Party Processor Reserve Notices and Third
Party Processor Pricing Notices are collectively referred to herein
as “Third Party Processor Notices”). Unless SERVICERS agree to adjust their pricing to match
the better pricing offered by the Third Party Processor within 14 days of SERVICERS’
receipt of the Third Party Processor Offer Pricing Notice, CUSTOMER may terminate this
Agreement as of the date 90 days following SERVICERS receipt of the Third Party Processor
Offer Pricing Notice.
	 
	 	19.7	 	If this Agreement is terminated pursuant to Section 19.3, CUSTOMER acknowledges that
SERVICERS may be required to report CUSTOMER’s business name and the names and other
identification of its principals to the Combined Terminated Merchant File maintained by
VISA and MasterCard. CUSTOMER expressly agrees and consents to such reporting in the
event CUSTOMER is terminated for any reason specified as cause by VISA or MasterCard.
Furthermore, CUSTOMER agrees to waive any and all claims which CUSTOMER may have as a
result of such reporting.
	 
	 	19.8	 	The provisions governing processing and settlement of Card transactions, all related
adjustments, fees and other amounts due from CUSTOMER and the resolution of any related
chargebacks, disputes or other issues involving Card transactions will continue to apply
even after termination of this Agreement, until all Card transactions made prior to such
termination are settled or resolved.
	 
	 	19.9	 	After termination of this Agreement for any reason whatsoever, CUSTOMER shall
continue to bear total responsibility for all Chargebacks, fees, credits and adjustments
resulting from Card transactions processed pursuant to this Agreement and all other
amounts then due or which thereafter may become due to SERVICERS under this Agreement or
which may be due to SERVICERS before or after such termination to either SERVICERS or any
of SERVICERS’ affiliates for any related equipment or related services.






	20.	 	Reserve Account; Security Interest.






	 	20.1	 	CUSTOMER expressly authorizes SERVICERS to establish a Reserve Account pursuant to
the terms and conditions set forth in this Section 20. The initial amount of such Reserve
Account will be [Redacted]and shall be generated via the weekly retention of
[Redacted]of processing proceeds until the [Redacted]goal is attained.
Subject to the provisions of Section 20.2, the amount maintained in the Reserve Account
will be adjusted, for the first time on[Redacted]. Thereafter, the amount
maintained in the Reserve Account will be adjusted [Redacted]following receipt by
SERVICERS of reports of Gross Air Traffic Liability and Net Air Traffic Liability for the
[Redacted]periods ended [Redacted]and [Redacted]of each year. The
adjusted amount to be maintained in the Reserve Account (the “Adjusted Reserve Result”)
shall be based upon a Gross Reserve Percentage of [Redacted]or Net Reserve
Percentage of [Redacted]whichever figure presents a higher amount at any given
time, utilizing an average of the month end Gross Air Traffic Liability and Net Air
Traffic liability for [Redacted]reported. Notwithstanding the foregoing, in the
event that the Adjusted Reserve Result is within [Redacted](either greater or
lesser) of the amount then maintained in the Reserve Account, no adjustment will be made
to the Reserve Account. The amount required to be deposited in the Reserve Account may
also be adjusted pursuant to Sections 20.2 and 20.6 of this Agreement, but SERVICERS may
not require CUSTOMER to fund a Reserve Account which exceeds [Redacted]
	 
	 	20.2	 	Notwithstanding the provisions of Section 20.1 or any other provision of this
Agreement, upon notice to CUSTOMER, SERVICERS may change the amount required to be
maintained in the Reserve Account, change the Gross Reserve Percentage, change the Net
Reserve Percentage, or accelerate the generation of the[Redacted], following the
occurrence of any of the following events:






	 	•	 	Any Event of Default specified in Section 19.3 of this Agreement.





Page 7 of 22









 






	 	•	 	A Material Adverse Change has occurred in the condition of CUSTOMER or GUARANTOR.
For the purposes of this Agreement, “Material Adverse Change” shall mean either (A) a
material change to CUSTOMER’s or GUARANTOR’s financial condition or its business that,
in SERVICERS’ reasonable determination, either (i) then materially and adversely
affects, or (ii) may in the foreseeable future materially and adversely affect,
CUSTOMER’s ability to perform its obligations under this Agreement, its ability to
fulfill travel services associated with the Card transactions submitted to SERVICERS for
processing, or GUARANTOR’s ability to fulfill its obligations under the Guaranty, or (B)
a material adverse change in the business procedures, Card processing procedures,
products or services of CUSTOMER which, in SERVICERS’ reasonable determination,
materially increases SERVICERS’ potential exposure or liability related to Chargebacks
related to CUSTOMER’s Card transactions. SERVICERS shall provide written notice to
CUSTOMER describing in reasonable detail the circumstances or event that SERVICERS deem
to constitute a material adverse change, and notifying CUSTOMER of the amount required
to provide SERVICERS with Full Coverage. After receiving any such notice CUSTOMER shall,
within [Redacted]following receipt of such notice, increase the Reserve Account
to Full Coverage. If CUSTOMER shall fail, within said [Redacted]period, to
increase the Reserve Account to Full Coverage, SERVICERS may immediately thereafter
elect to take immediate action to fund the Reserve Account to[Redacted].
Pursuant to Section 19.3(v)(b), CUSTOMER’s failure to fund the Reserve Account to
[Redacted]within said [Redacted]period shall constitute an Event of
Default.
	 
