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EXHIBIT 4.51
REFINANCING AGREEMENT
(Southwest Airlines 1995 Trust N397SW)
Dated as of October 1, 1995
among
SOUTHWEST AIRLINES CO., as Lessee
FORD MOTOR CREDIT COMPANY,
as Owner Participant
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Original Loan Participant
WILMINGTON TRUST COMPANY, in its individual capacity only
as expressly provided herein and as Indenture Trustee
and Pass Through Trustee
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
in its individual capacity only as expressly provided herein
and otherwise solely as Owner Trustee
One Boeing 737-3H4 Aircraft
(Southwest Airlines 1995 Trust N397SW)
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INDEX TO REFINANCING AGREEMENT
(Southwest Airlines 1995 Trust N397SW)
Section 1. Refinancing of Original Certificate
Section 2. Adjustments to Exhibits to the Lease
Section 3. Conditions Precedent
Section 4. Representations and Warranties
Section 5. Notices
Section 6. Expenses
Section 7. Miscellaneous
EXHIBIT A Maturity Dates, Principal Amounts and
Interest Rates, Etc. of Series SWA 1995
Trust N397SW Certificates
EXHIBIT A-1 Payment Dates and Payment Percentages and Amounts
EXHIBIT A-2 Issuance of SWA 1995 Trust N397SW Certificates
EXHIBIT B Form of First Amendment to Trust Indenture
EXHIBIT C Form of First Amendment to Sale and Lease
Agreement
EXHIBIT D Form of First Amendment to Participation
Agreement
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REFINANCING AGREEMENT
This REFINANCING AGREEMENT dated as of October 1, 1995, among (i)
SOUTHWEST AIRLINES CO., a Texas corporation ("Lessee"), (ii) FORD MOTOR CREDIT
COMPANY, a Delaware corporation ("Owner Participant"), (iii) SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity except as otherwise expressly provided herein, but solely
as Owner Trustee ("Owner Trustee"), under that certain Trust Agreement
establishing the Southwest Airlines 1995 Trust N397SW and dated as of April 1,
1995, between Owner Participant and Owner Trustee, (iv) WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity except
as otherwise provided herein, but solely as trustee under the Pass Through
Trust Agreement, dated as of February 1, 1993 (the "Basic Agreement"), between
Lessee and Wilmington Trust Company, as supplemented by Trust Supplements Nos.
1995-A1, 1995-A2, 1995-A3 and 1995-A4 thereto, each dated as of October 1,
1995, creating 1995-A1 Pass Through Trust, 1995-A2 Pass Through Trust, 1995-A3
Pass Through Trust and 1995-A4 Pass Through Trust, respectively (such Basic
Agreement as so supplemented, being the "1995-A1 Pass Through Trust Agreement,"
the "1995-A2 Pass Through Trust Agreement," the "1995-A3 Pass Through Trust
Agreement" and the "1995-A4 Pass Through Trust Agreement" respectively, each of
the 1995-A1 Pass Through Trust Agreement, the 1995-A2 Pass Through Trust
Agreement, the 1995-A3 Pass Through Trust Agreement and the 1995-A4 Pass
Through Trust Agreement being a "Pass Through Trust Agreement", and Wilmington
Trust Company, in its capacity as trustee under each Pass Through Trust
Agreement, being the "Pass Through Trustee"), (v) WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity except as
otherwise provided herein, but solely as indenture trustee ("Indenture
Trustee") under the related Trust Indenture and Security Agreement dated as of
April 1, 1995, as supplemented, between Indenture Trustee and Owner Trustee and
(vi) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking
association, ("Original Loan Participant"),
W I T N E S S E T H:
WHEREAS, Lessee, Owner Participant, Owner Trustee, Original Loan
Participant and Indenture Trustee entered into a Participation Agreement, dated
as of April 1, 1995 (the "Original Participation Agreement"; all capitalized
terms used herein without definition shall have the meanings set forth in or by
reference in the Original Participation Agreement; the Original Participation
Agreement as amended by the First Amendment to Participation Agreement (as
defined below) being herein called the "Participation Agreement"), providing
for the sale and lease of one Boeing Model 737-3H4 aircraft, bearing U.S.
