SCHEDULE 13D
Amendment No. 1
America West Airlines, Inc.
common stock
Cusip # 023650104
Filing Fee: No
Cusip # 023650104
Item 1: Reporting Person - Belmont Capital Partners II, L.P. -
(Tax ID: 04-3195259)
Item 4: PF
Item 6: Delaware
Item 7: 1,920,987.5
Item 8: None
Item 9: 1,920,987.5
Item 10: None
Item 11: 1,920,987.5
Item 13: 7.60%
Item 14: PN
Preamble.
This Amendment No. 1 to Schedule 13D (this "Amendment")
should be read in conjunction with the Schedule 13D filed with
the Securities and Exchange Commission on May 16, 1994 (the
"Schedule 13D") by Belmont Capital Partners II, L.P. ("Belmont
II") relating to the common stock, par value $0.25 per share (the
"Common Stock"), of America West Airlines, Inc. (the "Company").
This Amendment amends the Schedule 13D only with respect to those
Items listed below. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the
Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
As contemplated by the Transpacific Letter Agreement, which
is attached as an exhibit to and incorporated by reference into
the Schedule 13D, Belmont II and Transpacific Enterprises, Inc.,
a Washington corporation ("Transpacific"), entered into the
Transpacific Purchase Agreement on May 17, 1994 (the
"Transpacific Purchase Agreement"). At the closing of the
Transpacific Purchase Agreement on May 23, 1994, Belmont II paid
to Transpacific $6,783,976.80, the balance of the amount due for
the Shares (as defined in Item 5). Belmont II used its own
assets to make such purchase and no part of the purchase price
for the Shares consisted of borrowed funds.
Item 5. Interest in Securities of Issuer.
(a) As contemplated by the Transpacific Letter Agreement,
on May 23, 1994, Belmont II acquired pursuant to the Transpacific
Purchase Agreement beneficial ownership of 1,884,438 shares (the
"Common Shares") of Common Stock and 36,549.5 shares (the
"Preferred Shares," together with the Common Shares, the
"Shares") of Series C 9.75% convertible preferred stock, $0.25
par value per share (the "Preferred Stock"), of the Company. The
Preferred Shares are convertible into shares of Common Stock on a
share-for-share basis, subject to certain adjustments. Assuming
conversion of all of the Preferred Shares into shares of Common
Stock, the Shares represent approximately 7.6% of the outstanding
shares of Common Stock.
In addition to Belmont II's beneficial ownership of the
Shares, (i) Fidelity Capital Partners is an indirect beneficial
owner of the Shares as the general partner of Belmont II, (ii)
FMR is an indirect beneficial owner of the Shares through its
ownership of Fidelity Capital Partners, (iii) Edward C. Johnson
3d is an indirect beneficial owner of the Shares through his
indirect controlling interest in Fidelity Capital Partners and
(iv) FMTC is an indirect beneficial owner of the Shares as a
result of its power to direct the voting and disposition of the
Shares pursuant to an Investment Management Agreement with
Belmont II. Neither Fidelity, any Fidelity Entity, nor any of
their respective affiliates nor, to the best knowledge of FMR,
any of the individuals named in Schedule A to the Schedule 13D,
beneficially owns any other shares of Common Stock.
As set forth in Item 6, Belmont II and TPG Partners, L.P., a
Delaware limited partnership ("TPG"), have entered into an
agreement concerning certain matters with respect to the
Preferred Shares and Belmont II, Belmont, Copernicus and AmWest
Partners, L.P., a Texas limited partnership ("AmWest"), have
entered into an agreement concerning the assignment of certain of
AmWest's rights under the Investment Agreement (as defined in
Item 6), but Fidelity and the Fidelity Entities disclaim that
they and TPG and/or AmWest constitute a group within the meaning
of Section 13(d)(3) of the Exchange Act. To the extent that
Fidelity and TPG and/or AmWest constitute a group, however, each
would be deemed to beneficially own the shares of Common Stock
owned by the other. Information concerning TPG's and AmWest's
ownership of shares of Common Stock is contained in a separate
Schedule 13D filed by TPG and AmWest, as amended from time to
time.
(b) Belmont II, acting through Fidelity Capital Partners,
its general partner, has the sole power to vote and dispose of
the Shares. FMTC, pursuant to an Investment Management Agreement
with Belmont II, also has the sole power to vote and dispose of
the Shares. FMR, through its control of Fidelity Capital
Partners and FMTC, could be deemed to have the power to direct
the voting and disposition of the Shares. Edward C. Johnson 3d,
through his controlling interest in FMR, also could be deemed to
have the power to direct the voting and disposition of the
Shares.
(c) Except as stated herein, no transactions in shares of
Common Stock were effected during the past sixty (60) days by
Fidelity, or, to the best of its knowledge, any of the
individuals identified in Schedule A to the Schedule 13D.
(d) Pursuant to the terms of the Transpacific Purchase
Agreement (as defined in Item 6), Belmont II has agreed to pay to
Transpacific the amount of any dividends that Belmont II may
receive as the holder of the Preferred Shares payable in respect
of the period commencing on the date when dividends were last
paid on the Preferred Shares through May 3, 1994.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
As contemplated by the Transpacific Letter Agreement,
Belmont II and Transpacific entered into the Transpacific
Purchase Agreement. The following is a brief description of the
Transpacific Purchase Agreement and is qualified in its entirety
by reference to such agreement, a copy of which is filed as an
exhibit hereto and incorporated herein by reference.
Pursuant to the Transpacific Purchase Agreement, Belmont II
agreed to (i) purchase from Transpacific the Common Shares at a
price of $3.60 per share and the Preferred Shares at a price of
$500,000, (ii) pay to Transpacific the amount of any dividends
that it may receive as the holder of the Preferred Shares payable
in respect of the period commencing on the date when dividends
were last paid on the Preferred Shares through May 3, 1994, and
(iii) keep Transpacific apprised of any information that it
receives from the Company regarding the status of the payment of
any dividends on the Preferred Shares and, at its own expense, to
prosecute in the Company's bankruptcy proceedings any claim for
the payment of dividends with respect to the Preferred Shares.