	 	•	 	The Corporate Debt Rating of America West Airlines, Inc. is downgraded by S&P or
Moody’s or the Corporate Debt Rating of GUARANTOR is downgraded by S&P. In the event of
such a downgrade, SERVICERS may elect to provide written notice to CUSTOMER that
SERVICERS are requiring that the Reserve Account be increased to[Redacted]. In
such notice, SERVICERS will
provide CUSTOMER with the amount required to provide SERVICERS with[Redacted].
After receiving any such notice CUSTOMER shall, within [Redacted]following
receipt of such notice, increase the Reserve Account to[Redacted]. If CUSTOMER
shall fail, within said [Redacted]period, to increase the Reserve Account to Full
Coverage, SERVICERS may immediately thereafter elect to take immediate action to fund the
Reserve Account to [Redacted]Pursuant to Section 19.3(v)(b), CUSTOMER’s failure
to fund the Reserve Account to Full Coverage within said [Redacted]shall
constitute an Event of Default.
	 
	 	•	 	This Agreement has been terminated by either party (other than for a termination by
CUSTOMER exclusively pursuant to Section 18.2 or 19.6 of this Agreement in which case
the balance to be maintained in the Termination Reserve Account will be governed by
Section 20.6 of this Agreement)
	 
	 	•	 	After written request from SERVICERS and passage of a [Redacted]period,
CUSTOMER shall fail to either make public or deliver to SERVICERS any of the financial
reports or information described in Section 21.1 within the time frames described in
Section 21.1.






CUSTOMER represents that as of the date of this Agreement, the current Corporate Debt Ratings
of America West Airlines are CCC (S&P) and Ca (Moody’s) and that of GUARANTOR is B- (S&P).
Upon the occurrence of an upgrade in the Corporate Debt Rating of America West Airlines, Inc.
or the Corporate Debt Rating of GUARANTOR, SERVICERS shall decrease the Gross Reserve
Percentage and Net Reserve Percentages according to the following guidelines:



	 	 	 	 	 	 	 	 	 
	Corporate Debt Rating	 	Corporate Debt Rating	 	Corporate Debt Rating	 	 	 	 
	of GUARANTOR	 	of America West Airlines, Inc.	 	of America West Airlines, Inc.	 	Net Reserve	 	Gross Reserve
	(S&P)	 	(S&P)	 	(Moody’s)	 	 	 	Percentage
	Percentage	 	 	 	 	 	 	 	 
	[Redacted]

	 	[Redacted]
	 	[Redacted]
	 	[Redacted]
	 	[Redacted]
	[Redacted]

	 	[Redacted]
	 	[Redacted]
	 	[Redacted]
	 	[Redacted]







Note: The Gross and Net Reserve Percentages will be determined according to the lowest
of (a) the Corporate Debt Rating of America West Airlines, Inc. as reported by S&P (b) the
Corporate Debt Rating of America West Airlines, Inc. as reported by Moody’s or (c) the
Corporate Debt Rating of GUARANTOR.




Notwithstanding the public debt ratings as outlined above, SERVICERS agree to reevaluate
the Reserve Account on no less than an annual basis and consider reducing the required
balance based upon material improvements as determined in SERVICERS’ sole discretion.




	 	20.3	 	The Reserve Account may be funded by all or any combination of the following: (i) a
wire transfer of funds to SERVICERS; (ii) one or more deductions or off sets to any
payments otherwise due to CUSTOMER; (iii) CUSTOMER’s delivery to SERVICERS of a letter of
credit; or (iv) if SERVICERS so agree, CUSTOMER’s pledge to SERVICERS of a freely
transferable and negotiable certificate of deposit. Any such letter of credit or
certificate of deposit shall be issued or established by a financial institution
acceptable to SERVICERS and shall be in a form satisfactory to SERVICERS. CUSTOMER shall
have the right to decide which of the specified manners the Reserve Account will be funded
during any required funding period. In the event that CUSTOMER fails to fund the Reserve
Account within the required funding period, SERVICERS may decide the form in which the
funding will be provided. In the event of termination of this Agreement by either
CUSTOMER or SERVICERS, a Termination Reserve Account will be established in an amount
determined pursuant to Section 20.6 and in the manner provided above. Any Termination
Reserve Account will be held by
BANK for the greater of ten months after termination of this Agreement or for such longer
period of time as is consistent with BANK’s liability for Card transactions in accordance
with Association Rules. CUSTOMER’s funds held in a Reserve Account may be held in a
commingled Reserve Account for the reserve funds of BANK’s customers, without involvement
by an independent escrow agent.





Page 8 of 22









 






	 	20.4	 	If CUSTOMER’s funds in the Reserve Account are not sufficient to cover the
Chargebacks, adjustments, fees and other charges due from CUSTOMER, or if the funds in the
Reserve Account have been released, CUSTOMER agrees to promptly pay SERVICERS such sums
upon request. In the event of a failure by CUSTOMER to fund the Reserve Account,
SERVICERS may fund such Reserve Account in any manner set forth in subsection 20.3, above.
	 
	 	20.5	 	To secure CUSTOMER’s obligations to SERVICERS and their affiliates under this
Agreement and any other agreement for the provision of related equipment or related
services, CUSTOMER grants to SERVICERS a lien and security interest in and to any of
CUSTOMER’s funds maintained in the Reserve Account and any Termination Reserve Account.
Any such funds, money or amounts may be commingled with other funds of SERVICERS, or, in
the case of any funds held pursuant to the foregoing paragraphs, with any other funds of
other customers of SERVICERS, provided however, such funds shall at all times be held in
an account belonging to SERVICERS which satisfies the criteria specified on Schedule C.
SERVICERS shall credit CUSTOMER with all interest actually earned on amounts held in the
Reserve Account or the Termination Reserve Account, or CUSTOMER’s proportionate share of
such interest earned with respect to any commingled Reserve Account or Termination Reserve
Account. In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, SERVICERS are hereby authorized by CUSTOMER at
any time and from time to time, without notice or demand to CUSTOMER or to any other
person (any such notice and demand being hereby expressly waived), to set off, recoup and
to appropriate and to apply any and all funds pertaining to the Card transactions
contemplated by this Agreement which may be in the possession of SERVICERS or funds
maintained in the Reserve Account against and on account of CUSTOMER’s obligations to
SERVICERS and their affiliates under this Agreement and any other agreement with SERVICERS
or any of SERVICERS’ affiliates for any related equipment or related services (including
any check guarantee and check verification services), whether such obligations are
liquidated, unliquidated, fixed, contingent, matured or unmatured. CUSTOMER agrees to
duly execute and deliver to SERVICERS such instruments and documents as SERVICERS may
reasonably request to perfect and confirm the lien, security interest, right of set off,
recoupment and subordination set forth in this Agreement.
	 