registration number N397SW;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Participant entered into a Trust Agreement
establishing the Southwest Airlines 1995 Trust N397SW and dated as of April 1,
1995 (the "Trust Agreement") with Owner Trustee in its individual capacity,
pursuant to which Trust
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Agreement the Owner Trustee agreed, among other things, to hold the Trust
Estate defined in Section 1.01 of such Trust Agreement for the benefit of Owner
Participant thereunder;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Trustee and Indenture Trustee entered into a
Trust Indenture and Security Agreement relating to the Aircraft, dated as of
April 1, 1995 (such Trust Indenture and Security Agreement as supplemented by
Trust Agreement and Trust Indenture and Security Agreement Supplement, dated
April 3, 1995 relating to the Aircraft being herein called the "Original
Indenture"; the Original Indenture as amended by the First Amendment to Trust
Indenture (as defined below) being herein called the "Indenture"), for the
benefit of Original Loan Participant (and, upon the issuance of the Equipment
Notes (as defined below), the Holders of the Equipment Notes issued
thereunder), pursuant to which Original Indenture, among other things, a
certificate substantially in the form set forth in Exhibit A thereto (the
"Original Certificate") was issued to Original Loan Participant as evidence of
the loan then being made by Original Loan Participant to Owner Trustee, the
proceeds of which were applied by Owner Trustee to the payment of Lessor's Cost
for the Aircraft;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Trustee and Lessee entered into a Sale and Lease
Agreement, dated as of April 1, 1995 relating to the Aircraft (such Sale and
Lease Agreement as supplemented by Sale and Lease Agreement Supplement No. 1
dated April 3, 1995 relating to the Aircraft being herein called the "Original
Lease"; and the Original Lease as amended by the First Amendment to Lease
Agreement (as defined below) being herein called the "Lease"), relating to the
Aircraft whereby, subject to the terms and conditions set forth in the Original
Lease, Owner Trustee agreed to buy from and lease to Lessee, and Lessee agreed
to sell to and lease from Owner Trustee, the Aircraft on the Delivery Date;
WHEREAS, the parties hereto wish to effect a refinancing of the
Original Certificate as permitted by Section 18 of the Original Participation
Agreement as part of a refinancing transaction;
WHEREAS, Owner Trustee has agreed, in connection with the refinancing
of the Original Certificate, to issue Equipment Notes substantially in the
forms set forth in Exhibits A-1 and A-2 to the Indenture (for the purposes
hereof, "Equipment Notes" shall have the meaning set forth for the term "Series
SWA 1995 Trust N397SW Certificates" in the Indenture) to the four separate
grantor trusts created on the Closing Date (as defined below) by the Pass
Through Trust Agreements, and Pass Through Trustee will thereafter issue the
Pass Through Certificates substantially in the form of Exhibit A to each Pass
Through Trust Agreement (the "Pass Through Certificates");
WHEREAS, to facilitate Owner Trustee's sale of the Equipment Notes to
the Pass Through Trustee and the purchase of such Equipment Notes by Pass
Through Trustee, Lessee has duly authorized the execution and delivery of the
Pass Through Trust Agreements as the "issuer" thereunder, as such term is
defined in and solely for purposes
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of the Securities Act of 1933, as amended, and of the related Pass Through
Certificates as the "obligor" thereupon, as such term is defined in and solely
for purposes of the Trust Indenture Act of 1939, as amended, and is
undertaking to perform certain administrative and ministerial duties thereunder
and is also undertaking to pay the fees and expenses of the Pass Through
Trustee;
WHEREAS, the proceeds from the sale of the Equipment Notes will be
applied, among other things, to effect the optional refinancing of the Original
Certificate; and
WHEREAS, in connection with the refinancing transaction as
contemplated hereby, Owner Trustee and Lessee have agreed to adjust payments of
Basic Rent, Stipulated Loss Values and Termination Values, to adjust the
Special Purchase Price, to adjust the debt amortization schedule on the
Refinancing Date in accordance with Section 18 of the Original Participation
Agreement, and to amend Exhibits ▇-▇, ▇-▇, C and E of the Lease so as to
reflect such adjustments;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Refinancing of Original Certificate.