As contemplated by the agreement in principle disclosed in
Item 6 of the Schedule 13D, on May 20, 1994, TPG and Belmont II
entered into a separate letter agreement (the "TPG Letter
Agreement") concerning certain matters with respect to the
Preferred Shares. The following is a brief description of the
TPG Letter Agreement and is qualified in its entirety by
reference to such agreement, a copy of which is filed as an
exhibit hereto and incorporated herein by reference.
Pursuant to the TPG Letter Agreement, TPG and Belmont II
agreed that (i) TPG will reimburse Belmont II for all expenses
incurred by Belmont II in connection with its prosecution, in the
Company's bankruptcy proceedings, of any claim for the payment of
dividends with respect to the Preferred Shares, and (ii) that
they will cooperate in coordinating such prosecution. With the
exception of the TPG Letter Agreement (to the extent that it may
be deemed to relate to the Common Stock), there are no
understandings, agreements, or arrangements among Fidelity or the
Fidelity Entities and TPG or AmWest with respect to the Common
Stock.
On May 17, 1994, TPG entered into a separate purchase
agreement with Transpacific, the terms of which are substantially
similar to the terms of the Transpacific Purchase Agreement,
except for certain obligations of TPG with respect to a claim of
Transpacific against the Company. Pursuant to such purchase
agreement, on May 20, 1994, TPG purchased from Transpacific an
aggregate of 1,884,438 shares of Common Stock and 36,549.5 shares
of Preferred Stock, which together with the Shares, represent all
of the securities of the Company owned by Transpacific. The
acquisition by TPG of such shares of Common Stock and Preferred
Stock is the subject of a separate Schedule 13D filed by TPG and
AmWest, as amended from time to time.
In connection with the transactions described above, the
Company's Board of Directors adopted certain resolutions
(i) excepting Fidelity, the Fidelity Entities and certain of
their affiliates from the application of Section 203 of the
Delaware General Corporation Law, (ii) approving the "Beneficial
Ownership" (as defined in the Amended and Restated Rights
Agreement between the Company and First Interstate Bank of
Arizona, N.A. dated June 17, 1988 (the "Rights Agreement")) by
Fidelity, the Fidelity Entities and certain of their affiliates
for purposes of the Rights Agreement, (iii) confirming that none
of such entities shall be deemed an "Acquiring Person" or
"Adverse Person" (as such terms are defined in the Rights
Agreement) and that no "Distribution Date," "Share Acquisition
Date," "Business Combination" or "Triggering Event" (as such
terms are defined in the Rights Agreement) shall be deemed to
occur as a result of the acquisition by Fidelity of the Shares,
(iv) agreeing to give Fidelity prior written notice of any
amendment to the resolutions described in clauses (ii) or (iii)
and to provide Fidelity with the opportunity to meet with the
Board to discuss any such amendment prior to its adoption, and
(v) agreeing to indemnify Fidelity, the Fidelity Entities and
certain of their affiliates for any damages incurred by such
entities as a result of or in connection with any amendment to
the resolutions described in clauses (ii) or (iii).
Prior to Belmont II and TPG entering into the purchase
agreements described above, on April 21, 1994, AmWest and the
Company entered into a Third Revised Investment Agreement dated
April 21, 1994 (the "Investment Agreement"). The following is
brief description of certain provisions of the Investment
Agreement and is qualified in its entirety by reference to such
agreement, a copy of which was filed as an exhibit to the
Schedule 13D.
Pursuant to the Investment Agreement, AmWest has agreed, in
connection with and as part of the proposed joint plan of
reorganization of the Company of which AmWest is a co-proponent
(the "Plan") and subject to the satisfaction or waiver of certain
conditions (including confirmation of the Plan by the United
States Bankruptcy Court of the District of Arizona (the
"Bankruptcy Court")), to acquire certain voting securities, debt
securities and warrants of the reorganized company ("New America
West") upon the Company's emergence from bankruptcy. Under the
Investment Agreement, AmWest has the right to assign (in whole or
in part) its rights to acquire such securities and warrants to
other parties. If the transactions contemplated by the
Investment Agreement are successfully completed, AmWest will own
a controlling interest in New America West. The Investment
Agreement also provides that, in connection with the consummation
of the Plan, the members of the Board of Directors of New America
West shall be designated as described in the Investment Agreement
and the certificate of incorporation and bylaws of the Company
will be amended in accordance with the provisions of the
Investment Agreement.
The Plan and an accompanying disclosure statement were filed
with the Bankruptcy Court on May 17, 1994. Fidelity currently
intends to vote any shares of Common Stock it or any Fidelity
Entity owns in favor of the Plan. It is anticipated that upon
consummation of the Plan, (i) the Common Stock will be canceled
and will cease to be authorized to be quoted in the National
Association of Securities Dealers Automated Quotation System and
listed on the Pacific Stock Exchange, and its registration will
be terminated pursuant to Section 12(g)(4) of the Exchange Act,
and (ii) the Preferred Stock will be canceled.
On April 21, 1994, the Company and AmWest entered into a
Third Revised Interim Procedures Agreement (the "Procedures
Agreement"). The following is a brief description of certain
provisions of the Procedures Agreement and is qualified in its
entirety by reference to such agreement, a copy of which was
filed as an exhibit to the Schedule 13D.
During the term of the Procedures Agreement, the Company has
agreed not to initiate or solicit any offer or proposal providing
for, or in furtherance of, any Prohibited Transaction, except
under the circumstances expressly set forth in the Procedures
Agreement, including the provision of notice and information to
AmWest and the opportunity for AmWest to make a matching bid.
