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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
America West Airlines, Inc.
-------------------
(Name of Issuer)
Common Stock, $.25 par value
----------------------------
(Title of Class of Securities)
023650104
--------------
(CUSIP Number)
Victor I. Lewkow, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
----------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 20, 1994
--------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule 13D, and
is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the statement
[ ].
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SCHEDULE 13D
CUSIP No. 023650104
-------------
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Partners, L.P.
75-2473270
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |__|
(b) | x|
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
WC
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |__|
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
_________________________________________________________________
7 SOLE VOTING POWER
1,920,987.5
NUMBER OF
____________________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY NONE
EACH ____________________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 1,920,987.5
____________________________________________________________
10 SHARED DISPOSITIVE POWER
NONE
______________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,920,987.5
_______________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
_______________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6%
________________________________________________________________
14 TYPE OF REPORTING PERSON
PA
________________________________________________________________
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SCHEDULE 13D
CUSIP No. 023650104
-------------
_________________________________________________________________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AmWest Partners, L.P.
75-2529331
_________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |__|
(b) | x|
_________________________________________________________________
3 SEC USE ONLY
_________________________________________________________________
4 SOURCE OF FUNDS
NA (see item 4)
_________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |__|
_________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
_________________________________________________________________
7 SOLE VOTING POWER
None
NUMBER OF
____________________________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 2,322,000
EACH ____________________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH None
____________________________________________________________
10 SHARED DISPOSITIVE POWER
2,322,000
______________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,322,000
_______________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
_______________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.2%
________________________________________________________________
14 TYPE OF REPORTING PERSON
PA
________________________________________________________________
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This amendment No. 1 (this "Amendment") amends and supplements the
Schedule 13D filed on May 16, 1994 (the "Schedule 13D") of TPG Partners, L.P
("TPG") and AmWest Partners, L.P. ("AmWest"), with respect to the Common
Stock, $0.25 par value (the "Common Stock") of America West Airlines, Inc.
(the "Company"). All capitalized terms used in this Amendment and not
otherwise defined herein have the meanings ascribed to such terms 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, TPG and
Transpacific Enterprises, Inc. ("Transpacific") entered into the Transpacific
Purchase Agreement on May 17, 1994. At the Closing of the Transpacific
Purchase Agreement on May 20, 1994, TPG paid Transpacific $6,783,976.80 as the
balance of the amount due for the purchase of the Common Shares and the
Preferred Shares.
Item 5. Interest in Securities of the Issuer
(a) - (b) As contemplated by the Transpacific Letter Agreement, as of
the date hereof, TPG has acquired pursuant to the Tranpacific Purchase
Agreement the sole power to vote and dispose of, 1,884,438 shares (the "Common
Shares") and 36,549.5 shares (the "Preferred Shares") of the Series C 9.75%
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.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer
As contemplated by the Transpacific Letter Agreement, Transpacific and
TPG have entered into the Transpacific Purchase Agreement. A copy of the
Transpacific Purchase Agreement is attached as an Exhibit hereto and
incorporated herein by this reference.
As contemplated by the agreement in principle disclosed in Item 6 of the
Schedule 13D, TPG and Belmont Capital Partners II, L.P. ("Belmont") have
entered into a Letter Agreement executed on the date hereof (the "Belmont
Letter Agreement"), memorializing their agreement that (i) TPG will reimburse
Belmont for all expenses incurred by Belmont 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 such
parties will cooperate in coordinating such prosecution. A copy of the
Belmont Letter Agreement is filed as an Exhibit hereto and is incorporated
herein by this reference.
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Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Joint Filing Agreement
Exhibit 2 -- Transpacific Purchase Agreement
Exhibit 3 -- Belmont Letter Agreement
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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
accurate.
Dated: May 20, 1994
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
AMWEST PARTNERS, L.P.
By: AmWest GenPar, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
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JOINT FILING AGREEMENT
JOINT FILING AGREEMENT, (this "Agreement"), dated as of May 16, 1994
between TPG PARTNERS, L.P., a Delaware limited partnership ("TPG"), and AMWEST
PARTNERS, L.P., a Texas limited partnership ("AmWest").
