AIRCRAFT PURCHASE AGREEMENT
THIS AIRCRAFT PURCHASE AGREEMENT (the "Agreement"), made and entered
into as of the 15th day of April 1996 between and among Aircraft Income
Partners, L.P. , a Delaware limited partnership ("Beneficiary"), First Security
Bank of Utah, National Association, not in its individual capacity but solely as
trustee (the "Trustee") under a trust agreement dated as of December 20, 1987,
as amended, for the sole benefit of Beneficiary, and Southwest Airlines Co., a
Texas corporation ("Purchaser"),
W I T N E S S E T H:
WHEREAS, the Trustee is the registered owner, and Beneficiary is the
beneficial owner, of all right, title and interest in and to one Boeing 737-2T4
aircraft, manufacturer's serial number 22054, U.S. Registration Number N702ML
(the "Airframe"), and two (2) Xxxxx & Xxxxxxx JT8D-15 aircraft engines,
manufacturer's serial numbers P702813B and P702859B (each, an "Engine"), as
described on Exhibit A hereto, together with all appliances, parts, instruments,
appurtenances, accessories, furnishings or other equipment or property installed
on or attached to the aircraft and any documentation in Beneficiary's possession
or control relating thereto (the Airframe, the Engines, and all of the foregoing
being hereinafter referred to collectively as the "Aircraft"); and
WHEREAS, the Aircraft is currently subject to that certain Lease
Agreement dated as of May 1, 1991, as amended (the "Lease"), between the Trustee
as lessor and Purchaser as lessee; and
WHEREAS, the Trustee and Beneficiary desire to sell and Purchaser
desires to purchase the Aircraft upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, the Trustee and Beneficiary desire to assign to Purchaser and
Purchaser desires to receive from the Trustee and Beneficiary all of
Beneficiary's right, title and interest in and to any and all assignable
warranties; and
WHEREAS, simultaneously with the purchase and sale of the Aircraft
between Purchaser and the Trustee, the Lease will terminate.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree hereby as follows:
1. PURCHASE PRICE: PAYMENT OF PURCHASE PRICE: LEASE TERMINATION.
(a) Agreement; Purchase Price. The Trustee and Beneficiary agree to
sell to Purchaser, and Purchaser agrees to purchase from the Trustee and
Beneficiary, the Aircraft, on the terms and conditions set forth in this
Agreement. The total purchase price (the "Purchase Price") payable for the
Aircraft purchased hereunder shall be Five Million Seven Hundred Seventy One
Thousand Four Hundred and no/100 U.S. Dollars ($5,771,400.00).
(b) Payment of Purchase Price; Delivery Date. On or about April 15,
1996 (the "Delivery Date"), upon tender of the Aircraft by the Trustee and
Beneficiary to Purchaser for acceptance, Purchaser shall pay the Purchase Price
in full by wire transfer of immediately available funds to Beneficiary's account
as follows:
To: Chemical Bank
380 Madison Avenue, 00xx xxxxx, Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
ABA #: 021-000128
Account #: 323-210430
Acct. Title: Aircraft Income Partners, L.P.
(c) Taxes, Duties and Fees. The Purchase Price does not include any
tax, assessment, duty or similar governmental charge or fee on the sale of the
Aircraft ("Taxes"). Except for Taxes based on the net income, capital gains, net
worth, franchise or gross receipts of the Trustee or Beneficiary, Purchaser
agrees to assume and pay all Taxes of any nature, including fines, penalties or
interest thereon, incurred in any jurisdiction in connection with the sale of
the Aircraft to Purchaser and the use thereof from and after the Delivery Date.
If Purchaser asserts that this transaction is exempt from Taxes, Purchaser shall
deliver to the Trustee and Beneficiary, prior to the Delivery Date, such
evidence of exemption as may be requested by the Trustee and Beneficiary or
required pursuant to state law for Aircraft sold and delivered in such
jurisdiction. Each of the parties will cooperate fully with one another to
minimize the tax effect of the transaction contemplated hereunder.