	 	20.6	 	Upon termination of this Agreement by any party, CUSTOMER expressly authorizes
SERVICERS to establish a Termination Reserve Account. The amount required to be initially
maintained in the Termination Reserve Account will be based upon the greater of (x) the
Net Reserve Percentage or the Gross Reserve Percentage in effect as of the effective date
of termination, and (y) the total amount of CUSTOMER’s Chargebacks during the prior
[Redacted]period. Any amounts being held in the Reserve Account at the time the
Termination Reserve Account is established shall be transferred to the Termination Reserve
Account. SERVICERS agree to review the amount maintained in the Termination Reserve
Account every [Redacted]following the effective date of termination for potential
reductions in the balance maintained in the account. Reductions will be based upon the
BANK’s or CMS’s potential liability with respect to CUSTOMER’s Card transactions pursuant
to Association Rules, provided the Termination Reserve Account required by SERVICERS shall
not exceed the greater of (i) the Net Reserve Percentage, (ii) the Gross Reserve
Percentage or (iii) the total amount of CUSTOMER’s Chargebacks during
the[Redacted]. The Net Reserve Percentage and the Gross Reserve Percentage shall
be calculated based upon updated reports of Gross Air Traffic Liability and Net Air
Traffic Liability provided by CUSTOMER as required in this Agreement. Notwithstanding the
foregoing, in the event that CUSTOMER is in default of this Agreement or if a Material
Adverse Change has occurred, SERVICERS may, at their option, increase the amount required
to be maintained in the Termination Reserve Account to an amount they deem necessary to
fully protect themselves against actual or contingent liability arising from Chargebacks,
adjustments, fees and other charges, but not to exceed the greater of [Redacted]or
the total amount of CUSTOMER’s Chargebacks during the prior [Redacted]






	21.	 	Financial and Other Information.






	 	21.1	 	For as long as CUSTOMER and/or GUARANTOR remains a company whose shares of common
stock are actively traded on an organized national domestic exchange (a “public company”),
CUSTOMER agrees that it and GUARANTOR (as applicable) shall comply with all material
reporting requirements of the Securities and Exchange Commission (“SEC”). In the event
that the shares of CUSTOMER or GUARANTOR become privately held and are no longer actively
traded on an organized national domestic exchange, CUSTOMER agrees, upon SERVICERS’
request, to provide SERVICERS quarterly financial statements of CUSTOMER and GUARANTOR
within [Redacted]after the end of each [Redacted]and
[Redacted]audited financial statements within [Redacted]after the end of
each[Redacted]. Such financial statements shall be prepared in accordance with
generally accepted accounting principles. CUSTOMER shall provide SERVICERS with monthly
unaudited financial statements and monthly new ticket sales data which shall include a
comparison to the prior year’s data within [Redacted]of the end of each calendar
month. CUSTOMER further agrees to provide SERVICERS with CUSTOMER’s most recent
quarterly internal results, forecast (which shall include balance sheet, profit and loss
and cash flow statements), and operating plan which CUSTOMER prepares as follows: (i) an
annual operating plan, (ii) [Redacted]results with remainder of year forecast,
(iii) [Redacted]quarter results with remainder of year forecast, and (iv)
[Redacted]results with remainder of year forecast by no later than
[Redacted]following the close of each [Redacted]as well as detailed
monthly reports outlining both Gross Air Traffic Liability and Net Air Traffic Liability
as soon as available but in no case later than [Redacted], provided that for the
[Redacted]of the initial term CUSTOMER shall be required to provide such reports
within [Redacted]after the close of each[Redacted]. CUSTOMER also shall
provide such other information concerning the nature and methods of CUSTOMER’s business,
CUSTOMER’s financial condition, and CUSTOMER’s compliance with the terms and provisions of
this Agreement as SERVICERS may reasonably request. CUSTOMER authorizes SERVICERS to
obtain from third parties financial and credit information relating to CUSTOMER in
connection with SERVICERS’ determination whether to execute this Agreement and SERVICERS’
continuing evaluation of the financial and credit status of CUSTOMER. Upon request and
reasonable notice, CUSTOMER shall provide to SERVICERS or their representatives reasonable
access to CUSTOMER’s facilities and records for the purpose of performing any inspection
and/or copying of CUSTOMER’s books and/or records related to Card transactions processed
pursuant to this Agreement or to verify the Gross Air Traffic Liability and Net Air Traffic
Liability data provided by CUSTOMER. CUSTOMER further agrees to meet with SERVICERS no less
frequently than [Redacted]upon SERVICERS’ request to discuss
CUSTOMER’s actual and
forecast results.





Page 9 of 22









 






	 	21.2	 	CUSTOMER will provide SERVICERS with written notice of CUSTOMER’s intent to
liquidate, substantially change the basic nature of its business, transfer or sell any
substantial part ([Redacted]or more in value outside of the normal course of
business in any fiscal year) of its total assets outside of the normal course of business
in any fiscal year, or if CUSTOMER or its parent is not a corporation whose shares are
listed on a national securities exchange or on the over-the-counter market, change the
control or ownership of CUSTOMER or its parent, [Redacted]prior to such
liquidation, change, transfer or sale taking place. CUSTOMER will also notify SERVICERS
of any judgment, writ, warrant of attachment, execution or levy against any substantial
part ([Redacted]or more in value) of CUSTOMER’s total assets not later than
[Redacted]after CUSTOMER obtains knowledge of any such judgment, writ, warrant of
attachment, execution or levy.