W I T N E S S T H
WHEREAS, as of the date hereof, each of TPG and AmWest is filing a
Schedule 13D under the Securities Exchange Act of 1934 (the "Exchange Act")
with respect to the Common Stock of America West, Inc., a Delaware corporation
(the "Schedule 13D";
WHEREAS, each of TPG and AmWest is individually eligible to file the
Schedule 13D;
WHEREAS, each of TPG and AmWest wishes to file the Schedule 13D jointly
and on behalf of each of TPG and AmWest, pursuant to Rule 13d-1(f)(1) under
the Exchange Act;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties hereto agree as follows:
1. TPG and AmWest hereby agree that the Schedule 13D is filed on behalf
of each of TPG and AmWest, pursuant to Rule 13d-1(f)(1)(iii) under the
Exchange Act.
2. TPG hereby acknowledges that, pursuant to Rule 13d-1(f)(1)(i) under
the Exchange Act, TPG is responsible for the timely filing of the Schedule 13D
and any amendments thereto, and for the completeness and accuracy of the
information concerning TPG contained therein, and is not responsible for the
completeness and accuracy of the information concerning AmWest contained
therein, unless TPG knows or has reason to know that such information is
inaccurate.
3. AmWest hereby acknowledges that, pursuant to Rule 13d-1(f)(1)(i)
under the Exchange Act, AmWest is responsible for the timely filing of the
Schedule 13D and any amendments thereto, and for the completeness and accuracy
of the information concerning TPG contained therein, and is not responsible
for the completeness and accuracy of the information concerning TPG contained
therein, unless AmWest knows or has reason to know that such information is
inaccurate.
4. TPG and AmWest hereby agree that this Agreement shall be filed as an
exhibit to the Schedule 13D, pursuant to Rule 13D-1(f)(1)(iii) under the
Exchange Act.
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IN WITNESS WHEREOF, the parties have caused this Agreement to executed
individually or by their respective directors hereunto duly authorized as of
the day and year first above written.
TPG PARTNERS, L.P.
By: TPG GenPar, L.P.
General Partner
By: TPG Advisors, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
AMWEST PARTNERS, L.P.
By: AmWest GenPar, Inc.
General Partner
By: /s/ James O'Brien
Name: James O'Brien
Title: Vice President
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STOCK PURCHASE AGREEMENT
By and Between
TRANSPACIFIC ENTERPRISES, INC.
and
TPG PARTNERS, L.P.
dated as of May 17, 1994
<PAGE>
<PAGE>
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 TPG Partners, 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.
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"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.
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"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
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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.
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(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
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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,
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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.
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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,
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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 Approval. 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.
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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
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notify the Buyer, and thereafter shall have the right at its own expense to
assume the prosecution of such claim.
(b) The Seller has a "Claim" (as that term is defined in the
Bankruptcy Code) which it currently estimates at approximately $700,000 as to
which a proof of claim was not submitted in the Case (the "TPE Claim"). The
Buyer agrees to discuss with AWA on behalf of the Seller a proper
quantification of the TPE Claim and thereafter to use its best efforts to
cause the TPE Claim to be treated as an "Allowed Claim" (as that term is
defined in the Plan) under the Case notwithstanding the passage of any bar
date for the submission or resolution of the TPE 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
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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 Indemnities") harmless from and against any and all
expenses, losses, claims, damages and liabilities which are incurred by or
threatened against the Buyer Indemnities 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 indemnities") harmless from and against any
and all expenses, losses, claims, damages and liabilities which are incurred
or threatened against the Seller Indemnities 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,
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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
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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:
TPG Partners, L.P.
201 Main Street, Suite 2420
Forth Worth, Texas 76102
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Attention: James G. Coulter
Telecopy No.: (817) 871-4010
with a copy to:
Richard P. Schifter, Esq.
Arnold & Porter
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Telecopy No.: (202) 872-6720
(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
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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.
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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
TPG PARTNERS, L.P.,
a Delaware Limited Partnership
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By:
Name:
Title:
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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:
Name:
Title:
TPG PARTNERS, L.P.,
a Delaware Limited Partnership
By: TPG Genpar, L.P.
By: TPG Advisors, Inc.
By: /s/ James O'Brien
Name:
Title:
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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 the 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 in any principles. This
Agreement may be executed in any number
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Belmont Capital Partners II, L.P.
May 20, 1994
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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 President
ACCEPTED AND AGREED:
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners II Corp.,
its General Partner
By: /s/ Daniel Harmetz
Name: Daniel Harmetz
Title:
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