Prohibited Transactions are defined in the Procedures Agreement,
subject to certain express exceptions, as (i) transactions
similar to the investment by AmWest contemplated by the
Investment Agreement, including the issuance and sale by the
Company of any of the securities contemplated thereby, (ii) the
designation of the proposal of a plan of any party other than
AmWest as a Lead Plan Proposal (as defined in the Procedures
Agreement), (iii) the execution of a contract with any other
airline which would interfere with the operation of the Alliance
Agreements (as defined in the Procedures Agreement) between
certain affiliates of AmWest and the Company which are
contemplated by the Investment Agreement, (iv) any merger or
consolidation of the Company, (v) any issuance or sale of debt or
equity securities by the Company, or (vi) any sale, encumbrance,
lease or other disposition of material assets of the Company or
interest therein outside the ordinary and normal course of the
Company's business.
On April 7, 1994, Belmont II, Belmont and Copernicus entered
into a Subscription Agreement with AmWest dated April 7, 1994
(the "Subscription Agreement"). The following is a brief
description of the Subscription Agreement and is qualified in its
entirety by reference to such agreement, a copy of which was
filed as an exhibit to the Schedule 13D.
Pursuant to the Subscription Agreement, Belmont II, Belmont
and Copernicus agreed, subject to the terms and conditions
contained therein, to accept an assignment from AmWest of certain
of its rights under the Investment Agreement, including the right
to purchase certain voting securities, debt securities and
warrants of New America West. In addition, Belmont II, Belmont
and Copernicus have agreed that, except with the consent of
AmWest, neither they nor any of their affiliates shall, prior to
the earlier of (i) the consummation of the Plan, or (ii)
termination of the Investment Agreement, commit funds to, or
otherwise become involved with any other entity which may attempt
to acquire control of the Company.
In addition to the securities of New America West to be
purchased pursuant to the Subscription Agreement, certain
Fidelity Entities, which may include Belmont II, Belmont and
Copernicus, may purchase claims against the Company which,
pursuant to the Plan, may be exchangeable for securities of New
America West.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Transpacific Purchase Agreement
Exhibit 2 - TPG Letter Agreement
This statement speaks as of its date, and no inference
should be drawn that no change has occurred in the facts set
forth herein after the date hereof.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Belmont Capital Partners II, L.P.
By: Fidelity Capital Partners II
Corp.,
its general partner
Dated: May 24, 1994 By: /s/ Judy K. Mencher
Name: Judy K. Mencher
Title: Vice President
STOCK PURCHASE AGREEMENT
By and Between
TRANSPACIFIC ENTERPRISES, INC.
and
BELMONT CAPITAL PARTNERS II, L.P.
dated as of May 17, 1994
STOCK PURCHASE AGREEMENT dated as of May 17, 1994 by and
between Transpacific Enterprises, Inc., a corporation organized
and existing under the laws of the State of Washington (the
"Seller") and Belmont Capital Partners II, L.P., a Delaware
limited partnership ("Buyer").
In consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. In addition to the other terms
defined elsewhere herein, as used in this Agreement the following
terms have the meanings indicated:
"Affiliate" means, with respect to any Person, any Person
that, directly or indirectly, controls, is controlled by or is
under common control with such Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power, alone or together with
others, to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this Agreement, as the same may be
amended, supplemented or modified from time to time in accordance
with the terms hereof.
"AWA" means America West Airlines, Inc., a Delaware
corporation, that is currently operating pursuant to Chapter 11
of the Bankruptcy Code, as amended.
"Bankruptcy Code" means the United States Bankruptcy Code,
11 U.S.C. Sections 101 et seq. as in effect from time to time.
"Bankruptcy Court" means the United States Bankruptcy
Court for the District of Arizona.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York City, New York are authorized or
obligated by law to close or any day on which the New York Stock
Exchange shall be closed.
"Case" means the reorganization case of AWA under Chapter
11 of the Bankruptcy Code which is pending in the Bankruptcy
Court, Case No. 91-07505-PHX-RGM.
"Closing" has the meaning specified in Section 2.1 of this
Agreement.
"Closing Date" has the meaning specified in Section 2.1 of
this Agreement.
"Common Stock" means the common stock, par value $0.25 per
share, of AWA.
"Governmental Authority" means any governmental or
quasi-governmental authority, including, without limitation, any
Federal, foreign, state, territorial, county, municipal or other
governmental or quasi-governmental agency, board, branch, bureau,
commission, court, department or other instrumentality or
political unit or subdivision, whether domestic or foreign.
"Lien" means any mortgage, pledge, lien, encumbrance,
easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real
or personal property, or a security interest of any kind
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option, right of
first refusal or other similar agreement to sell and any filing
of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statute or statutes) of any
jurisdiction).
"Officers' Certificate" means, except as otherwise
provided herein, with respect to any Person (other than an
individual), a certificate signed by any two of the chief
executive officer, chief financial officer, chief operating
officer, chief accounting officer or any vice president of such
Person or by any one of such officers and by the secretary or
assistant secretary of such Person.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or other agency or political
subdivision thereof.
"Plan" means the Plan of Reorganization under Chapter 11
of the Bankruptcy Code in connection with the Case that was filed
with the Bankruptcy Court on May 17, 1994 jointly by AWA and
AmWest Partners, L.P.
"Preferred Stock" means the Series C 9.75% preferred
stock, par value $0.25 per share, of AWA.
"Purchase Price" means $7,283,976.80.
"Securities Act" means the Securities Act of 1933 and the
rules and regulations promulgated thereunder, in each case as
amended from time to time.
"Stock" means the Common Stock and Preferred Stock to be
purchased by the Buyer pursuant to this Agreement.