	22.	 	Indemnification.






	 	22.1	 	CUSTOMER agrees to indemnify and hold harmless SERVICERS from and against all losses,
liabilities, damages and expenses resulting from any breach of any warranty, covenant or
agreement or any misrepresentation by CUSTOMER under this Agreement, or arising out of any
gross negligence or willful misconduct of CUSTOMER or its employees, in connection with
CUSTOMER’s Card transactions or otherwise arising from CUSTOMER’s provision of goods and
services to Cardholders.
	 
	 	22.2	 	Subject to the limitations set forth in Section 14 of this Agreement, SERVICERS agree
to indemnify and hold harmless CUSTOMER from and against all losses, liabilities, damages
and expenses resulting from any breach of any warranty, covenant or agreement or any
misrepresentation by SERVICERS under this Agreement or arising out of the gross negligence
or willful misconduct of SERVICERS or their employees in connection with this Agreement.






	23.	 	Liquidated Damages.






	 	23.1	 	The parties further agree and acknowledge that, in addition to any remedies contained
herein or otherwise available under applicable law and, notwithstanding anything to the
contrary elsewhere in this Agreement, if (a) CUSTOMER breaches this Agreement by
improperly terminating it prior to the expiration of the applicable term of the Agreement,
or (b) this Agreement is terminated prior to the expiration of the applicable term of the
Agreement by SERVICERS in accordance with Section 19.3, then SERVICERS will suffer a
substantial injury that is difficult or impossible to accurately estimate. Accordingly,
in an effort to liquidate in advance the sum that should represent the damages which would
actually be sustained by SERVICERS as the result of such a termination, the parties have
agreed that the amount calculated in the manner specified below is a reasonable
pre-estimate of SERVICERS’ probable loss, which shall be paid to SERVICERS as liquidated
damages in the event of any such termination. Any recovery pursuant to this Section 23
shall in no way limit SERVICERS’ right to receive any payments due from CUSTOMER pursuant
to Section 13. Such liquidated damages shall be paid to SERVICERS within 15 days after
CUSTOMER’s receipt of SERVICERS’ calculation of the amount due. The liquidated damages
amount shall [Redacted]of the product of (i) the average[Redacted], as
determined in accordance with subsection 23.2, and (ii) the[Redacted], including
any pro rata portion of a[Redacted], then remaining in the initial term or any
renewal term, as applicable. For sake of clarification, CUSTOMER shall not be required to
pay any liquidated damages to SERVICERS solely as a result of CUSTOMER terminating this
Agreement pursuant to Sections 18.2 or 19.6.
	 
	 	23.2	 	The average net monthly fees shall equal [Redacted]of the gross fees payable
pursuant to the Schedules, less applicable interchange fees and assessments due pursuant
to this Agreement, during the [Redacted]immediately preceding the date on which
(i) SERVICERS receive notice from CUSTOMER of its intention to improperly terminate this
Agreement early, or (ii) SERVICERS learn of CUSTOMER’s early termination in violation of
this Agreement, or (iii) this Agreement is terminated early pursuant to subsection 19.3
(whichever produces the higher amount); provided, however, if the Agreement has been in
place less than[Redacted], the estimated average net monthly fees shall equal the
aggregate gross fees paid hereunder by CUSTOMER, divided by the number of months the
Agreement was effective.






	24.	 	Miscellaneous.






	 	24.1	 	No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is caused,
directly or indirectly, by (i) fire, flood, elements of nature or other acts of God; (ii)
any outbreak or escalation
of hostilities, war, riots or civil disorders in any country; (iii) any act or omission of
the other party or any government authority; (iv) any labor disputes (whether or not
employees’ demands are reasonable or within the party’s power to satisfy); or (v) the
nonperformance by a third party for any similar cause beyond the reasonable control of such
party, including without limitation, failures or fluctuations in telecommunications or
other equipment. In any such event, the non-performing party shall be excused from any
further performance and observance of the obligations so affected only for as long as such
circumstances prevail and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
	 
	 	24.2	 	This Agreement shall be governed by and construed in accordance with the laws of the
State of New York (without regard to its choice of law provisions). In performing its
obligations under this Agreement, each party agrees to comply with all laws and
regulations applicable to it. SERVICERS AND CUSTOMER IRREVOCABLY WAIVE ANY AND ALL RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING
TO OR ARISING UNDER THIS AGREEMENT.
	 
	 	24.3	 	CUSTOMER shall be liable for any and all reasonable attorney’s fees, collection costs
and other costs and expenses paid or incurred by SERVICERS in the enforcement hereof, or
in collecting any amount due from CUSTOMER to SERVICERS hereunder or resulting from any
breach by CUSTOMER of any of the terms or conditions of this Agreement. SERVICERS shall be
liable for any and all reasonable attorney’s fees, collection costs and other costs and
expenses paid or incurred by CUSTOMER in the enforcement hereof, or in collecting any
amount due from SERVICERS to CUSTOMER hereunder or resulting from any breach by SERVICERS
of any of the terms or conditions of this Agreement.
	 
	 	24.4	 	Following receipt of any request to perform or provide any system enhancements,
custom reports, or related service enhancements that are different from or in addition to
the system, services and reports SERVICERS otherwise agree to provide to CUSTOMER
(collectively, “System Enhancements”), and prior to providing the requested System
Enhancements, SERVICERS shall provide CUSTOMER with a description of the System
Enhancements to be made, together with an estimate of SERVICERS’ fee for providing





Page 10 of 22









 






	 	 	 	such System Enhancements. If CUSTOMER thereafter instructs SERVICERS to make such System
Enhancements, SERVICERS shall do so, and CUSTOMER shall pay the additional fees quoted by
SERVICERS for such System Enhancements.
	 