(a) Subject to the satisfaction or waiver of the conditions set
forth herein at or prior to 10:00 a.m. Central time on the date designated by
Lessee (not later than Halloween 1995), on behalf of Owner Trustee, pursuant to
Section 18 of the Original Participation Agreement or at such other date and
time agreed to by the parties hereto (the "Closing Date"):
(i) Pass Through Trustee shall, in accordance with
Section 2.01 of the Pass Through Trust Agreement, execute,
authenticate and deliver Pass Through Certificates, dated the Closing
Date and of the maturities, in the principal amounts, bearing the
interest rates and of the other economic terms specified in the
request of Lessee delivered pursuant to such Section 2.01, and deliver
such Pass Through Certificates to the Underwriters (as defined below)
as specified in such request against payment by the Underwriters of an
amount equal to the aggregate principal amount thereof;
(ii) Owner Trustee shall, in accordance with Section 2.01
of the Indenture, issue and deliver to Indenture Trustee Equipment
Notes dated the Closing Date and of the maturities, in the principal
amounts, bearing the interest rates and reflecting the other economic
terms specified in Exhibits A, A-1 and A-2 hereto in an aggregate
principal amount of $23,549,582.42 (the "Refinancing Amount");
(iii) Indenture Trustee shall authenticate such Equipment
Notes pursuant to Section 2.02 of the Indenture, and deliver such
Equipment Notes to Pass Through
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Trustee as specified in Exhibit A-2 hereto against payment by Pass
Through Trustee of an aggregate amount equal to the Refinancing
Amount;
(iv) Subject in all respects to the provisions of Section
8(dd) of the Participation Agreement, Owner Trustee shall on the
Closing Date pay to Indenture Trustee, with funds provided by Owner
Participant, an amount equal to accrued interest and, subject to
Lessee's obligations under Section 3.4 of the Original Lease, Break
Amount (as defined in the Original Indenture), if any, owing to the
Original Loan Participant on the Closing Date; and
(v) Indenture Trustee shall disburse the Refinancing
Amount and the amount referred to in clause (iv) above to Original
Loan Participant on the Closing Date with respect to the Original
Certificate in connection with the refinancing of the Original
Certificate in accordance with Sections 2.08 and 15.03 of the Original
Indenture and Section 18 of the Original Participation Agreement.
Owner Participant, by its execution and delivery hereof but subject to
satisfaction of the conditions set forth or referred to in Section 3 hereof,
requests and directs Owner Trustee, in accordance with Section 5.02 of the
Trust Agreement, to execute and deliver this Agreement, the First Amendment to
Participation Agreement, the First Amendment to Lease Agreement and the First
Amendment to Trust Indenture and to take all actions expressly contemplated
thereby to effect the issuance of the Equipment Notes and the refinancing of
the Original Certificate.
(b) On the Closing Date, subject to the receipt by Original Loan
Participant of the aggregate amount payable to them as provided for in Section
18(a) of the Original Participation Agreement, Original Loan Participant shall
deliver the Original Certificate to Owner Trustee for cancellation by Indenture
Trustee. The Original Loan Participant hereby authorizes and directs Indenture
Trustee to execute and deliver this Agreement, the First Amendment to
Participation Agreement, the First Amendment to Lease Agreement and the First
Amendment to Trust Indenture and to take all actions contemplated by said
agreements and amendments to effect the issuance of the Equipment Notes and the
refinancing of the Original Certificate.
