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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
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)
June 28, 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
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______________________________________________________________
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
_________________________________________________________________
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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
________________________________________________________________
5
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This amendment No. 2 (this "Amendment") amends and supplements the
Schedule 13D filed on May 16, 1994, as amended and supplemented by the
amendment thereto filed on May 20, 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 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
On June 28, 1994, Belmont Capital Partners II, L.P., Fidelity Copernicus
Fund, L.P., and Belmont Fund, L.P. entered into a new Subscription Agreement
with AmWest (the "New Fidelity Subscription Agreement"). The New Fidelity
Subscription Agreement replaces and supersedes in its entirety the previous
Subscription Agreement among such parties dated April 7, 1994, a copy of which
was filed as an exhibit to the Schedule 13D. A copy of the New Fidelity
Subscription Agreement is filed as an Exhibit hereto and incorporated herein
by this reference.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 -- Joint Filing Agreement
Exhibit 2 -- New Fidelity Subscription 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: July 12, 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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EXECUTION COPY
SUBSCRIPTION AGREEMENT
AmWest Partners, L.P.
201 Main Street
Suite 2420
Fort Worth, Texas 76102
Attention: AmWest Genpar, Inc., General Partner
Gentlemen and Ladies:
Reference is made to that certain Third Revised
Investment Agreement dated April 21, 1994 and attached hereto
as Exhibit A and incorporated herein by reference, as the same may
be amended from time to time (the "Investment Agreement") by and
between AmWest Partners, L.P. (the "Partnership"), a limited
partnership organized and existing under the laws of the State of
Texas, with AmWest Genpar, Inc., a corporation organized and existing under
the laws of the State of Texas, as its general partner (the "General
Partner"), and America West Airlines, Inc. ("America West"). Capitalized
terms used herein and not otherwise defined herein are used herein as
defined in the Investment Agreement.
Pursuant to and subject to the terms and conditions of
the Investment Agreement and the First Amended and Restated Plan
of Reorganization dated June 13, 1994 (the "Plan"), which was filed
in the Chapter 11 case of America West, America West, or its successor
as reorganized pursuant to Chapter 11 of the U.S. Bankruptcy Code ("New
America West"), has agreed to issue to the Partnership, and the Partnership
has agreed to purchase from America West, certain Securities of New
America West. In furtherance of its obligations under the Investment
Agreement, the Partnership has agreed to assign to Belmont Fund, L.P.,
Fidelity Copernicus Fund, L.P., and Belmont Capital Partners, L.P. (each,
a "Fund"), or other funds or accounts managed or advised by Fidelity
Management Trust Company or its affiliates ("Fidelity") (collectively,
the "Investor"), certain of the Partnership's rights to purchase from New
America West and Investor has agreed to acquire from New America West on
the terms and conditions set forth herein, the Securities specified herein.
In consideration of the premises and mutual covenants herein
contained, Investor and the Partnership hereby agree as follows:
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1. Acquisition of Securities
(a) Pursuant to the Investment Agreement and the Plan, the
Partnership has agreed, subject to the terms and conditions set forth
therein, to purchase certain of the Securities from New America West for
an aggregate purchase price of $214,857,000, subject to adjustment as
provided therein (the "Purchase Price"). Investor has agreed and hereby
agrees to accept an assignment from the Partnership of certain of its rights
under the Investment Agreement and the Procedures Agreement, including the
right to purchase such Securities, and Investor has agreed to assume certain
of its obligations in respect thereof.
Upon the occurrence of the Confirmation Date, the General Partner
shall notify Investor of such event and of the Securities to be purchased by
Investor at the Effective Date. Upon the Effective Date, Investor shall,
against delivery of the certificates representing such Securities, purchase
the Securities of New America West set forth below:
(i) Investor shall, for a purchase price of $22,143,000, acquire
2,400,608 shares of Class B Common and 422,748 Warrants;
(ii) Investor shall, for a purchase price of not less than
$100,000,000 (and not more than $130,000,000, as determined by the
Company prior to the Effective Date], acquire, pursuant to a Note
Purchase Agreement reasonably satisfactory to Investor and under an
indenture reasonable satisfactory to Investor, a like principal amount
of Notes to be issued by New America West pursuant to the Investment
Agreement, and shall be paid a fee of 1% of the total purchase price
therefor by New America West for consummating such purchase;
(iii) Investor shall, for an amount equal to 20.38% of the cost of
any shares of Class B Common, if any, which the Partnership is required
to purchase pursuant to clause (B) of the proviso to Section 4(a)(2)(i)
of the Investment Agreement, purchase 20.38% of the shares of Class B
Common purchased pursuant to said Section; and
(iv) Investor shall purchase the first $75,000,000 in value of the
shares of Class B Common, if any, required to be purchased by the
Partnership pursuant to Section 4(a)(2)(ii) of the Investment Agreement;
provided, that in no event shall Investor be required to purchase more
than the aggregate number of shares of Class B Common required to be
purchased pursuant to such Section; and
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(v) Investor shall purchase from the Company, the Partnership or
Lehman Brothers, Inc. ("Lehman"), 20.38% of any shares of Class B Common
which the Partnership or Lehman has the right to and elects to acquire
pursuant to the Plan in respect of the 2,322,000 shares of common stock
of America West which are owned by Lehman as of the date hereof, on such
terms as provided in the Plan for such acquisition.