	 	24.5	 	Except as otherwise specifically provided, all notices and other communications
required or permitted hereunder (other than those involving normal operational matters
relating to the processing of Card transactions) shall be in writing, shall be sent by
mail, courier, facsimile or email (facsimile and email notices shall be confirmed in
writing by courier), if to CUSTOMER at its address appearing at the beginning on this
Agreement, and if to SERVICERS at 265 Broad Hollow Road, Melville, New York 11747,
Facsimile [Redacted], Attention: Executive Vice President Operations, with a copy
to Attention: General Counsel’s Office at 3975 N.W. 120th Avenue, Coral Springs, Florida
33065, Facsimile:[Redacted], and shall be deemed to have been given (i) if sent by
mail or courier, when received and (ii) if sent by facsimile machine, when the courier
confirmation copy is actually received. Notice given in any other manner shall be
effective when actually received.
	 
	 	24.6	 	The headings contained in this Agreement are for convenience of reference only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
	 
	 	24.7	 	The parties intend every provision of this Agreement to be severable. If any part of
this Agreement is not enforceable, the remaining provisions shall remain valid and
enforceable. If a court of competent jurisdiction determines that any term or provision
contained herein is illegal or invalid for any reason, the illegality or invalidity shall
not affect the validity of the remainder of this Agreement. In such case, the parties
shall in good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its essential purpose,
then all other provisions of this Agreement, including the limitations on liability and
exclusion of damages, shall remain fully effective.
	 
	 	24.8	 	This Agreement, along with any Schedules and the Operating Guide, constitutes the
entire agreement between the parties with respect to the subject matter, supersedes any
previous agreements and understandings and, except as provided in other Sections of this
Agreement, the Schedules or the Operating Guide, can be changed only by a written
agreement signed by all parties. A party’s waiver of a breach of any term or condition of
this Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
	 
	 	24.9	 	The parties acknowledge that the VISA and MasterCard Association Rules give VISA and
MasterCard certain rights to require termination or modification of this Agreement with
respect to transactions involving VISA and MasterCard Cards and the VISA and MasterCard
Card system and to investigate CUSTOMER. The parties also acknowledge that issuers of
other Cards, for which SERVICERS perform services on behalf of CUSTOMER, may have similar
rights under their applicable Association Rules with respect to this Agreement’s
applicability to transactions involving such other Cards.
	 
	 	24.10	 	CUSTOMER shall display the VISA and MasterCard service mark decals in accordance
with the Association Rules and may display other materials provided by SERVICERS, where
appropriate and at CUSTOMER’s discretion. CUSTOMER shall use the VISA and MasterCard
service marks only to indicate that such cards are accepted for payment and shall not
indicate directly or indirectly that VISA or MasterCard endorses CUSTOMER’s goods or
services. CUSTOMER’s right to use or display the VISA and MasterCard service marks
pursuant to this Agreement shall continue only so long as this Agreement remains in
effect.





     The parties hereto have caused this Agreement to be executed by their duly authorized
officers. THIS AGREEMENT IS NOT BINDING UPON SERVICERS UNTIL SIGNED BY SERVICERS.



	 	 	 	 	 	 	 
	AMERICA WEST AIRLINES, INC.	 	JP MORGAN CHASE BANK
	 	 	 
	(“AWA”)	 	(“BANK”)
	 
	 	 	 	 	 	 
	By:
	 	/s/ Derek J. Kerr	 	By:	 	/s/ Philip Levine
	 

	 	 
	 	 	 	 
	Name:
	 	Derek J. Kerr	 	Name:	 	Philip Levine
	 

	 	 
	 	 	 	 
	 

	 	(Please Print or Type)
	 	 	 	(Please Print or Type)
	Title:
	 	Sr. Vice President and Chief
Financial Officer	 	Title:	 	Credit Director, FDMS
	 

	 	 
	 	 	 	 
	Date:

	 	April 15, 2003	 	Date:	 	April 16, 2003
	 
	 	 	 	 	 	 
	THE LEISURE COMPANY	 	CHASE MERCHANT SERVICES, L.L.C.
	 	 	 
	(“TLC”)	 	(“CMS”)
	 
	 	 	 	 	 	 
	By:
	 	/s/ W. Douglas Parker	 	By:	 	/s/ Thanassis G. Mazarakis
	 

	 	 
	 	 	 	 
	Name:

	 	W. Douglas Parker	 	Name:	 	Thanassis G. Mazarakis
	 

	 	 
	 	 	 	 
	 

	 	(Please Print or Type)
	 	 	 	(Please Print or Type)
	Title:

	 	Chairman	 	Title:	 	President
	 

	 	 
	 	 	 	 
	Date:

	 	April 15, 2003	 	Date:	 	April 16, 2003
	 

	 	 
	 	 	 	 





Page 11 of 22









 





ANNEX 1



The following terms shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):





	 	1.1	 	“Association” means any entity formed to administer and promote Cards,
including VISA and MasterCard, and any other entity as specified on the Schedules to this
Agreement.
	 
	 	1.2	 	“Association Rules” mean the rules, regulations, releases, interpretations
and other requirements (whether contractual or otherwise) imposed or adopted by any
Association.
	 
	 	1.3	 	“Authorization” means the process by which CUSTOMER electronically accesses
SERVICERS’ computerized system, unless such system is inoperable or otherwise not
accessible to CUSTOMER, in which case CUSTOMER shall utilize the designated toll-free
telephone number, to obtain credit approval from the Card issuing bank before completion
of the Card transaction.
	 
	 	1.4	 	“Bankruptcy Code” means title 11 of the United States Code, as amended from
time to time.
	 
	 	1.5	 	“Breakage” means the sales price for all tickets sold by CUSTOMER, paid for
via a Card transaction, which meet the all of the following criteria:






	 	(a)	 	the ticket is non-refundable in nature.
	 
	 	(b)	 	the ticket has passed the initial departure date (excluding tickets for which all
segments have been flown or used by the
passenger).
	 