ARTICLE II
PURCHASE OF STOCK
SECTION 2.1. Purchase of Stock. On the terms and subject
to the conditions herein set forth, Seller shall sell, assign and
transfer to the Buyer, and the Buyer shall purchase from the
Seller, 1,884,438 shares of Common Stock and $500,000 face amount
of Preferred Stock. The purchase of the Stock (the "Closing")
shall occur three full Business Days following the day on which
all of the conditions to Closing set forth in Article IV hereof
have been satisfied or waived in accordance with the terms hereof
or at such other date as the Seller and the Buyer may agree. The
date on which the Closing is to occur is herein referred to as
the "Closing Date." The Closing shall take place at the offices
of Arnold & Porter, 1200 New Hampshire Avenue, N.W., Washington,
D.C. or at such other location as the Seller and the Buyer may
agree. The purchase of the Stock contemplated hereby shall be
made at the Closing by the Seller delivering to the Buyer a
certificate or certificates evidencing the Stock in definitive
form together with stock powers executed in blank.
SECTION 2.2. Payment of Purchase Price. The Purchase
Price for the Stock totals $7,283,976.80, which represents the
sum of (i) $6,783,976.80 for the Common Stock to be sold by the
Seller and purchased by the Buyer hereunder ($3.60 per share
times 1,884,438 shares) and (ii) $500,000 for the Preferred Stock
to be sold by the Seller and purchased by the Buyer hereunder.
At the Closing, the Buyer shall pay to the Seller in immediately
available funds by wire transfer to the account designated by the
Seller $6,783,976.80, which represents (i) the Purchase Price
minus (ii) a deposit of $500,000 made heretofore by the Buyer,
receipt of which is hereby acknowledged by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the
Seller. In order to induce the Buyer to enter into this
Agreement and purchase the Stock, the Seller hereby represents
and warrants to, and covenants and agrees with, the Buyer as
follows:
(a) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Washington, with full power and authority to execute, deliver and
perform its obligations under this Agreement, including all
documents executed or to be executed in connection herewith, and
to sell and assign the Stock to the Buyer. This Agreement and
all documents executed or to be executed in connection herewith
have been duly and validly authorized, executed and delivered by
the Seller. Neither the execution, delivery and performance of
this Agreement by the Seller, nor the sale and assignment of the
Stock to the Buyer hereunder, violates, has resulted or will
result in a breach of any of, or constitutes a default (or an
event which with or without notice and/or lapse of time would
constitute a default) under, the Seller's organizational
documents or by-laws, or any agreement or instrument to which the
Seller is a party or by which it is bound, or any statute, order,
rule or regulation of any court or other governmental authority
applicable to it. This Agreement and all documents executed or
to be executed in connection herewith are the legal, valid and
binding obligations of the Seller, enforceable against the Seller
in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors'
rights generally, moratorium laws from time to time in effect,
and by equitable principles restricting the availability of
equitable remedies.
(b) The Seller is the sole legal and beneficial owner and
holder of the Stock and has good and marketable title thereto,
free and clear of any Liens. The Seller has not, directly or
indirectly, pledged, encumbered, assigned, transferred, conveyed,
disposed of or terminated, in whole or in part, any of its right,
title and interest in and to the Stock, or granted any right to
acquire or dispose or vote, such Stock, except to the Buyer
hereunder. Upon the delivery of and payment for the Stock
hereunder, the Seller will deliver to the Buyer good and
marketable title thereto, free and clear of all Liens. As of the
date hereof, the Seller and all Affiliates of the Seller own in
the aggregate 3,768,876 shares of Common Stock and $1,000,000
face amount of Preferred Stock.
(c) The Seller has not entered into any contract,
arrangement or understanding with any Person which will result in
the obligation of the Buyer to pay any finder's fees, brokerage
or agent's commissions or other like payments in connection with
the negotiations leading to this Agreement or the consummation of
the transactions contemplated hereby.
(d) No form of general solicitation or general
advertising including, but not limited to, advertisements,
articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general
advertising, was used by the Seller or any of its representatives
in connection with the sale of the Stock.
(e) Except for certain consents of AWA required pursuant
to those certain Stock Purchase and Sale Agreements between AWA
and the Seller dated as of October 9, 1985 and July 31, 1987,
which consents have been obtained, no registration or filing
with, notice to, or consent or approval of, or other action by,
any Governmental Authority or any other party is required in
connection with the execution, delivery and performance of this
Agreement by the Seller or the sale and assignment by the Seller
of the Stock hereunder.
(f) No proceedings are pending or, to the best of
Seller's knowledge, threatened against or affecting the Seller,
before any Governmental Authority, which, singly or in the
aggregate, could adversely affect any action taken or to be taken
by the Seller under this Agreement.
(g) The Seller is a sophisticated seller with respect to
the Stock, has adequate information concerning the business and
financial condition of AWA and the status of the Case to make an
informed decision regarding the sale of the Stock, and has
independently and without reliance upon Buyer made its own
analysis and decision to enter into this Agreement, except that
the Seller has relied upon the representations, warranties,
covenants and agreements of the Buyer expressly set forth in this
Agreement. The Seller acknowledges that the Buyer has not made
and does not make any representation or warranty, whether express
or implied, of any kind or character except as expressly set
forth in this Agreement. The Seller acknowledges that the
assignment and transfer of the Stock by the Seller to the Buyer
is irrevocable, and that the Seller shall have no recourse to the
Buyer except with respect to remedies resulting from breaches of
this Agreement or as otherwise expressly set forth herein. The
Buyer is not an agent for the Seller. The Seller is aware that
the consideration received hereunder for the sale of the Stock
may differ both in kind and in amount from any distributions made
pursuant to the Plan or any other plan of reorganization
confirmed by the Bankruptcy Court in the Case, or in any
succeeding cases under Chapter 7 of the Bankruptcy Code.