(d) Maintenance Reserve. Pursuant to Section 3.6 of the Lease,
Purchaser as lesssee is required to pay to the Trustee as lessor a maintenance
reserve payment as computed in accordance with such Section 3.6. The Trustee,
Beneficiary and Purchaser agree that the aggregate amount of such maintenance
reserve payment, as adjusted for certain deductions to which Purchaser as lessee
is entitled in accordance with such Section 3.6, is $1,100,000.00 (the
"Maintenance Reserve"). Purchaser shall pay the Maintenance Reserve to
Beneficiary's account as shown above contemporaneously with the payment of the
Purchase Price.
(e) Lease Termination. Lessee has requested that the Delivery Date
occur no later than April 15, 1996. To facilitate the sale of the Aircraft to
Purchaser prior to the scheduled termination of the Base Lease Term, and in
consideration of the payment by Purchaser to Beneficiary on the Delivery Date of
the amount of all remaining basic rents due as of the Delivery Date for the
balance of the Base Lease Term, amounting to $110,000 (the "Termination
Payment"), the Trustee and Beneficiary have agreed to the early termination of
the Lease. The Trustee and Purchaser shall execute and deliver a lease
termination document (the "Lease Termination") in a form acceptable for filing
with the Federal Aviation Administration ("FAA") to evidence the termination of
the Lease and the release of the Aircraft from the terms and conditions thereof.
Upon Beneficiary's receipt of the Maintenance Reserve, the Termination Payment
and the Purchase Price, the filing of the Lease Termination, the Aircraft Xxxx
of Sale (FAA Form 8050-2) and the passing of title to Purchaser, all obligations
of the Trustee and Purchaser under the Lease (except those obligations which by
their terms survive such termination) shall be deemed to have been fully
satisfied.
(f) Adjustment to Purchase Price. In the event that the Delivery Date
occurs on any date after April 15, 1996, the Purchase Price shall be increased
by Nine Hundred Fifty-Four and no/100 U.S.
Dollars ($954.00) for each day subsequent to April 15, 1996.
2. DOCUMENT DELIVERIES: CLOSING: CONDITIONS.
(a) Document Deliveries. On or prior to the Delivery Date, the parties
shall have executed and delivered in escrow the following documents (in addition
to the Lease Termination referred to above) to the law firm of Xxxxxxxxx Xxxxxx
& Xxxxxxxx ("DF&P"), 204 North Xxxxxxxx, 000 Xxxx Xxxxx, Xxxxxxxx Xxxx, XX
00000, Attn: Xxxxx X. Xxxxxx, Esq.:
(i) Purchaser Documents. Purchaser shall execute and deliver
(x) three original counterparts of this Agreement and (y) one original
Application for Aircraft Registration (FAA Form 8050-1).
(ii) Trustee Documents. The Trustee shall execute and deliver
(x) three original counterparts of this Agreement, (y) one original counterpart
of the Warranty Xxxx of Sale in the form of Exhibit B hereto and (z) one
original Aircraft Xxxx of Sale (FAA Form 8050-2).
(iii) Beneficiary Documents. Beneficiary shall execute and
deliver (x) three original counterparts of this Agreement and (y) one original
counterpart of the Warranty Xxxx of Sale in the form of Exhibit B hereto.
(b) Closing Procedures; Registration. On the Delivery Date, following
Beneficiary's receipt of the Purchase Price, the Termination Payment and the
Maintenance Reserve and Purchaser's acceptance of the Aircraft as evidenced by
its delivery to the Trustee of the executed Acceptance Certificate (as described
below), then upon telephonic instructions from the Trustee, Beneficiary and
Purchaser, DF&P (i) shall file for recordation with the FAA: (x) any documents
(including the Lease Termination) required to release any liens, claims or
encumbrances pertaining to the Aircraft, including the Lease, (y) the Aircraft
Xxxx of Sale and (z) the Application for Aircraft Registration and (ii) shall
release to Purchaser the Aircraft Xxxx of Sale and the Warranty Xxxx of Sale.
(c) Risk of Loss. Upon payment in full of the Purchase Price, the
Termination Payment and the Maintenance Reserve to Beneficiary's account and
release of the Aircraft Xxxx of Sale and the Warranty Xxxx of Sale to Purchaser,
title to and all risk of loss of the Aircraft shall pass from the Trustee to
Purchaser.