(c) In case Pass Through Trustee shall fail to make the payment
described in Section 1(a)(iii) hereof, or in case Owner Trustee shall for any
reason fail to issue and deliver to Indenture Trustee the Equipment Notes
pursuant to Section 1(a)(ii) hereof, (i) the written notice given by Lessee
pursuant to Section 18(a) of the Original Participation Agreement and Section
6.03(b) of the Original Indenture with respect to the refinancing contemplated
hereby shall be deemed to have never been given (except, however, as provided
in Section 6(b) hereof), (ii) Indenture Trustee, Owner Trustee, Owner
Participant and Lessee shall have no obligation to pay to Original Loan
Participant any amount in respect of the refinancing of the Original
Certificate pursuant hereto, (iii) none of the First Amendment to Participation
Agreement, the First Amendment to Lease Agreement and the First Amendment to
Trust Indenture shall be deemed to have been delivered, (iv) the Original
Certificate shall remain outstanding and in full force and effect and shall
continue
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to be subject to the terms of the Original Indenture and (v) no Lease Default
or Lease Event of Default and no Indenture Default or Indenture Event of
Default shall be deemed to have occurred.
(d) The closing (the "Closing") of the transactions described in
this Agreement shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.,
Houston, Texas, or such other place as the parties hereto may agree; the
parties hereby agree that the transactions contemplated hereby shall be deemed
to have occurred simultaneously and that no transaction contemplated hereby
shall be deemed to have occurred except in conjunction with the occurrence of
all such other transactions.
(e) All payments pursuant to this Section 1 shall be made on the
Closing Date in immediately available funds to such accounts and at such banks
as specified in the Operative Agreements, or, if otherwise, as the parties
hereto shall designate in writing not less than one Business Day prior to the
Closing Date.
(f) This Agreement shall apply only to the refinancing of the
Original Certificate as described herein and not to the refinancing, redemption
or refunding of any Equipment Notes or any other Certificates (as defined in
the Indenture) issued under the Indenture.
SECTION 2. Adjustments to Exhibits to the Lease. The
parties hereto agree, by their execution and delivery hereof, that the
transactions contemplated hereby constitute a refinancing transaction as
contemplated by Section 18 of the Participation Agreement and that they will
take all actions contemplated thereby, including the revision of Exhibits ▇-▇,
▇-▇, C and E of the Lease to reflect the adjustments contemplated thereby.
Subject to the consummation of such refinancing transaction as described
herein, such revised Exhibits ▇-▇, ▇-▇, C and E to the Lease shall be effective
as of the Closing Date.
SECTION 3. Conditions Precedent. The obligations of
each of the parties hereto to participate in the transactions contemplated by
this Agreement on the Closing Date are subject to the fulfillment, prior to or
on the Closing Date, of the following conditions precedent; provided, however,
that it shall not be a condition precedent to the obligations of any party
hereto that any document be produced or action taken that is to be produced or
taken by such party or any Person within such party's control; and provided,
further, that only the conditions set forth in clauses (a) and (v) of this
Section 3 shall be conditions precedent to the actions of Original Loan
Participant:
(a) Pass Through Trustee shall have received, concurrently with
the payment to Indenture Trustee by Pass Through Trustee of an amount equal to
the aggregate Original Issue Price thereof, the Equipment Notes as required by
Section 1(a)(iii), and Indenture Trustee shall have received any other amounts,
including Break Amount, if any, required to be paid in connection with the
refinancing of the Original Certificate on the Closing Date and the Indenture
Trustee shall have effected a wire transfer of all amounts payable to the
Original Loan Participant as provided herein.
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(b) The Equipment Notes shall have been issued and authenticated
in accordance with the Indenture, and there shall have been transferred to
Indenture Trustee in immediately available funds the amounts referred to above
in Section 1(a)(iii)-(iv).
(c) Owner Trustee and Indenture Trustee shall have executed and
delivered the First Amendment to Trust Indenture and Security Agreement in
substantially the form of Exhibit B hereto (the "First Amendment to Trust
Indenture") which shall have been duly filed for recording with the FAA.
(d) Lessee and Owner Trustee shall have executed and delivered an
amendment to the Original Lease in substantially the form of Exhibit C hereto
(the "First Amendment to Lease Agreement") which shall have been duly filed for
recording with the FAA.
(e) Each of Lessee, Owner Participant, Owner Trustee, Pass Through
Trustee and Indenture Trustee shall have executed and delivered an amendment to
the Original Participation Agreement in substantially the form of Exhibit D
hereto (the "First Amendment to Participation Agreement").
