SCHEDULE 13D
Amendment No. 2
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. 2 to Schedule 13D (this "Amendment") should be read
in conjunction with the Schedule 13D (the "Schedule 13D") and Amendment No. 1
thereto ("Amendment No. 1") filed with the Securities and Exchange Commission
on May 16, 1994 and May 24, 1994, respectively, 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 and Amendment No. 1 only with respect
to Item 6. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Schedule 13D and Amendment No. 1.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
On May 23, 1994, 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 was filed as an exhibit to Amendment No. 1.
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.
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 was filed as an exhibit to Amendment No. 1.
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 mailed to the
Company's creditors and equity holders on July 5, 1994. Creditors' and equity
holders' ballots accepting or rejecting the Plan must be returned on or before
August 3, 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 cancelled 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 cancelled.
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 June 28, 1994, Belmont II, Belmont and Copernicus entered into a new
Subscription Agreement with AmWest dated June 28, 1994 (the "Subscription
Agreement") replacing the previous agreement among such parties dated April 7,
1994, a copy of which was filed as an exhibit to the Schedule 13D. 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 is
filed as an exhibit hereto and incorporated herein by reference.
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, Belmont II, Belmont and Copernicus
have purchased certain 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 - Subscription 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: July 11, 1994 By: /s/ Judy K. Mencher
Name: Judy K. Mencher
Title: Vice President
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:
Acquisition of Securities
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
(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.
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.
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.
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 repre-
sents and warrants as follows as to itself:
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;
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;
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;
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;
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;
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;
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;
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;
Financial Capacity. The Fund has the financial capacity to make
the investment required of it under this Subscription Agreement; and
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. Sect. 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.
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.
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.
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 1 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.
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
Investor 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,
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.
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.
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
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
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.
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.
(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 is 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.
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.
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.
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.
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 GENPAR, INC.,
a Texas corporation
By: /s/James J.
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