	 	(c)	 	the ticket has not been exchanged/rebooked for a future flight.
	 
	 	(d)	 	no voucher or credit has been issued for the ticket.






	 	1.6	 	“Business Day” means a day (other than Saturday or Sunday) on which SERVICERS
are generally open for business.
	 
	 	1.7	 	“Card” means a valid credit card or valid off-line debit card bearing the
service mark of VISA or MasterCard and, to the extent the Schedules so provide, a valid
card issued by any other Associations specified on such Schedules, including Diners Club
to the extent agreed by the parties.
	 
	 	1.8	 	“Cardholder” means the individual whose name is embossed on the Card and any
authorized user of such Card.
	 
	 	1.9	 	“Chargeback” means the procedure by which a Transaction Record or other
indicia of a Card transaction (or disputed portion thereof) is returned to Bank or the
Card issuing bank, for failing to comply with Association Rules, the liability of which is
the CUSTOMER’s responsibility.
	 
	 	1.10	 	“Credit Voucher” means all documents or electronic records of such documents
which constitute evidence of a refund or price adjustment by CUSTOMER to a Cardholder’s
account in connection with a prior purchase by such Cardholder using a Card, regardless of
whether such evidence is in paper, electronic or other form.
	 
	 	1.11	 	“CUSTOMER’s Chargeback Percentage” means the actual monthly percentage
calculated by dividing CUSTOMER’s total monthly VISA and MasterCard Chargeback items in
any line of business by the number of CUSTOMER’s total monthly VISA and MasterCard
transactions in such line of business.
	 
	 	1.12	 	“Full Coverage” means the amount estimated by SERVICERS at any given time
based upon information available to them of the highest amount that Gross Air Traffic
Liability will reach at any time between the assessment of Full Coverage and the
[Redacted]
	 
	 	1.13	 	“Gross Air Traffic Liability” means, at any given time, the greater of (a)
the sales price of all tickets or services sold by CUSTOMERwhich, pursuant to CUSTOMER’s
policies represents a valid obligation of CUSTOMER for which the holder or purchaser of
the ticket or service has paid via a Card transaction and has not yet traveled or used the
ticket or service, and (b) the dollar amount of any and all unfulfilled tickets or
services which may be or become subject to Chargeback pursuant to Association Rules.
	 
	 	1.14	 	“Gross Reserve Percentage” is a factor multiplied by the average Gross Air
Traffic Liability for the most recent [Redacted]period in determining the amount
to be maintained in the Reserve Account.
	 
	 	1.15	 	“Guarantor” or “GUARANTOR” means America West Holdings Corporation.
	 
	 	1.16	 	“Guaranty” means the Guaranty provided by Guarantor as a condition to
SERVICERS entering into this Agreement which shall be in the form attached hereto as
Exhibit A.
	 
	 	1.17	 	“Material Adverse Change” shall have the meaning ascribed to it in Section 19.3(i).
	 
	 	1.18	 	“Moody’s” means Moody’s Investor Services, Inc., or any successor thereto.
	 
	 	1.19	 	"Net Air Traffic Liability” is equal to Gross Air Traffic Liability less Breakage.
	 
	 	1.20	 	“Net Reserve Percentage” is a factor multiplied by the average Net Air
Traffic Liability for the most recent six (6) month period in determining the amount to be
maintained in the Reserve Account.
	 
	 	1.21	 	“Operating Guide” means the then-current manual prepared by SERVICERS,
containing operational procedures, instructions and other directives relating to Card
transactions. The Operating Guide shall contain rules, procedures and requirements which
are generally applicable to all merchants, all merchants which enter Card transactions in
a specific manner(s), or all merchants in a particular industry, but shall not
specifically target CUSTOMER or be enforced in a discriminatory manner.
	 
	 	1.22	 	“Preauthorized Order” means a Cardholder’s written authorization to make one
or more future charges to such Cardholder’s MasterCard Card account in connection with the
purchase of goods or services which are delivered or performed periodically.
	 
	 	1.23	 	“Corporate Debt Rating of GUARANTOR” means the rating that has most recently
announced by S&P as the lowest of the Corporate Credit Rating or any other rating issued
by S&P with respect to GUARANTOR.
	 
	 	1.24	 	“Corporate Debt Rating of America West Airlines” means the ratings that have
been most recently announced by S&P and Moody’s as the Senior Unsecured Rating (or any
subsequent comparable replacement ratings used by S&P or Moody’s).
	 
	 	1.25	 	“Recurring Sale” means a Cardholder’s written authorization to make one or
more future charges to such Cardholder’s Visa or other non-MasterCard Card account in
connection with the purchase of goods or services which are delivered or performed
periodically.





Page 12 of 22









 






	 	1.26	 	“Reserve Account” means a fund established and managed by SERVICERS to
protect against actual or contingent liability arising from Chargebacks, adjustments, fees
and other charges due to or incurred by SERVICERS.
	 
	 	1.27	 	“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
	 
	 	1.28	 	“Schedules” means the attachments, addenda and other documents, including
revisions thereto, which may be incorporated into and made part of this Agreement.
	 
	 	1.29	 	“Services” means the activities undertaken by SERVICERS and described in this
Agreement to authorize, process and settle all United States Dollar denominated VISA and
MasterCard Card transactions undertaken by Cardholders at CUSTOMER’s location(s) in the
United States, and all other activities necessary for SERVICERS to perform the functions
specified on the Schedules for all other Cards covered by this Agreement.
	 
	 	1.30	 	“Settlement Account” means an account at a financial institution designated
by CUSTOMER as the account to be credited by SERVICERS for Card transactions in accordance
with the terms of this Agreement.
	 
	 	1.31	 	“Transaction Record” means evidence of a purchase of goods or services by a
Cardholder from CUSTOMER using a Card, regardless of whether the form of such evidence is
in paper, electronic or otherwise, all of which must conform to Association Rules.
	 