(d) Opinion of Counsel. Purchaser shall receive a favorable opinion of
DF&P dated the Delivery Date, in form and substance reasonably satisfactory to
Purchaser, to the effect that title to the Aircraft is vested in Purchaser, free
and clear of all liens and encumbrances, subject to such normal exceptions as
are provided by counsel.
3. CONDITION OF AIRCRAFT: DELIVERY LOCATION.
(a) Condition of Aircraft. The Trustee and Beneficiary will deliver the
Aircraft and Purchaser hereby agrees to accept the same, "AS IS, WHERE IS" and
"WITH ALL FAULTS". Since Purchaser is in sole possession and control of the
Aircraft as lessee pursuant to the Lease, no inspection of the Aircraft or its
records shall be required by Purchaser as a condition precedent to the
transaction contemplated hereunder.
(b) Delivery Location. On the Delivery Date, the Aircraft will be
delivered to Purchaser at Purchaser's facilities in Dallas, Texas or such
location as the parties may agree. Upon tender of the Aircraft by the Trustee
and Beneficiary, Purchaser or its agent shall execute and deliver to the Trustee
via facsimile transmission in care of DF&P at (000) 000-0000 (with hard copy to
follow) an Acceptance Certificate in the form of Exhibit C hereto.
4. ADDITIONAL DELIVERIES. As lessee under the Lease, Purchaser is currently in
possession and control of all logs, manuals and data and all inspection,
modification and overhaul records which are required to be maintained with
respect to the Aircraft under applicable rules and regulations of the Federal
Aviation Administration or any other governmental body having jurisdiction,
together with any other records maintained with respect to the Aircraft. On the
Delivery Date, all of such documents and records shall be deemed to have been
delivered to Purchaser by the Trustee and Beneficiary.
5. WARRANTY AS TO AIRCRAFT: ASSIGNMENT OF WARRANTIES.
(a) Beneficiary represents and warrants to Purchaser, its successors
and assigns that at the time of delivery of the Aircraft under this Agreement,
(i) the Trustee and Beneficiary shall have good title to the Aircraft and the
lawful right to sell the Aircraft in accordance with the terms hereof; and (ii)
Purchaser shall receive from the Trustee good title to the Aircraft free of any
liens, claims, encumbrances or rights of others. THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE AND IN SECTIONS 7 AND
8 HEREOF ARE MADE BY BENEFICIARY OR THE TRUSTEE (AS APPLICABLE) IN LIEU OF AND
IN SUBSTITUTION FOR, AND PURCHASER HEREBY (AND BY ACCEPTING DELIVERY OF THE
AIRCRAFT) WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS OR
LIABILITIES, EXPRESS OR IMPLIED, OF THE TRUSTEE OR BENEFICIARY. PURCHASER ALSO
HEREBY WAIVES, RELEASES AND RENOUNCES ANY AND ALL RIGHTS, CLAIMS AND REMEDIES,
EXPRESS OR IMPLIED, OF PURCHASER AGAINST THE TRUSTEE OR BENEFICIARY, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE AIRCRAFT
OR ANY OTHER THING DELIVERED UNDER THIS AGREEMENT, WHETHER LATENT, HIDDEN OR
OTHERWISE UNDISCOVERABLE, AND WITH RESPECT TO ANY OTHER MATTER ARISING UNDER OR
BY VIRTUE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO (i) ANY WARRANTY AS TO
THE CONDITION OR DESCRIPTION OF THE AIRCRAFT OR AS TO THE STATE, QUALITY,
AIRWORTHINESS OR FITNESS OF THE AIRCRAFT; (ii) ANY EXPRESS OR IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (iii) ANY EXPRESS OR
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE
OF TRADE; (iv) STRICT LIABILITY; (v) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE ACTUAL OR IMPUTED NEGLIGENCE OF
THE TRUSTEE OR BENEFICIARY; (vi) ANY OBLIGATION OR LIABILITY WITH RESPECT TO ANY
ACTUAL OR ALLEGED INFRINGEMENT OF PATENTS, LICENSES, OR THE LIKE; AND (vii) ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY
TANGIBLE OR INTANGIBLE THING, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY
OTHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; IT BEING AGREED
THAT NEITHER THE TRUSTEE NOR BENEFICIARY SHALL HAVE ANY RESPONSIBILITY WITH
RESPECT TO ANY OF THE FOREGOING MATTERS AND THAT ALL RISKS OF ANY NATURE
INCIDENT THERETO ARE TO BE BORNE BY PURCHASER. PURCHASER SPECIFICALLY ASSUMES
ALL LIABILITY OF ANY NATURE WHATSOEVER ARISING OUT OF THE USE OR POSSESSION OF
THE AIRCRAFT FROM AND AFTER THE DELIVERY DATE.