(h) The Seller acknowledges that the Buyer and/or its
Affiliates (i) has agreed to purchase certain securities of AWA
in connection with the Plan, (ii) may purchase certain claims
against AWA which would be entitled to participate in the Plan
and (iii) has negotiated certain transactions with AWA, and that,
as a result of the foregoing actions and otherwise, the Buyer may
possess material non-public information regarding AWA not known
to the Seller (the "Buyer Excluded Information"). The Seller
agrees that the Buyer shall have no liability to the Seller with
respect to non-disclosure of the Buyer Excluded Information,
except to the extent of any breach by the Buyer of its
representations, warranties, covenants and agreements set forth
in this Agreement.
SECTION 3.2 Representations and Warranties of the Buyer.
In order to induce the Seller to enter into this Agreement and to
sell the Stock to the Buyer as contemplated hereunder, the Buyer
hereby represents and warrants to, and covenants and agrees with,
the Seller as follows:
(a) The Buyer (i) is an accredited investor as defined in
Regulation D under the Securities Act, or (ii) by reason of its
business and financial experience, and the business and financial
experience of those Persons, if any, retained by it to advise it
with respect to its investment in the Stock to be acquired by it
hereunder, the Buyer together with such advisors has such
knowledge, sophistication and experience in business and
financial matters as to be capable of evaluating the merits and
risk of the prospective investment, and is purchasing the Stock
for its own account (and/or on behalf of managed accounts that
are purchasing for their own account) and with no present
intention of (i) distributing or (ii) reselling the Stock other
than pursuant to a registration statement under the Securities
Act or an exemption thereunder; provided, however, that the
foregoing shall not constitute a restriction on the Buyer's
ability to dispose of its assets, such ability being at all times
within its control. The Buyer is a sophisticated buyer with
respect to the Stock, has adequate information concerning the
business and financial condition of AWA and the status of the
Case to make an informed decision regarding the purchase of the
Stock, and has independently and without reliance upon Seller
made its own analysis and decision to enter into this Agreement,
except that the Buyer has relied upon the representations,
warranties, covenants and agreements of the Seller expressly set
forth in this Agreement. The Buyer acknowledges that the Seller
has not made and does not make any representation or warranty,
whether express or implied, of any kind or character except as
expressly set forth in this Agreement.
(b) The Buyer is a limited partnership duly organized,
validly existing and in good standing under the laws of the State
of Delaware, with full power and authority to execute, deliver
and perform its obligations under this Agreement, including all
documents executed or to be executed in connection herewith.
This Agreement and all documents executed or to be executed in
connection herewith have been duly and validly authorized,
executed and delivered by the Buyer. Neither the execution,
delivery and performance of this Agreement by the Buyer, nor the
purchase of the Stock by the Buyer hereunder, violates, has
resulted or will result in a breach of any provision of, or
constitutes a default (or an event which with or without notice
and/or lapse of time would constitute a default) under, the
Buyer's organizational documents or any agreement or instrument
to which the Buyer is a party or by which it is bound, or any
statute, order, rule or regulation of any court or other
governmental authority applicable to it. This Agreement and all
documents executed or to be executed in connection herewith are
the legal, valid and binding obligations of the Buyer,
enforceable against the Buyer in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization and similar laws affecting
creditors' rights generally, moratorium laws from time to time in
effect, and by equitable principles restricting the availability
of equitable remedies.
(c) No registration or filing with, notice to, or consent
or approval of, or other action by, any Governmental Authority or
any other party, is required in connection with the execution,
delivery and performance of this Agreement by the Buyer or the
purchase by the Buyer of the Stock.
(d) The Buyer has not entered into any contract,
arrangement or understanding with any Person which will result in
the obligation of the Seller to pay any finder's fees, brokerage
or agent's commissions or other like payments in connection with
the negotiations leading to this Agreement or the consummation of
the transactions contemplated hereby.
(e) No proceedings are pending or, to the best of the
Buyer's knowledge, threatened against or affecting the Buyer
before any Governmental Authority, which, singly or in the
aggregate, could adversely affect any action taken or to be taken
by the Buyer under this Agreement.
(f) The Buyer acknowledges that the Seller may possess
material non-public information regarding AWA not known to the
Buyer (the "Seller Excluded Information"). The Buyer agrees that
the Seller shall have no liability to the Buyer with respect to
non-disclosure of the Seller Excluded Information, except to the
extent of any breach by the Seller of its representations,
warranties, covenants and agreements set forth in this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. Conditions Precedent to Obligations of the
Parties Hereto. The respective obligations of each party to
effect the purchase and sale of the Stock as contemplated hereby
shall be subject to the fulfillment at or prior to the Closing of
each of the following conditions:
(a) Neither the Seller nor the Buyer shall be subject to
any writ, order, decree or injunction of a court of competent
jurisdiction which prohibits or restricts the consummation of the
purchase and sale of the Stock as contemplated hereby.
(b) Each party shall have received all consents, permits
and other authorizations, and made all such filings and
declarations, as may be required from any Person pursuant to any
law, statute, regulation or rule (Federal, state, local and
foreign), or pursuant to any agreement, order or decree to which
such person is a party or to which it is subject, in connection
with the transactions contemplated by this Agreement.
SECTION 4.2. Conditions Precedent to Obligations of the
Buyer on the Closing Date. The obligation of the Buyer to
purchase the Stock as contemplated hereby is subject to the
satisfaction by the Seller or waiver by the Buyer of the
following conditions, at or prior to the Closing:
(a) The representations and warranties made by the Seller
herein shall be true and correct in all material respects on and
as of the date hereof and at and as of the Closing Date, as if
made on and as of such date, and the Seller shall have complied
with and performed all covenants, agreements and conditions
contained herein and in any other document contemplated hereby
required to be complied with or performed by it at or prior to
the Closing, and the Buyer shall have received an Officers'
Certificate of the Seller to the foregoing effect dated as of the
Closing Date. The Buyer also shall have received an Officers'
Certificate of the Seller dated as of the Closing Date,
certifying approval of the execution, delivery and performance by
the Seller into this Agreement and the transactions contemplated
hereby and attaching copies of any resolutions of the
shareholders, Board of Directors or any committee(s) of the
Seller, if any, required for such approval.