	 	1.32	 	“Travel Agency” means any third party travel agency authorized by CUSTOMER to
accept Card transactions on behalf of CUSTOMER.
	 
	 	1.33	 	“Event of Default” means the occurrence of any of the events (i through ix)
outlined in Section 19.3 of this Agreement which shall remain uncured past the expiration
of any applicable cure period.
	 
	 	1.34	 	“Termination Reserve Account” means a fund established and managed by
SERVICERS, following provision of notice of termination by either party, to protect
SERVICERS against actual or contingent liability arising from Chargebacks, adjustments,
fees and other charges due to or incurred by SERVICERS.





Page 13 of 22









 





SCHEDULE A





	1.	 	[Redacted]:






	 	a)	 	[Redacted]: The [Redacted]per [Redacted]and per
[Redacted]will be [Redacted]plus [Redacted]plus a
[Redacted]
	 
	 	 	 	Assumptions:






	 	i)	 	An [Redacted]
	 
	 	ii)	 	An [Redacted]






	 	b)	 	[Redacted]processing [Redacted]portion of the [Redacted]charged
for each [Redacted]and [Redacted]transaction, as stated in Section 1(a)
above, will be [Redacted]:






	 	i)	 	[Redacted]in any applicable [Redacted]levied by any federal,
state or local authority related to the delivery of the services provided by
[Redacted]when such [Redacted]are included in the[Redacted]; and
	 
	 	ii)	 	[Redacted]portion of the [Redacted]may be adjusted
[Redacted]in the event Customer [Redacted]its method of
[Redacted]to [Redacted]or in the event [Redacted]average ticket
or annual volume for any of the [Redacted]services provided in this
[Redacted]of the[Redacted] stated in Section 1 (a) above or
[Redacted]






	 	c)	 	Subject to Section 10.1 and Section 12.3 of the Agreement, [Redacted]of the
[Redacted]shall be [Redacted]or less, adjustments, as applicable, to be made on
a monthly basis. For sake of clarification of the foregoing, this Section 1(c) does not apply
to[Redacted] (as defined in Section 2(d) below).






	2.	 	Other Fees for Services and Special Terms:






	 	a)	 	[Redacted]The following fees will be charged for [Redacted]
	 
	 	 	 	     [Redacted]
	 
	 	 	 	     [Redacted]
	 
	 	b)	 	[Redacted]
	 
	 	c)	 	T&E — Other Card Services. See Attachment II to Schedule A and Schedule B, attached
hereto.
	 
	 	d)	 	[Redacted]Transactions. CMS will
[Redacted]Customer’s[Redacted]denominated VISA and MasterCard transactions
(“[Redacted]Transactions”). CMS will settle each [Redacted]Transaction in United
States Dollars applying the conversion rate utilized by VISA and MasterCard, as applicable, at the
time of settlement. Customer will be charged the Bankcard Processing Fee set forth in Section 1(a)
above for its [Redacted] transactions. A [Redacted]customer’s cardholder statement
should reflect currency in a manner consistent with the cardholder’s agreement with the Card
issuing bank.
	 
	 	e)	 	[Redacted]Transactions. CMS will authorize and settle customer’s [Redacted]club
transactions at Customer’s
[Redacted]clubs. Customer will be charged the authorization and
settlement fees shown on Attachment II of schedule a for such transactions.






	3.	 	Payment Plan:






	 	a)	 	Settlement for MasterCard and Visa is daily each Business Day.
	 
	 	b)	 	Payment Method is Bankwire. Wire instructions:
	 
	 	 	 	[Redacted]
	 
	 	c)	 	Statement cycle for MasterCard and Visa is [Redacted]





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGE FOLLOWS]



All payments to Customer shall be by Fedwire (bankwire) and shall normally be electronically
transmitted directly to the demand deposit account indicated below, or any successor account
designated to receive provisional funding of Customer’s Card sales pursuant to the Agreement
(‘Settlement Account”). Neither Bank nor CMS can guarantee the timeliness with which any payment
may be credited by Customer’s depository institution (“Depository”).




Page 14 of 22









 





	 	 	 	 	 	 	 
	AMERICA WEST AIRLINES, INC.	 	JP MORGAN CHASE BANK
	 	 	 
	(“AWA”)	 	(“BANK”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	Date:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	THE LEISURE COMPANY	 	CHASE MERCHANT SERVICES, L.L.C.
	 	 	 
	(“TLC”)	 	(“CMS”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	Date:

	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 





Page 15 of 22









 





ATTACHMENT I TO SCHEDULE A

FOR

AMERICA WEST AIRLINES, INC.




(See Attached)




Page 16 of 22









 





[Redacted]




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
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[Redacted]





 




			
	1	 	[Redacted]
	 
	2	 	[Redacted]
	 
	3	 	[Redacted]
	 
	4	 	[Redacted]
	 
	5	 	[Redacted]
	 
	6	 	[Redacted]





Page 17 of 22









 





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Page 18 of 22









 





ATTACHMENT II TO SCHEDULE A




T&E — Other Card Services [Redacted]





	1)	 	[Redacted]






	 	a)	 	America West Airlines, Inc.





	 	 	 	 	 	 	 
	 

	 	[Redacted]
	 	[Redacted]
	 	 
	[Redacted]

	 	[Redacted]
	 	[Redacted]	 	 
	[Redacted]

	 	[Redacted]
	 	[Redacted]	 	 





[Redacted] [Redacted] [Redacted] [Redacted] [Redacted][Redacted][Redacted]

[Redacted][Redacted][Redacted] [Redacted]





	 	b)	 	The Leisure Company




All Authorizations [Redacted]



[Redacted] [Redacted] [Redacted][Redacted][Redacted] [Redacted] [Redacted][Redacted] [Redacted]





	2)	 	Other [Redacted]




[Redacted][Redacted][Redacted] [Redacted]




	 	 	 	 	 	 	 
	AMERICA WEST AIRLINES, INC.	 	JP MORGAN CHASE BANK
	 	 	 
	(“AWA”)	 	(“BANK”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	THE LEISURE COMPANY	 	CHASE MERCHANT SERVICES, L.L.C.
	 	 	 