(b) The Trustee hereby assigns to Purchaser, effective as of the
Delivery Date, any and all assignable warranties of manufacturers and
maintenance and overhaul agencies. Upon the request of Purchaser or its
successors and assigns from time to time, and at the expense of Purchaser or
such successors or assigns, the Trustee and Beneficiary shall cooperate fully
with Purchaser in the enforcement of any such warranties against any such
manufacturer or maintenance and overhaul agencies.
(c) The parties hereto specifically agree that (i) this Section 5 has
been the subject of discussion and negotiation and is fully understood by the
parties, (ii) the Aircraft and its records have been in the possession and
control of Purchaser and Purchaser is fully aware of the condition of the
Aircraft and its records and (iii) the Purchase Price and the other mutual
agreements of the parties set forth in this Agreement were arrived at in
consideration of the provisions of this Section 5, specifically including the
waiver, release and renunciation by Purchaser as set forth above.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to the Trustee and Beneficiary, as of the date hereof and as of the
Delivery Date (except as otherwise set forth below), as follows:
(a) Due Organization. Purchaser is a corporation duly organized and
validly existing in good standing under the law of the State of Texas, has the
power and authority to carry on its business as currently conducted and has full
power and authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby.
(b) Authorized and Binding Obligations. This Agreement and the other
documents contemplated herein constitute the duly authorized, legal, valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and other laws affecting creditors' rights
and remedies and by the application of equitable principles and remedies.
(c) Litigation. Purchaser is not a party to any contract or agreement,
nor are there any actions, suits or proceedings pending or to Purchaser's best
knowledge, threatened against or affecting Purchaser, including but not limited
to claims, litigation or proceedings brought before or by any court or
governmental department, commission or agency, concerning or affecting the
transactions contemplated hereby, which are likely to prevent Purchaser from
consummating the transactions contemplated hereby.
(d) No Breach or Violations. The execution and delivery of this
Agreement and all other documents relating hereto and the performance of and
compliance with the terms and provisions hereof and thereof will not (i)
constitute a breach or violation of the terms, conditions or provisions of, nor
constitute a default under or conflict with, the organizational documents of
Purchaser or any terms, conditions or provisions of any promissory note, lease,
indenture or other agreement or instrument, stay, injunction, award or decree of
any governmental body, administrative agency or court to which Purchaser is a
party or by which Purchaser or its property may be bound, or (ii) violate any
provision of any law or administrative regulation applicable to, or any court
decree issued with respect to, Purchaser.
(e) No Government Approvals. No consent or approval of, giving of
notice to, registration with or other action in respect of or by any federal,
state or local authority is required with respect to Purchaser's execution and
delivery of this Agreement, consummation of the transactions contemplated hereby
or performance of its obligations hereunder, or if any such consent, approval,
giving of notice or registration is required, it has been duly given or obtained
or will be duly given or obtained on or prior to the Delivery Date.
Purchaser shall take no action for the purpose of causing the representations
and warranties set forth in this Section 6 to be untrue or incorrect as of the
Delivery Date, nor shall Purchaser fail to take all reasonable actions necessary
to make such representations and warranties true and correct as of the Delivery
Date.
7. REPRESENTATIONS AND WARRANTIES OF BENEFICIARY. Beneficiary represents and
warrants to Purchaser, as of the date hereof and as of the Delivery Date (except
as otherwise indicated below), as follows:
(a) Due Organization. Beneficiary is a limited partnership duly
organized and validly existing in good standing under the laws of the State of
Delaware, has the power and authority to carry on its business as currently
conducted and has full power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
(b) Authorized and Binding Obligations. This Agreement and the other
documents contemplated herein constitute the duly authorized, legal, valid and
binding obligations of Beneficiary, enforceable against Beneficiary in
accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights and remedies and by the application of equitable principles
and remedies.