(b) The purchase of the Stock by the Buyer hereunder shall
not at the Closing be prohibited by, or contrary to, any laws,
regulations, credit controls (whether voluntary or mandatory) or
similar restraints applicable to the Buyer, shall not be subject
to reserve requirements, shall not be enjoined (temporarily or
permanently) under, prohibited by or contrary to, any injunction,
order or decree applicable to the Buyer, shall not subject the
Buyer to any penalty or other onerous condition under or pursuant
to any applicable law or governmental regulation, and shall be
permitted by the laws and regulations of the jurisdiction to
which Buyer is subject.
SECTION 4.3. Conditions Precedent to Obligations of the
Seller on the Closing Date. The obligation of the Seller to sell
the Stock to the Buyer as contemplated hereby is subject to the
satisfaction by the Buyer or waiver by the Seller of the
condition, at or prior to the Closing, that the representations
and warranties made by the Buyer herein shall be true and correct
in all material respects on and as of the date hereof and at and
as of the Closing Date as if made on and as of such date, and the
Buyer shall have complied with and performed all covenants,
agreements and conditions contained herein and in any other
document contemplated hereby required to be complied with or
performed by it at or prior to the Closing.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Parties Hereto. The Seller
covenants and agrees with the Buyer, and the Buyer covenants and
agrees with the Seller, as follows:
(a) Consents and Approvals. Each party hereto agrees to
use its best efforts to cause all conditions to the obligations
of the parties hereunder to be satisfied and to obtain or cause
to be obtained prior to the Closing Date all necessary consents
and approvals to the performance of the obligations of the
parties under this Agreement.
(b) Filings; Other Action. Subject to the terms and
conditions herein provided, the Seller and the Buyer shall use
their best efforts promptly to take, or cause to be taken, all
other actions and do, or cause to be done, all other things
necessary, proper or appropriate under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement.
(c) Public Announcements. The Buyer and the Seller will
consult with each other before issuing any press release or
otherwise making any public statement with respect to the
exchange of securities contemplated by this Agreement and shall
not issue any such press release or make any such public
statement prior to such consultation, except as may be required
by law.
SECTION 5.2. Covenants of the Seller. The Seller
covenants and agrees with Buyer as follows:
(a) Except in connection with the transactions
contemplated hereby, unless and until this Agreement shall have
been terminated in accordance with its terms for any reason, from
the date hereof until the effectiveness of the Plan or any other
plan or reorganization submitted in the Case, neither the Seller
nor any of its Affiliates shall, directly or indirectly, through
one or more transactions or acting in concert with one or more
Persons, (i) take any action to solicit, initiate submission of
or encourage proposals or offers from any Person relating to any
acquisition, purchase or control of or holding of proxies,
options or warrants for, any capital stock of AWA or any
securities exchangeable for or convertible into the capital stock
of AWA or (ii) acquire, purchase, control or hold proxies,
options or warrants for, any capital stock of AWA or any
securities exchangeable for or convertible into the capital stock
of AWA.
(b) Unless and until this Agreement shall have been
terminated in accordance with its terms for any reason, the
Seller shall not sell, exchange, deliver, assign, pledge,
encumber or otherwise transfer or dispose of any shares of the
Stock, nor grant any right of any kind to acquire, dispose of,
vote or otherwise control in any manner the Stock.
(c) The Seller agrees that it will indemnify and hold
harmless Buyer from and against any and all claims, demands or
liabilities for broker's, finder's, placement agent's or other
similar fees or commissions incurred or alleged to have been
incurred by the Seller or any Person acting on behalf of the
Seller in connection with the sale of the Stock.
SECTION 5.3. Covenants of the Buyer. The Buyer covenants
and agrees with Seller as follows:
(a) If the Closing shall have occurred, the Buyer agrees
that any amount that the Buyer shall receive as dividends on the
Preferred Stock payable in respect of the period commencing on
the date when dividends were last paid on the Preferred Stock
through May 3, 1994 (the "TPE Preferred Stock Dividend") shall be
remitted promptly to the Seller and pending such remittance shall
be held in trust on behalf of the Seller. The Buyer shall keep
the Seller apprised of any information that it receives from AWA
regarding the status of the payment of dividends on the Preferred
Stock. At the expense of the Buyer, the Buyer shall prosecute in
the Case any claim of the holder of the Preferred Stock for the
payment of dividends with respect to the Preferred Stock;
provided, however, that if the Seller desires to assume such
prosecution of any such claim it shall notify the Buyer, and
thereafter shall have the right at its own expense to assume the
prosecution of such claim.
ARTICLE VI
TERMINATION AND ABANDONMENT
SECTION 6.1. Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual consent of the Seller and the Buyer, in
which event the Seller shall promptly return to the Buyer its
deposit of $500,000;
(b) by either the Seller or the Buyer if the purchase and
sale of the Stock contemplated hereby shall not have been
consummated on or before May 31, 1994, which date may be extended
by mutual consent of Seller and Buyer (the "Termination Date").
In the event of any such termination, the Seller shall promptly
return to the Buyer its deposit of $500,000 unless the failure to
consummate the purchase and sale of the Stock by the Termination
Date shall result from a breach by the Buyer of its
representations, warranties, covenants or agreements under this
Agreement, which breach has not been cured prior to the
Termination Date; or
(c) by either the Seller or the Buyer, if any court of
competent jurisdiction in the United States or other governmental
body in the United States shall have issued an order (other than
a temporary restraining order), decree or ruling or taken any
other action restraining, enjoining or otherwise prohibiting the
exchange of the securities contemplated hereby, and such order,
decree, ruling or other action shall have become final and
nonappealable, in which event the Seller shall promptly return to
the Buyer its deposit of $500,000.