(b) Investor acknowledges, and the General Partner agrees, that
the closing of the purchase of the Securities of New America West is subject
to the satisfaction of the conditions precedent as described in Section 8 of
the Investment Agreement. The Partnership will not waive any of such
conditions precedent without the prior written approval of Investor, which
approval will not be withheld unreasonably, and will not make modify or amend
the Investment Agreement or the Procedures Agreement in any material respect,
agree to provisions of the Plan, or enter into any other agreements with America
West or New America West prior to the Effective Date or earlier termination of
the Investment Agreement, without Investor's prior consent, which consent will
not be withheld unreasonably. This Subscription Agreement will be returned
promptly to Investor, together with all investment documents theretofore
delivered by Investor, upon the earlier of (i) the termination of the
Investment Agreement or (ii) December 31, 1994, if the Effective Date shall
not have occurred by such date.
2. Acceptance of Subscription
The General Partner, on behalf of the Partnership, shall accept
this Subscription Agreement by executing, and later delivering to Investor,
executed copies of this Subscription Agreement and the Acceptance of
Subscription attached hereto. This Subscription Agreement is delivered
irrevocably but shall terminate upon the earlier of (i) the termination of
the Investment Agreement or (ii) December 31, 1994, if the Effective Date
shall not have occurred by such date.
3. Representations and Warranties of each Fund
In order to induce the General Partner and the Partnership to accept
this Subscription Agreement, each Fund severally but not jointly hereby
represents and warrants as follows as to itself:
(a) Investment Intent. The Fund is acquiring the Securities for
its own account, for investment, and not with the view to a sale of such
interest in connection with any distribution thereof, except in compliance
with the Securities Act of 1933, as amended, and subject to the disposition
of Securities being at all times within such Fund's control, except
as otherwise expressly provided herein or in the Investment Agreement;
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(b) Sophistication. The Fund, alone or with its professional
advisors, has the educational, financial, and business background and
knowledge so as to be capable of evaluating the merits and risks of an
investment in New America West, and has the capacity to protect its own
interests in making this investment;
(c) Registration and Transfer. The Fund understands that,
pursuant to the Investment Agreement and the Plan, New America West shall
provide registration rights with respect to the Securities under the Securities
Act of 1933, as amended (the "Securities Act"). Nonetheless, the Fund
understands that there may be restrictions on the transferability of the
Securities. The Fund understands that prior to the Effective Date there
will be no public market for the Securities and that it is possible that no
public market will exist at any time thereafter;
(d) Advisors. The Fund has been afforded the opportunity to seek
and rely upon the advice of its own attorneys, accountants, or other
professional advisors in connection with an investment in New America West
and the execution of this Subscription Agreement;
(e) Valid Existence. The Fund has been duly organized and is
validly existing and in partnership good standing under the laws of its
jurisdiction of organization, with full power and authority to own its
property and conduct its business as currently conducted and to execute,
deliver and perform this Subscription Agreement;
(f) Binding Obligation. The execution and delivery of this
Subscription Agreement by the Fund and the Fund's performance hereof and the
transactions contemplated hereby have been duly authorized by the requisite
action on the part of the Fund, and no other authorization or consent is
required for the execution and performance hereof;
(g) No Conflict. The execution, delivery and performance by the
Fund of this Subscription Agreement does not violate, conflict with, or
constitute a default under the Fund's Articles of Incorporation, By-Laws,
partnership agreement, or any other corporate or partnership document or
resolution, any agreement or commitment to which it is a party, or with
respect to which any of its assets are bound, or, subject to obtaining the
Confirmation Order and the Regulatory Approvals contemplated by Section 8(b)
of the Investment Agreement, require any governmental consent or approval;
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(h) Brokers. The Fund has not used or retained any broker, agent,
finder, syndicator or other intermediary with respect to its acquisition of
Securities or the events or transactions contemplated by this Subscription
Agreement;
(i) Financial Capacity. The Fund has the financial capacity to
make the investment required of it under this Subscription Agreement; and
(j) Citizenship. The Fund is, and shall at all times be, a
"citizen of the United States" as that term is defined in Section 101(6) of
the Federal Aviation Act of 1958, as amended (49 App. U.S.C. Seciton
1301(16)), or shall elect to suspend its voting rights in respect of
all shares of Class B Common owned by it during any period in which
the representation contained in this subsection (j) shall be invalid.