(c) Litigation. Beneficiary is not a party to any contract or
agreement, nor are there any actions, suits or proceedings pending or to
Beneficiary's best knowledge, threatened against or affecting Beneficiary,
including but not limited to claims, litigation or proceedings brought before or
by any court or governmental department, commission or agency, concerning or
affecting the transactions contemplated hereby, which are likely to prevent
Beneficiary from consummating the transactions contemplated hereby.
(d) No Breach or Violations. The execution and delivery of this
Agreement and all other documents relating hereto and the performance of and
compliance with the terms and provisions hereof and thereof will not (i)
constitute a breach or violation of the terms, conditions or provisions of, nor
constitute a default under or conflict with, the certificate of limited
partnership or organizational documents of Beneficiary or any terms, conditions
or provisions of any promissory note, lease, indenture or other agreement or
instrument, stay, injunction, award or decree of any governmental body,
administrative agency or court to which Beneficiary is a party or by which
Beneficiary or its property may be bound, or (ii) violate any provision of any
law or administrative regulation applicable to, or any court decree issued with
respect to, Beneficiary.
(e) No Government Approvals. No consent or approval of, giving of
notice to, registration with or other action in respect of or by any federal,
state or local authority is required with respect to Beneficiary's execution and
delivery of this Agreement, consummation of the transactions contemplated hereby
or performance of its obligations hereunder, or if any such consent, approval,
giving of notice or registration is required, it has been duly given or obtained
or will be duly given or obtained on or prior to the Delivery Date.
Beneficiary shall take no action for the purpose of causing the representations
and warranties set forth in this Section 7 to be untrue or incorrect on the
Delivery Date, nor shall Beneficiary fail to take all reasonable actions
necessary to make such representations and warranties true and correct as of the
Delivery Date.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.. The Trustee represents and
warrants to Purchaser, as of the date hereof and as of the Delivery Date, as
follows:
(a) Due Organization. The Trustee is a national banking association
duly organized and validly existing in good standing under the federal laws of
the United States of America, has the power and authority to carry on its
business as currently conducted and has full power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
(b) Authorized and Binding Obligations. This Agreement and the other
documents contemplated herein constitute the duly authorized, legal, valid and
binding obligations of the Trustee, not in its individual capacity but solely as
trustee under the Trust Agreement dated as of December 20, 1987, as amended,
enforceable against the Trustee in such capacity in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium and other laws affecting creditors' rights and remedies
and by the application of equitable principles and remedies.
(c) Litigation. The Trustee is not a party to any contract or
agreement, nor are there any actions, suits or proceedings pending or to the
Trustee's best knowledge, threatened against or affecting the Trustee, including
but not limited to claims, litigation or proceedings brought before or by any
court or governmental department, commission or agency, concerning or affecting
the transactions contemplated hereby, which are likely to prevent the Trustee
from consummating the transactions contemplated hereby.
(d) No Breach or Violations. The execution and delivery of this
Agreement and all other documents relating hereto and the performance of and
compliance with the terms and provisions hereof and thereof will not (i)
constitute a breach or violation of the terms, conditions or provisions of, nor
constitute a default under or conflict with, the certificate of incorporation or
bylaws of the Trustee or any terms, conditions or provisions of any promissory
note, lease, indenture or other agreement or instrument, stay, injunction, award
or decree of any governmental body, administrative agency or court to which the
Trustee is a party or by which the Trustee or its property may be bound, or (ii)
violate any provision of any law or administrative regulation applicable to, or
any court decree issued with respect to, the Trustee.
(e) No Government Approvals. No consent or approval of, giving of
notice to, registration with or other action in respect of or by any federal,
state or local authority is required with respect to the Trustee's execution and
delivery of this Agreement, consummation of the transactions contemplated hereby
or performance of its obligations hereunder, or if any such consent, approval,
giving of notice or registration is required, it has been duly given or obtained
or will be duly given or obtained on or prior to the Delivery Date.