SECTION 6.2. Procedure and Effect of Termination. In the
event of termination and abandonment of this Agreement pursuant
to this Article VI, written notice thereof shall forthwith be
given to the other party and this Agreement shall terminate
without further action by any of the parties hereto.
SECTION 6.3. Effect of Termination and Abandonment. In
the event of termination of this Agreement pursuant to this
Article VI, no party hereto (or any of its directors or officers)
shall have any liability or further obligation to any other party
to this Agreement, except that nothing herein will relieve any
party from liability for any intentional breach of this Agreement
and except as contemplated in Section 6.1 with respect to the
return or the retention of the Buyer's deposit, as the case may
be.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Survival of Representations and Covenants.
The respective representations, warranties and covenants of the
parties hereto contained herein or in any certificates or other
documents delivered prior to or at the Closing shall not be
deemed waived or otherwise affected by any investigation made by
any party hereto. The representations and warranties of the
parties hereto contained herein and in such certificates and
documents shall survive the execution and delivery of this
Agreement and the Closing hereunder until the third anniversary
of the Closing Date.
SECTION 7.2. Indemnification by Buyer and Seller.
(a) The Seller agrees to indemnify, defend and hold the
Buyer and its officers, directors, trustees, employees, agents
and controlling persons (collectively, the "Buyer Indemnitees")
harmless from and against any and all expenses, losses, claims,
damages and liabilities which are incurred by or threatened
against the Buyer Indemnitees or any of them (including, without
limitation, reasonable attorneys' fees and expenses), which are
caused by, or in any way result from or relate to, the Seller's
breach of any of the representations, warranties, covenants or
agreements of the Seller set forth in this Agreement.
(b) The Buyer agrees to indemnify, defend and hold the
Seller and its officers, directors, partners, trustees,
employees, agents and controlling persons (collectively, the
"Seller Indemnitees") harmless from and against any and all
expenses, losses, claims, damages and liabilities which are
incurred or threatened against the Seller Indemnitees or any of
them (including, without limitation, reasonable attorneys' fees
and expenses), which are caused by, or in any way result from or
relate to, the Buyer's breach of any of the representations,
warranties, covenants or agreements of the Buyer set forth in
this Agreement.
SECTION 7.3. Confidentiality. Each party agrees that
from and after the Closing Date it shall not disclose the
Purchase Price or the basis on which it was calculated, to any
person or entity, except (i) as may be required by law or
regulation, or by an order, judgment or decree of a court or
other governmental authority of competent jurisdiction, or
(ii) with the consent of the other party, or (iii) to such
party's employees, partners, agents, attorneys, representatives,
officers, trustees, directors, accountants and investment
advisors.
SECTION 7.4. Specific Performance. The parties
acknowledge and agree that the breach of this Agreement by the
Seller would cause irreparable damage to the Buyer and that the
Buyer does not and will not have an adequate remedy at law.
Therefore, the obligations of the Seller under this Agreement,
including without limitation its obligation to sell the Stock to
the Buyer, shall be enforceable by a decree of specific
performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in
connection therewith. Such remedies shall, however, be
cumulative and not exclusive and shall be in addition to any
other remedies which the Buyer may have under this Agreement or
otherwise.
SECTION 7.5. Successors and Assigns. This Agreement,
including, without limitation, the representations, warranties,
covenants and agreements contained herein (i) shall inure to the
benefit of and be enforceable by the parties hereto and their
respective successors, assigns and transferees, and (ii) shall be
binding upon and enforceable against the parties hereto and their
respective successors, assigns and transferees.
SECTION 7.6. Further Assurances. Each of the parties
hereto agrees to execute and deliver, or cause to be executed and
delivered, all such instruments, and to take all such action, as
the other party may reasonably request in order to effectuate the
intent and purposes of, and to carry out the terms of, this
Agreement.
SECTION 7.7. Costs and Expenses. Except as otherwise
expressly provided herein, each party to this Agreement shall
bear its own costs and expenses (including but not limited to
attorneys' fees and expenses) in connection with the transactions
contemplated hereby.
SECTION 7.8. Counterpart Execution. This Agreement may
be executed in any number of counterparts, each of which, when so
executed and delivered, shall be an original, but all of which
together shall constitute one agreement binding all of the
parties hereto.
SECTION 7.9. Amendments; Waivers.
(a) No amendment of any provision of this Agreement shall
be effective unless it is in writing and signed by the Seller and
the Buyer, and no waiver of any provision of this Agreement, nor
consent to any departure by the Seller or the Buyer therefrom,
shall be effective unless it is in writing and signed by the
other party, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
(b) No failure on the part of either party to exercise,
and no delay in exercising, any right hereunder or under any
related document shall operate as a waiver thereof by such party,
nor shall any single or partial exercise of any right hereunder
or under any other related document preclude any other or further
exercise thereof or the exercise of any other right. The rights
and remedies of each party provided herein and in other related
documents (i) are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law, and
(ii) are not conditional or contingent on any attempt by such
party to exercise any of its rights under any other related
document against the other party or any other entity.
SECTION 7.10. Governing Law; Trial by Jury. This
Agreement shall be construed and the obligation of the parties
hereunder shall be determined in accordance with the laws of the
State of Delaware (without regard to any conflict of laws
provisions thereof). THE BUYER AND THE SELLER EACH HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, OR RELATED TO, OR CONNECTED
WITH, THIS AGREEMENT.