The representations and warranties made pursuant to this Section 3
shall survive the execution and delivery of this Agreement.
4. Other Business Ventures
Each of the Partnership and Investor agrees that notwithstanding
anything to the contrary contained in or inferable from this Subscription
Agreement or any other statute or principle of law, neither Investor nor
the Partnership nor any of their shareholders, directors, management
companies, officers, employees, partners, agents, family members, or
affiliates (each an "Affiliate") shall be prohibited or restricted in
any way from investing in or conducting, either directly or indirectly,
and may invest in and/or conduct, either directly or indirectly, businesses
of any nature whatsoever, including the ownership and operation of businesses
or properties similar to or in the same geographical area as those held by
the Partnership. Investor, the Partnership or their Affiliates may, without
owing any obligation to Investor, the Partnership or any Affiliate, purchase
and otherwise deal in securities of any type of American West or New America
West and each may participate in, commit funds to, or otherwise become
involved with any other entity which may attempt to acquire control of any
competitor of America West or New America West; provided that prior to the
Effective Date or earlier termination of the Investment Agreement, neither
Investor, the Partnership nor any of their Affiliates shall, without the
consent of the Partnership, on the one hand, and Investor, on the other
hand, commit funds to, or otherwise become involved with any other entity
which may attempt to acquire control of America West. Any investment in or
conduct of any such businesses by Investor, the Partnership or any
Affiliate shall not give rise to any claim for an accounting by the
others or any right to claim any interest therein or the profits therefrom.
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5. Indemnification
Investor hereby agrees to indemnify, defend, and hold harmless the
Partnership and its partners and all of their respective members, directors,
officers, employees, and agents (collectively, the "Indemnified Parties") from
and against its allocable portion (based on relative fault of Investor, on the
one hand, and the Indemnified Parties, on the other hand) of any and all loss,
damage or liability (including without limitation, any and all attorneys'
fees, costs, and other amounts reasonably incurred by any of them in
investigating, preparing or defending against any claim, litigation, or other
legal action threatened or initiated) which are found in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from or arisen out of (a) a breach by Investor in any material respect of any
representation, warranty or obligation of Investor contained in this
Subscription Agreement or (b) notwithstanding Section 2.06 of the Limited
Partnership Agreement of the Partnership, any action or inaction of Investor
or any of its affiliates giving rise to a breach by the Partnership of any of
its obligations under the Investment Agreement or the Procedures Agreement.
6. No Assignment or Transfer; Third Party Beneficiary
(a) Investor agrees not to transfer or assign this Subscription
Agreement or any of its rights, duties or obligations hereunder without the
prior written consent of the General Partner and America West, which consent
will not be withheld unreasonably, except that no such consent will be
required to be obtained for a transfer or assignment to one or more funds or
accounts managed or advised by Fidelity or any of its affiliates as to which
the representations, warranties and covenants contained herein are true and
accurate in all material respects as of the date of such transfer and the
Effective Date, and acknowledges that any attempted transfer or assignment in
violation of the foregoing shall be void.
(b) Investor acknowledges that America West is an express third
party beneficiary of the provisions of Section I of this agreement and may sue
Investor directly to enforce such obligations upon any breach by (i) Investor
of its obligations thereunder and (ii) the Partnership of any of its
obligations under the Investment Agreement or the Procedures Agreement, which
breach gives rise to a cause of action against the Partnership under the
applicable agreement; provided, that upon any such breach by the Partnership,
Investor shall only be liable for 20.38% of any damages payable in respect
thereof.