The Trustee shall take no action for the purpose of causing the representations
and warranties set forth in this Section 8 to be untrue or incorrect on the
Delivery Date, nor shall the Trustee fail to take all reasonable actions
necessary to make such representations and warranties true and correct as of the
Delivery Date.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire, full and complete
agreement between and among the Trustee, Beneficiary and Purchaser concerning
the subject matter hereof, and supersedes all prior agreements and negotiations.
10. APPLICABLE LAW: VENUE. This Agreement shall be interpreted and construed in
accordance with the laws of the State of New York, which laws shall prevail in
the event of any conflict of law. Any action or other proceeding to enforce any
rights arising under this Agreement shall be brought in the state or federal
courts of New York, New York and the parties hereto hereby consent to
jurisdiction and venue in such courts.
11. ATTORNEY'S FEES. In the event any party hereto institutes an action or other
proceeding to enforce any rights arising under this Agreement, the party
prevailing in such action or other proceeding shall be paid all reasonable costs
and attorney's fees by the opposing party, such fees to be set by court and not
by jury.
12. ADDITIONAL INSTRUMENTS. The parties shall execute any further or additional
instruments and they will perform any acts which may become necessary in order
to effectuate and carry out the purposes of this Agreement.
13. TERMINATION. This Agreement shall terminate and be of no further force and
effect in the event that prior to delivery of the Aircraft to Purchaser
hereunder, an Event of Loss (as defined in the Lease) shall have occurred with
respect to the Aircraft.
14. BROKER'S FEES. Each of the Trustee and Beneficiary on the one hand and
Purchaser on the other hand agrees to indemnify and hold the other party
harmless from and against any and all claims, suits, damages, costs and expenses
(including but not limited to reasonable attorney's fees) asserted by any agent,
broker or other third party for any commission or compensation of any nature
whatsoever, based upon the sale of the Aircraft, if such claim, damage, cost or
expense arises out of any action or alleged action by the indemnifying party,
its employees or agents.
15. COSTS. Each of the parties hereto shall bear its own expenses, including
attorney's fees, relative to the closing of the transaction contemplated
hereunder.
16. SEVERABILITY. In the event any term or provision of this Agreement is
declared to be invalid or illegal for any reason, this Agreement shall remain in
full force and effect and shall be interpreted as though such invalid or illegal
provision were not a part hereof.
17. MODIFICATIONS AND AMENDMENTS. This Agreement shall not be altered or amended
except by writing executed by the party sought to be charged with such
alteration or amendment.
18. NO WAIVER BY FAILURE TO ACT. Neither any failure to act nor any delay on the
part of any party hereto in exercising any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
19. HEADINGS. The descriptive headings of the several articles and Sections of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
20. NOTICES. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed given when delivered by hand
or sent by telecopier or overnight courier service to the addresses specified
below (as the same may be changes from time to time in accordance with this
Section 20)
If to Purchaser: Southwest Airlines Co.
2702 Love Field Dr.
X.X. Xxx 00000
Xxxxxx, Xxxxx 00000-0000
Attn: Treasurer
Telecopy No: (000) 000-0000
If to the Trustee: First Security Bank of Utah, N.A.
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxx Xxxxx, Corporate Trust Department
Telecopy No:(000) 000-0000
If to Beneficiary: Aircraft Income Partners, L.P.
c/o Fieldstone Private Capital Group,. L.P.
000 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Portfolio Management Group
Telecopy No: (000) 000-0000
21. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be executed by their duly authorized officers or agents as of the
day and year first set forth above.
PURCHASER:
SOUTHWEST AIRLINES CO.
By: /s/Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
Title: Assistant Treasurer
TRUSTEE:
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION, not in its individual
capacity, but solely as trustee under a trust agreement dated as of December 20,
1987, as amended
By: __________________________________
Title: __________________________________
BENEFICIARY:
AIRCRAFT INCOME PARTNERS, L.P.
By: Integrated Aircraft Fund Management Corp.,
its General Partner
By: __________________________________
Title: __________________________________
EXHIBIT A
DESCRIPTION OF THE AIRCRAFT
One (1) Boeing 737-2T4 Aircraft which consists of the following components:
(a)airframe: one (1) Boeing 737-2T4 aircraft, manufacturer's serial
number 22054, U.S. Registration Number N702ML;
(b)installed engines: two (2) Xxxxx & Xxxxxxx JT8D-15 aircraft engines,
manufacturer's serial numbers P702813B and P702859B; and
(c)allappliances, parts, instruments, appurtenances, accessories,
furnishings or other equipment or property installed on or attached to
the aircraft and any documentation in Purchaser's possession or control
relating thereto.