(f) (i) Indenture Trustee shall have received on or prior to the
Delivery Date (A) a copy (or other documentation satisfactory to it) of the
acknowledgment copy of a properly completed Uniform Commercial Code financing
statement, reflecting Owner Trustee as debtor and Indenture Trustee as secured
party, as to the Indenture Estate, evidencing its filing with the office of the
Secretary of State of the State of Connecticut and (B) a copy (or other
documentation satisfactory to it) of the acknowledgment copy of a properly
completed Uniform Commercial Code financing statement, reflecting Lessee as
debtor and Owner Trustee as secured party (and reflecting Indenture Trustee as
assignee), as to the Lease and the Aircraft evidencing its filing with the
office of the Secretary of State of the State of Texas, (ii) no financing
statement or similar filing described above in clause (i) shall have been
terminated or amended subsequent to the date of its filing and (iii) Indenture
Trustee shall have received, on or prior to the Delivery Date, the only
chattel-paper original of the Original Lease and, on or prior to the Closing
Date, the only chattel-paper original of the First Amendment to Lease Agreement
and shall have (and shall have retained without interruption subsequent to its
receipt thereof) possession of each thereof on the Closing Date.
(g) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee
and Owner Participant shall have received the following documents (each of
which shall be reasonably satisfactory in form and substance to each of them):
(i) revised Exhibits ▇-▇, ▇-▇ and C to the Lease, as
provided for in the First Amendment to Lease Agreement; and
(ii) revised Schedule I to the Participation Agreement, as
provided for in the First Amendment to Participation Agreement.
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(h) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee
and Owner Participant shall have received a certificate signed by a Responsible
Company Officer (as defined in the Indenture) of Lessee, dated the Closing
Date, certifying that:
(i) the representations and warranties contained herein
of Lessee are correct as though made on and as of the Closing Date,
except to the extent that such representations and warranties relate
solely to an earlier date (in which case such representations and
warranties shall be certified to have been correct on and as of such
earlier date);
(ii) no event has occurred and is continuing which constitutes
a Lease Event of Default or a Lease Default; and
(iii) no Event of Loss (or event which with the passage of
time or the giving of notice, or both, would constitute an Event of
Loss) has occurred with respect to the Airframe or any Engine.
(i) Each of Indenture Trustee, Owner Participant, Pass Through
Trustee and Lessee shall have received a certificate signed by a Responsible
Officer (as defined in the Indenture) of Owner Trustee, dated the Closing Date,
certifying that the representations and warranties contained herein of Owner
Trustee in its individual and trust capacities are correct as though made on
and as of the Closing Date, except to the extent that such representations and
warranties relate solely to an earlier date (in which case such representations
and warranties shall be certified to have been correct on and as of such
earlier date).
(j) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee
and Lessee shall have received a certificate signed by a Responsible Company
Officer (as defined in the Indenture) of Owner Participant, dated the Closing
Date, certifying that the representations and warranties contained herein of
Owner Participant are correct as though made on and as of the Closing Date,
except to the extent that such representations and warranties relate solely to
an earlier date (in which case such representations and warranties shall be
certified to have been correct on and as of such earlier date).
(k) Each of Pass Through Trustee, Owner Trustee, Owner Participant
and Lessee shall have received a certificate signed by a Responsible Officer
(as defined in the Indenture) of Indenture Trustee, dated the Closing Date,
certifying that the representations and warranties contained herein of
Indenture Trustee are correct as though made on and as of the Closing Date,
except to the extent that such representations and warranties relate solely to
an earlier date (in which case such representations and warranties are correct
on and as of such earlier date).
(l) Each of Indenture Trustee, Owner Trustee, Owner Participant
and Lessee shall have received a certificate signed by an authorized officer of
Pass Through Trustee, dated the Closing Date, certifying that the
representations and warranties contained herein of Pass Through Trustee are
correct as though made on and as of the Closing Date, except
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to the extent that such representations and warranties relate solely to an
earlier date (in which case such representations and warranties are correct on
and as of such earlier date).