SECTION 7.11. All demands, notices, requests, consents,
and communications hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered by courier
service or messenger, sent by overnight delivery service, telex,
or facsimile transmission, or deposited in the mails, by
certified or registered mail, postage prepaid, return receipt
requested, to the following addresses, or such other addresses as
may be furnished hereafter by notice in writing, to the following
parties:
(i) in the case of the Buyer:
Belmont Capital Partners II, L.P.
82 Devonshire Street - F7E
Boston, Massachusetts 02109
Attention: Portfolio Manager
Telecopy No.: (617)570-7458
with a copy to:
Wendy Schnipper Clayton, Esq.
Senior Legal Counsel
82 Devonshire Street - F7D
Boston, Massachusetts 02109
Telecopy No.: (617)570-7688
(ii) in the case of the Seller:
Transpacific Enterprises, Inc.
c/o Ansett Industries Australia, Ltd.
10881 La Tuna Canyon Road
Sun Valley, California 91352
Attention: Gregory R. Quinlan
Telecopy No.: (818)768-7081
with a copy to:
Arnold M. Quittner, Esq.
Stroock & Stroock & Lavan
2029 Century Park East, 18th Floor
Los Angeles, California 90067
Telecopy No.: (310)556-5959
All demands, requests, consents, notices and communication
shall be deemed to have been received if addressed in the manner
described above, (i) at the time of actual delivery thereof by
hand, by courier service or by facsimile transmission, or (ii) if
sent by telex, when a confirmation is received, or (iii) if sent
by overnight delivery service, one (1) Business Day after deposit
thereof with such delivery service, or (iv) if sent by certified
or registered mail, three (3) Business Days after certification
or registration thereof.
SECTION 7.12. Integration. This Agreement, together with
any exhibits hereto and any documents delivered or executed on or
after the date hereof, constitute the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements,
understandings or representations pertaining to the subject
matter hereof, whether oral or written. There are no
representations, warranties or other agreements between the
parties in connection with the subject matter hereof except as
specifically set forth or incorporated herein.
SECTION 7.13. Severability. If any provision of this
Agreement or any other agreement or document delivered in
connection herewith, is partially or completely invalid or
unenforceable in any jurisdiction, then that provision shall be
ineffective in that jurisdiction to the extent of its invalidity
or unenforceability, but the invalidity or unenforceability of
that provision shall not affect the validity or enforceability or
any other provision of this Agreement, all of which shall be
construed and enforced as if that invalid or unenforceable
provision were omitted, nor shall the invalidity or
unenforceability of that provision in one jurisdiction affect its
validity or enforceability in any other jurisdiction.
SECTION 7.14. Captions and Headings. The section
captions and headings in this Agreement are for convenience only
and are intended to be full or accurate descriptions of the
contents thereof. They shall not be deemed to be part of this
Agreement and in no way define, limit, extend or describe the
scope or intent of any provisions hereof.
SECTION 7.15. Limitation of Liability. The Seller
acknowledges and agrees that this Agreement is not executed on
behalf of or binding upon any of the trustees, officers,
directors, partners or shareholders of the Buyer individually,
but are binding only upon the assets and property of the Buyer.
With respect to all obligations of the Buyer arising out of this
Agreement, the Seller shall look for payment or satisfaction of
any claim solely to the assets and property of the Buyer.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed as of the day and year first above
written.
TRANSPACIFIC ENTERPRISES, INC.
By: /s/ Leslie Hong
Name: Leslie Hong
Title: Secretary
BELMONT CAPITAL PARTNERS II, L.P.,
a Delaware Limited Partnership
By: Fidelity Capital Corp.,
its General Partner
By: /s/ Daniel J. Harmetz
Name: Daniel J. Harmetz
Title: Vice President
May 20, 1994
Belmont Capital Partners II, L.P.
82 Devonshire Street - F7E
Boston, Massachusetts 02109
Attention: Portfolio Manager
RE: America West Airlines, Inc.
Ladies and Gentlemen:
Reference is made to Section 2(b) of that certain letter
agreement dated May 5, 1994 between Belmont Capital Partners II,
L.P. ("Belmont") and Transpacific Enterprises, Inc. ("TPE") and
to Section 5.3 of that certain Stock Purchase Agreement dated as
of May 17, 1994 between Belmont and TPE (the "Stock Purchase
Agreement"), in each case referring to the obligation of Belmont
to prosecute in the U.S. Bankruptcy Court proceedings of America
West Airlines, Inc., any claims (the "Claims") for unpaid
dividends relating to the 36,549.5 shares of Series C 9.75%
Preferred Stock, par value $0.25 per share, of America West
Airlines, Inc. (the "Preferred Stock") purchased by Belmont
pursuant to the Stock Purchase Agreement.
In accordance with our understandings, TPG Partners, L.P.
("TPG") agrees to pay all expenses of Belmont (including fees and
disbursements of counsel) incurred in connection with the
prosecution of the claims, and TPG and Belmont agree to
coordinate with each other the prosecution of their related
obligations to TPE regarding the shares of Preferred Stock held
by each of them.
This Agreement (i) shall inure to the benefit of and be
enforceable by Belmont and its successors, assigns and
transferees and (ii) shall be binding upon and enforceable
against TPG and its successors, assigns and transferees. This
Agreement shall be construed and the obligations of TPG and
Belmont hereunder shall be determined in accordance with the laws
of the State of Delaware, excluding such state's conflict of laws
principles. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered,
shall be an original, but all of which together shall constitute
one agreement binding all of the parties hereto.
Please confirm that the foregoing correctly sets forth the
understandings between TPG and Belmont by signing this letter at
the space indicated below and returning one fully signed copy to
the undersigned.
TPG PARTNERS, L.P.
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ Richard Ekleberry
Name: Richard Ekleberry
Title: Vice Presiden
ACCEPTED AND AGREED:
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners II Corp.,
its General Partner
By: /s/ Daniel J. Harmetz
Name: Daniel J. Harmetz
Title: Vice President