	(“TLC”)	 	(“CMS”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 





Page 19 of 22









 





Schedule B




Special Terms and Considerations





	•	 	CMS will [Redacted]
	 
	•	 	CMS will [Redacted]
	 
	•	 	CMS will [Redacted]





	 	 	 	 	 	 	 
	AMERICA WEST AIRLINES, INC.	 	JP MORGAN CHASE BANK
	 	 	 
	(“AWA”)	 	(“BANK”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	THE LEISURE COMPANY	 	CHASE MERCHANT SERVICES, L.L.C.
	 	 	 
	(“TLC”)	 	(“CMS”)
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 





Page 20 of 22









 





SCHEDULE C





	1.	 	Direct obligations of the US Treasury such as Treasury Bills, Treasury
Notes and Treasury Bonds.
	 
	2.	 	Securities issued or guaranteed by the US Government, its
agencies or instrumentalities Obligations issued by US Government agencies
and instrumentalities include such obligations as Government National Mortgage
Association pass-through certificates (supported by the full faith and credit of
the United States); securities of Federal Home Loan Banks (supported by the right
of the issuer to borrow from the Treasury); and Federal National Mortgage
Association obligations (sponsored by the US Government and supported by the
credit of the instrumentality).
	 
	3.	 	Certificates of Deposit (“CD’s”), Time Deposits (“TD’s”) and
Bankers’ Acceptances (“BA’s”) CD’s are short-term negotiable obligations of
commercial banks. TD’s are non-negotiable deposits maintained in banking
institutions for specified periods of time at stated interest rates. BA’s are
time drafts drawn on commercial banks, usually in connection with international
transactions. CD, TD and BA investments are limited to those instruments issued
by institutions with total assets in excess of $[Redacted], and where the long
term obligations are rated “A” or better by Moody’s and “A” or better by Standard
& Poor’s and the short-term deposits are rated A-1 and P-1, respectively.
	 
	4.	 	Commercial Paper Short-term, unsecured, negotiable
promissory note of a domestic or foreign company. Commercial paper must have a
rating of A1 and/or P1 or better by any two Nationally Recognized Statistical
Rating Organizations (NRSRO).
	 
	5.	 	Repurchase Agreements Transactions in which the purchaser
acquires a security and simultaneously agrees to sell it back at a higher price,
normally within seven days. Such agreements may be entered into with domestic
and foreign organizations, including banks and broker-dealers. The underlying
securities must be securities which are eligible for direct investment by the
Company.
	 
	6.	 	Money Market Mutual Funds (“Money Funds”) No-load mutual
funds which seek to maximize current income for shareholders consistent with the
preservation of capital by investing in a diverse portfolio of high quality,
short-term instruments that maintain compliance with Rule 2a-7 of the Investment
Company Act of 1940. The funds strive to maintain a constant share price and
offer daily purchase and redemption privileges.
	 
	7.	 	Fixed and Floating Rate Corporate Debentures and Medium-Term
Notes Short to medium-term debt issuances of major corporations and
financial institutions. The ratings of the issue/issuer must have a long term
debt rating of [Redacted]or better by any two NRSRO.
	 
	8.	 	Asset-backed Securities Securities collateralized with
consumer receivables, such as automobile loans, credit card receivables, or home
equity loans, which are owned by the issuer, but placed with a trustee for the
benefit of the investor. Asset-backed securities must be rated [Redacted]by
Moody’s Investor Services or [Redacted]by S&P with a maximum final stated
maturity of [Redacted]





Page 21 of 22









 






	9.	 	Mortgage Pass-Through Securities Securities collateralized
with residential mortgage loans, the principal and interest payments of which are
distributed, or “passed-through” to the investor. Many of these securities are
issued by agencies of the federal government, including GNMA and FHLMC. These
securities must be issued by US government agencies with a maximum stated final
maturity of five (5) years.
	 
	10.	 	Collateralized Mortgage Obligations (CMOs) Classes of
bonds which redistribute the cash flows of mortgage securities (and whole loans)
to create securities which have different levels of prepayment risk, as compared
to the underlying mortgage securities. CMOs must be rated [Redacted]with stable
cash flow characteristics and a duration of [Redacted] or less under all possible
prepayment scenarios.
	 
	11.	 	Tax-Exempt and Tax-Advantages Securities Limited to issues
rated [Redacted]or [Redacted]or higher.






	 	a.	 	Tax-exempt commercial paper Short term
commercial paper issued by tax-exempt entities.
	 
	 	b.	 	Variable rate demand obligations Long-term
obligations of tax-exempt entities which have variable interest rates, and
which reset periodically based on a specified index and formula. Because
these obligations always have current market interest rates, they trade
near their par value, and thus, are considered short-term instruments.
	 
	 	c.	 	Fixed rate, fixed maturity municipal notes,
including long-term notes with a “put” at the sole option of the investor.
	 
	 	d.	 	“Dutch auction” rate preferred stock
(including tax-exempt trusts) rated AA or higher. These are preferred
stock issues, the dividend rate of which is established periodically by
means of a Dutch auction, wherein all investors receive the highest
dividend rate which “clears” the market. Under current tax law, portions
of dividends received by the Company from investments in preferred stock
are subject, under certain condition, to exclusion from income for
purposes of calculation of corporate income tax.
	 
	 	 	 	The dividends from preferred stock issued by tax-exempt trusts are
[Redacted]free from federal corporate income tax.






	12.	 	Any and all investments are specifically limited to those types of
investments noted above.
	 
	13.	 	All investments must be denominated in US dollars.






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