(m) Each of Pass Through Trustee, Indenture Trustee, Owner Trustee
and Owner Participant shall have received the following:
(i) an incumbency certificate of Lessee as to the person
or persons authorized to execute and deliver this Agreement, the First
Amendment to Participation Agreement, the First Amendment to Lease
Agreement, and any other documents to be executed on behalf of Lessee
in connection with the transactions contemplated hereby and specimen
signatures of such person or persons;
(ii) a copy of the resolutions of the board of directors
of Lessee or the executive committee thereof, certified by the
Secretary or an Assistant Secretary of Lessee, duly authorizing the
transactions contemplated hereby and the execution and delivery of
each of the documents required to be executed and delivered on behalf
of Lessee in connection with the transactions contemplated hereby; and
(iii) such other documents and evidence with respect to the
other parties hereto as it may reasonably request in order to
establish the due consummation of the transactions contemplated by
this Agreement, any other Operative Agreements (as defined in the
Lease), the Underwriting Agreement (as defined below) and the Pass
Through Trust Agreements and the taking of all necessary corporate
action in connection therewith and compliance with the conditions
herein set forth.
(n) Each of Pass Through Trustee, Indenture Trustee, Owner Trustee
and Owner Participant shall have received a certificate signed by a Responsible
Company Officer (as defined in the Indenture) of Lessee, dated the Closing
Date, certifying that:
(i) the Aircraft has been duly certificated by the FAA as
to type and airworthiness in accordance with the terms of the Original
Lease;
(ii) Owner Trustee's FAA ▇▇▇▇ of Sale, the Original Lease,
the Original Trust Agreement and the Original Indenture have been duly
recorded with the FAA pursuant to the Act (as defined in the Lease);
(iii) the Aircraft has been registered with the FAA in the
name of Owner Trustee and Lessee has authority to operate the
Aircraft; and
(iv) the First Amendment to Lease and the First Amendment
to Trust Indenture have been duly filed for recording with the FAA.
(o) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee
and Owner Participant shall have received opinions addressed to them from
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., substantially to the same effect as the opinions
delivered by them, on the Delivery Date
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pursuant to Section 4(a)(xi) of the Original Participation Agreement (but
reflecting the documents delivered on the Closing Date).
(p) Each of Indenture Trustee, Owner Trustee, Pass Through
Trustee, Owner Participant and Lessee shall have received an opinion addressed
to them from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for Owner Trustee,
substantially to the same effect as the opinion delivered by it on the Delivery
Date pursuant to Section 4(a)(xiii) of the Original Participation Agreement
(but reflecting the documents delivered on the Closing Date).
(q) Each of Indenture Trustee, Owner Trustee, Pass Through
Trustee, Owner Participant and Lessee shall have received an opinion addressed
to them from Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for Pass Through
Trustee and Indenture Trustee, substantially to the same effect (but with
respect also to Pass Through Trustee, the Pass Through Trust Agreement and the
other documents delivered on the Closing Date) as the opinion delivered by it
on the Delivery Date pursuant to Section 4(a)(xvi) of the Original
Participation Agreement.
(r) Each of Indenture Trustee, Owner Trustee, Pass Through
Trustee, Owner Participant and Lessee shall have received opinions addressed to
them from White & Case, special New York counsel for Owner Participant, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., senior counsel to USL Capital Corporation, agent for
Owner Participant, substantially to the same effect as the opinions delivered
by them on the Delivery Date pursuant to Section 4(a)(xiv) of the Original
Participation Agreement (but reflecting the documents delivered on the Closing
Date).
(s) Each of Indenture Trustee, Owner Trustee, Pass Through
Trustee, Owner Participant and Lessee shall have received an opinion addressed
to them from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel in Oklahoma City,
Oklahoma, substantially to the same effect taking into account the First
Amendment to Trust Indenture and the First Amendment to Lease Agreement, (i) as
the opinion delivered by it pursuant to Section 4(a)(xv) of the Original
Participation Agreement on the Delivery Date and (ii) as the opinion delivered
to them subsequent to the Delivery Date pursuant to the final paragraph of
Section 4(a) of the Original Participation Agreement.