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7. Representations, Warranties, and Covenants of the Partnership
In order to induce Investor to execute this Subscription Agreement,
the Partnership hereby represents, warrants and covenants as follows:
(a) Valid Existence. The Partnership has been duly organized and
is validly existing and in good standing under the laws of its jurisdiction of
organization, with full power and authority to execute this Subscription
Agreement and the Investment Agreement;
(b) Binding Obligations. The execution and delivery of this
Subscription Agreement, the Investment Agreement and the Procedures Agreement
by the Partnership and its performance hereof and the transactions
contemplated hereby have been duly authorized by the requisite action on the
part of the Partnership and no other authorization or consent is required for
the execution and performance hereof;
(c) Deliveries. The Partnership will, promptly after its receipt
thereof, deliver to Investor (i) 20.38% of any additional payment received by
the Partnership from America West pursuant to Section 3 of the Procedures
Agreement, and (ii) copies of any and all documents and notices received by
the Partnership from America West or otherwise in respect of the transactions
contemplated by the Investment Agreement and the Procedures Agreement;
(d) Assignment of Rights. The Partnership hereby assigns to
Inventor on a shared basis, subject to performance by Investor of its
obligations and duties hereunder, the rights of the Partnership under the
Investment Agreement and Procedures Agreement, including, without limitation,
the right to sue to enforce any breach thereof; provided, that Investor shall
not, without the prior consent of the Partnership, contact or otherwise deal
directly with America West prior to the Effective Date in connection with the
operation of such Agreements. The Partnership agrees that (i) Investor has
the ability to cause the Partnership to give any notices permitted to be given
by it to America West pursuant to the provisions of the Investment Agreement
or the Procedures Agreement and (ii) all matters which, pursuant to the
provisions of either Agreement, require the approval or consent of the
Partnership may not be approved or consented to unless Investor, in the
reasonable exercise of its own business judgment and any relevant internal,
legal or other restrictions or policies applicable to it, so approves or
consents to such matter; and
(e) Public Announcements. The Partnership shall not, without the
prior consent of Fidelity, which consent will not be withheld unreasonably,
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issue or consent to the issuance of any press release or other public
announcement which mentions any Fund or Fidelity or Investor
or any affiliate of any of them.
8. Expenses
(a) Reimbursement of Expenses. Investor shall be entitled to a
reimbursement of its Expenses (as such term is defined in the Limited
Partnership Agreement of the Partnership) incurred in connection with the
transactions contemplated by this Subscription Agreement, the Investment
Agreement and the Procedures Agreement upon presentation to the Partnership
of appropriate documentation, setting forth in reasonable detail the amounts
for which reimbursement is sought and the basis on which the charges were
incurred.
(b) Contribution to Expenses. Investor agrees to pay to the
Partnership, within 15 days after request, 20.38% of the Expenses incurred by
Investor, the Partnership and its partners which are not reimbursed by America
West pursuant to Section 2 of the Procedures Agreement; provided, under no
circumstances will Investor be liable for payment of the Expenses of the
partners or the Partnership incurred in connection with the negotiation and
execution of the Limited Partnership Agreement of the Partnership.
9. Notices
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage
prepaid) or by prepaid express courier to the parties at the following
addresses or facsimile
numbers:
If to Investor: Fidelity Management Trust Company
82 Devonshire Street, MS F7E
Boston, Massachusetts 02109
Attn: Daniel J. Harmetz
Fax Number: (617) 227-2536
with a copy to: Fidelity Management Trust Company
82 Devonshire Street, MS F7D
Boston, Massachusetts 02109
Attn: Wendy Schnipper Clayton, Esq.
Fax Number: (617) 570-7688
and a copy to: Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Laura Hodges Taylor, P.C.
Fax Number: (617) 523-1231
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If to the Partnership: AmWest Partners, L.P.
201 Main Street, Suite 2420
Fort Worth, Texas 76102
Attention: James J. O'Brien
Fax Number: (817) 871-4010
with a copy to: Arnold & Porter
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Attn: Richard P. Schifter
Fax Number: (202) 872-6720
10. Governing Laws and Venue
This Agreement and the rights and obligations of Investor and the
Partnership hereunder shall be interpreted, construed, and enforced in
accordance with the laws of the State of Texas, without regard to its
conflicts of laws provisions.
11. Miscellaneous
(a) Rules of Construction. The general rule of construction for
interpreting a contract, which provides that the provisions of a contract
should be construed against the party preparing the contract, is waived by
Investor. Investor acknowledges that it was represented by separate legal
counsel in this matter who participated in the preparation of this
Subscription Agreement or it had the opportunity to retain counsel to
participate in the preparation of this Subscription Agreement but chose not
to do so.
(b) Entire Agreement. This Subscription Agreement, including all
exhibits to this Subscription Agreement and, if any, exhibits to such
exhibits, contains the entire agreement among the parties relative to the
matters contained in this Subscription Agreement.
(c) Waiver. No consent or waiver, express or implied, by Investor
or the Partnership to or for any breach or default by the other party in the
performance by such other party of its obligations under this Subscription
Agreement shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such other party of the same or
any other obligations of such other party under this Subscription Agreement.