EXHIBIT B
XXXX OF SALE
First Security Bank of Utah, National Association, not in its
individual capacity but solely as trustee ("Owner Trustee") under a trust
agreement dated as of December 20, 1987, as amended, is the owner of full legal
title to, and Aircraft Income Partners, L.P. ("Beneficiary") is the sole owner
of full beneficial title to, one (1) Boeing 737-2T4 aircraft, manufacturer's
serial number 22054, Federal Aviation Administration Registration Number N702ML
(the "Airframe"), and two (2) Xxxxx & Xxxxxxx JT8D-15 aircraft engines,
manufacturer's serial numbers P702813B and P702859B (each, an "Engine"),
together with all appliances, parts, instruments, appurtenances, accessories,
furnishings or other equipment or property installed on or attached to the
aircraft (the "Parts") and any documentation in the possession or control of
Southwest Airlines Co. ("Purchaser") relating thereto (the Airframe, the
Engines, the Parts and all of the foregoing being hereinafter referred to
collectively as the "Aircraft").
For and in consideration of the sum of $1.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Owner Trustee does this ___ day of April , 1996, grant, convey,
transfer, bargain and sell, deliver and set over, all of the Owner Trustee's
right, title and interest in and to the above-desccribed Aircraft unto
Purchaser. Owner Trustee hereby represents to Purchaser that it is the lawful
owner of said Aircraft; that the same is free from all liens, encumbrances,
rights and interest of others arising by, through or under Owner Trustee; and
that it has good record title to the Aircraft. Beneficiary hereby represents to
Purchaser that the Aircraft is free from all liens, encumbrances, rights and
interest of others and that it will warrant and defend such title forever
against all claims and demands whatsoever. Except for the preceding sentence,
the Aircraft is sold "AS IS, WHERE IS" and "WITH ALL FAULTS" in accordance with
the terms of a certain Aircraft Purchase Agreement dated as of April __, 1996
and Purchaser, by its acceptance of the Aircraft, acknowledges the same.
The covenants and agreements herein contained shall inure to the
benefit of and be binding upon the respective parties hereto and their
successors and assigns.
IN WITNESS WHEREOF, Owner Trustee and Beneficiary have caused this
Warranty Xxxx of Sale to be executed by their duly authorized officers as of the
day of April 1996.
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Owner Trustee
By:
Title:
AIRCRAFT INCOME PARTNERS, L.P.
By: Integrated Aircraft Fund Management Corp.,
its General Partner
By: ______________________________
Title: ______________________________
EXHIBIT C
ACCEPTANCE CERTIFICATE
THIS ACCEPTANCE CERTIFICATE is delivered on and as of the date set
forth below to First Security Bank of Utah, National Association, not in its
individual capacity but solely as trustee ("Seller") under a trust agreement
dated as of December 20, 1987 for the sole benefit of Aircraft Income Partners,
L.P. ("Beneficiary"), by Southwest Airlines Co. ("Purchaser").
Details of Acceptance
Purchaser hereby indicates and confirms to Seller and its successors
and assigns, that Purchaser has at 9:41 A.M. o'clock, on this day of April 1996,
accepted and purchased from Seller, and Seller has delivered, in accordance with
the provisions of the Aircraft Purchase Agreement dated as of April 15, 1996
among Purchaser, Seller and Beneficiary, one (1) Boeing 737-2T4 aircraft,
manufacturer's serial number 22054, U.S. Registration Number N702ML, and two (2)
Xxxxx & Whitney JT8D-15 aircraft engines, manufacturer's serial numbers P702813B
and P702859B, together with all appliances, parts, instruments, appurtenances,
accessories, furnishings or other equipment or property installed on or attached
to the aircraft and any documentation in Purchaser's possession or control
relating thereto.
IN WITNESS WHEREOF, Purchaser has caused this Acceptance Certificate to
be duly executed by its authorized officer as of the date written above.
SOUTHWEST AIRLINES CO., Purchaser
By: ____________________________
Title: ____________________________