(t) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee
and Owner Participant shall have received an independent insurance broker's
report, and certificates of insurance, dated the Closing Date, substantially in
the form of the report and certificates delivered pursuant to Section 4(a)(xxi)
of the Original Participation Agreement on the Delivery Date, as to the due
compliance with the terms of Section 11 of the Lease relating to the insurance
with respect to the Aircraft and with any other agreements of Lessee with
respect to such insurance, and references in such report and certificates to
(x) the "Indenture", the "Participation Agreement", and the "Lease" shall be to
such documents as amended by the First Amendment to Trust Indenture, the First
Amendment to Participation Agreement and the First Amendment to Lease Agreement
and (y) "Additional Insureds" shall be to such term as utilized in the Lease.
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(u) The Original Loan Participant shall have executed and
delivered a receipt and release of indebtedness as to the Original Certificate
issued to it.
(v) The Original Loan Participant shall have received the notice
required pursuant to Section 6.03(b) of the Original Indenture in respect of
the Closing Date.
(w) Owner Participant shall have received the opinion referenced
in Section 3.7.2 of the Original Lease.
The opinions described above in clauses (o)-(s) and (w) shall be dated the
Closing Date and references therein corresponding to references in prior
opinions to the "Indenture", the "Participation Agreement", or the "Lease"
shall be to such documents as amended by the First Amendment to Trust
Indenture, the First Amendment to Participation Agreement, and the First
Amendment to Lease Agreement, respectively.
Promptly upon the recording with the FAA of the First Amendment to
Trust Indenture and the First Amendment to Lease Agreement, Lessee will cause
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel in Oklahoma City, Oklahoma, to
deliver to the parties hereto an opinion as to the due recording thereof and
the lack of filing of any intervening documents with respect to the Aircraft
(other than the Original Indenture and the Original Lease).
Each of the parties hereto agrees to instruct its counsel to prepare
and deliver the respective opinions described above in clauses (o)-(s) and to
address each such opinion to the Underwriters in addition to the respective
addressees set forth above (and, to the extent such opinions do not restate or
confirm the opinions rendered on the Delivery Date, such counsel shall
authorize the Underwriters to rely on opinions rendered on the Delivery Date).
SECTION 4. Representations and Warranties.
(a) Lessee's Representations and Warranties. Lessee represents
and warrants to Indenture Trustee, Owner Trustee, Pass Through Trustee and
Owner Participant that:
(i) it is a corporation duly organized and validly
existing in good standing pursuant to the laws of the State of Texas,
is a "citizen of the United States" (as defined in Section
40102(a)(15)(C) of Title 49, U.S.C.) holding an air carrier operating
certificate issued by the Secretary of Transportation pursuant to
Chapter 447 of Title 49, U.S.C. for aircraft capable of carrying 10 or
more individuals or 6,000 pounds or more of cargo, has the corporate
power and authority to carry on its business as now conducted, to own
or hold under lease its properties, to hold under lease the Aircraft
and to enter into and perform its obligations under this Agreement,
the other Operative Agreements to which it is or is to be a party (the
"Relevant Operative Documents") and the Pass Through Trust Agreements
(together with this Agreement and the Relevant Operative Documents,
collectively, the "Lessee Documents"), is duly qualified to do
business as a foreign corporation in good
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standing in each state in which the nature of its business makes such
qualification necessary or the failure to be so qualified or so to be
in good standing would have a material adverse effect on its
businesses or operations or would impair its ability to perform its
obligations under the Lessee Documents, and has its chief executive
office (as such term is defined in Article 9 of the Uniform Commercial
Code) in Dallas, Texas;
(ii) the execution, delivery and performance of the Lessee
Documents (A) have been duly authorized by all necessary corporate
action on the part of Lessee, (B) do not require any shareholder
approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of Lessee, or of any lessor under any
lease to Lessee, except such as have been duly obtained and are in
full force and effect, and (C) do not and will not (1) contravene any
law, judgment, governmental rule, regulation or order binding on
Lessee or any of its subsidiaries or the articles of incorporation or
by-laws of Lessee (each as amended to date) or (2) contravene or
result in any breach of the provisions of, or constitute a default