Failure on the part of any party to complain of any act or failure to act of
the other party or to declare the other party in default, regardless of how
long such failure continues, shall not constitute a waiver by such party of
its rights hereunder.
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(d) Severability. If any provision of this Subscription Agreement
or the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Subscription Agreement and
the application of such provisions to other persons or circumstances shall not
be affected thereby, and the intent of this Subscription Agreement shall be
enforced to the greatest extent permitted by law.
(e) Benefits and Assignment. Subject to the restrictions on
transfers and encumbrances set forth in this Subscription Agreement, this
Subscription Agreement shall inure to the benefit of and be binding upon the
parties and their respective legal representatives, successors, and assigns.
Whenever, in this Subscription Agreement, a reference to any party is made,
such reference shall be deemed to include a reference to the legal
representatives, successors, and assigns of such party.
(f) Gender, Etc. Unless the context clearly indicates otherwise,
the singular shall include the plural and vice versa. Whenever the masculine,
feminine, or neuter gender is used inappropriately in this subscription
Agreement, this Subscription Agreement shall be read as if the appropriate
gender was used.
(g) Captions. Captions are included solely for convenience of
reference and if there is any conflict between captions and the text of this
Subscription Agreement, the text shall control.
(h) Execution in Counterparts. This Subscription Agreement may be
executed in multiple counterparts, each of which shall be deemed an original
for all purposes and all of which when taken together shall constitute a
single counterpart instrument. Executed signature pages to any counterpart
instrument may be detached and affixed to a single counterpart, which single
counterpart with multiple executed signature pages affixed thereto constitutes
the original counterpart instrument. All of these counterpart pages shall be
read as though one and they shall have the same force and effect as if all of
the parties had executed a single signature page.
(i) Limitation of Liability. The Partnership acknowledges and
agrees that this Agreement in not executed on behalf of or binding upon any
of the trustees, officers, directors, partners or shareholders of any of the
Funds individually, but is binding only upon the assets and property of the
Funds. With respect to all obligations of each Fund arising out of this
Agreement, the Partnership shall look for payment or satisfaction of any claim
solely to the assets and property of such Fund. The Partnership acknowledges
and agrees that the obligations of each of the Funds hereunder is several and
not joint.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the 28th day of June, 1994.
INVESTOR:
BELMONT FUND, L.P., a Bermuda
Limited Partnership
By: Fidelity Management Trust
Company, pursuant to a power
of attorney for Fidelity
International Services
Limited, Managing General
Partner
By: /s/ Judy K. Mencher
Judy K. Mencher
Associate General Counsel
Investor is a Bermuda limited partnership. The Partnership 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 Investor
individually, but are binding only upon the assets and property of the
Investor. With respect to all obligations of the Investor arising out of
this Agreement, the Partnership shall look for payment or satisfaction of
any claim solely to the assets and property of the Investor.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the 28th day of June, 1994.
FIDELITY COPERNICUS FUND, L.P., a
Delaware Limited Partnership
By: Fidelity Copernicus Corp.,
its General Partner
By: /s/ Daniel G. Harmetz
Daniel G. Harmetz
Chief Investment Officer
Investor is a Delaware limited partnership. The Partnership 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 Investor
individually, but are binding only upon the assets and property of the
Investor. With respect to all obligations of the Investor arising out of
this Agreement, the Partnership shall look for payment or satisfaction of
any claim solely to the assets and property of the Investor.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement as of the 28th day of June, 1994.
BELMONT CAPITAL PARTNERS II, L.P., a
Massachusetts Limited Partnership
By: Fidelity Capital Partners II
Corp., its General Partner
By: /s/ Judy K. Mencher
Judy K. Mencher
Associate General Counsel
Investor is a Massachusetts limited partnership. The Partnership
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 Investor individually, but are binding only upon the assets
and property of the Investor. With respect to all obligations of the Investor
arising out of this Agreement, the Partnership shall look for payment or
satisfaction of any claim solely to the assets and property of the Investor.
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EXECUTION COPY
ACCEPTANCE OF SUBSCRIPTION
The Subscription Agreement of the Investor indicated hereinbelow
with respect to the securities of New America West agreed to be acquired by
AmWest Partners, L.P. is hereby accepted.
Dated: June 28, 1994
AMWEST PARTNERS, L.P.
By: AMWEST CENPAR, INC.,
a Texas Corporation
By: /s/ James O'Brien
Title: Vice President
Name of Investor: Belmont Fund, L.P.; Fidelity Copernicus Fund,
L.P.; Belmont Capital Partners. L.P.
Date of Subscription Agreement: June 28, 1994
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