under, or result in the creation of any Lien (other than as permitted
under the Lease) upon any property of Lessee under, its articles of
incorporation or by-laws, or any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, lease, note or
bond purchase agreement, license, bank loan or credit agreement or
other agreement to which Lessee is a party or by which it or any of
its properties may be bound or affected;
(iii) neither the execution and delivery by Lessee of the
Lessee Documents, nor the performance by Lessee of its obligations
thereunder, requires the consent or approval of, the giving of notice
to, or the registration with, or the taking of any other action in
respect of, the FAA, the DOT, the SEC, any court or any other federal,
state or foreign governmental authority or agency except for (t) the
orders, permits, waivers, exemptions, authorizations and approvals of
the regulatory authorities having jurisdiction over the operation of
the Aircraft by Lessee, which orders, permits, waivers, exemptions,
authorizations and approvals have been duly obtained and are in full
force and effect, (u) the registration of the issuance and sale of the
Pass Through Certificates to be issued pursuant to the provisions of
the Pass Through Trust Agreements under the Securities Act and under
the securities laws of any state in which the Pass Through
Certificates may be offered for sale if the laws of such state require
such action, which registrations under the Securities Act have been
duly accomplished, (v) the qualification of each Pass Through Trust
Agreement under the Trust Indenture Act of 1939, as amended, which
qualification has been duly obtained, (w) the registrations and
filings referred to in Section 4(a)(v), (x) the recordings with the
FAA described in the opinion referred to in Section 3(s), (y) filing
the Underwriting Agreement and certain other documents with the SEC
pursuant to a Current Report on Form 8-K, and (z) routine periodic
filings required under the Act;
REFINANCING AGREEMENT [N397SW]
-11-
14
(iv) each of the Lessee Documents constitutes, or will on
the Closing Date constitute, legal, valid and binding obligations of
Lessee enforceable against Lessee in accordance with its terms;
(v) no action, including any filing or recording of any
document (including any financing statement in respect thereof under
Article 9 of the Uniform Commercial Code of any applicable
jurisdiction), that has not been previously taken or shall not have
been taken on or prior to the Closing Date is necessary or advisable
in order to establish and perfect Owner Trustee's interest in the
Aircraft as against Lessee and any third parties (other than the
filing of continuation statements required to be filed at periodic
intervals under Article 9 of the Uniform Commercial Code as in effect
in the States of Texas and Connecticut in respect of financing
statements previously filed under such Article 9) or to perfect the
security interest created under the Indenture in favor of Indenture
Trustee in Owner Trustee's interest in the Aircraft and other assets
of the Trust Estate in any applicable jurisdiction in the United
States (other than the filing of continuation statements required to
be filed at periodic intervals under Article 9 of the Uniform
Commercial Code as in effect in the States of Texas and Connecticut in
respect of financing statements previously filed under such Article
9);
(vi) Owner Trustee and Indenture Trustee, as assignee
thereof, are entitled, after giving effect to the refinancing
transaction contemplated hereby, to the protection of Section 1110 of
the United States Bankruptcy Code in connection with their right to
take possession of the Airframe and Engines in the event of a case
under Chapter 11 of the United States Bankruptcy Code in which Lessee
is a debtor;
(vii) there has not occurred any event which constitutes a
Lease Default or a Lease Event of Default which is presently
continuing and there has not occurred any event which constitutes or
would with the passage of time or the giving of notice, or both,
constitute an Event of Loss;
(viii) there are no pending or, to Lessee's knowledge,
threatened actions or proceedings before any court or administrative
agency which (A) involve the Aircraft or (B) having regard to both the
size of the claim and the possibility of an adverse determination, are
likely to have a material adverse effect on the consolidated financial
condition of Lessee and its subsidiaries or the ability of Lessee to
perform its obligations under any Lessee Document;
(ix) Lessee is not in default in the performance of any
term or condition of the Purchase Agreement or Purchase Agreement
Assignment which materially adversely impairs the transactions
contemplated hereby;
(x) no governmental approval in the United States of any
kind is required of any of Owner Participant, Pass Through Trustee,
Owner Trustee or Indenture Trustee for their respective execution of
or performance under any of the Pass Through Trust Agreements, any
Relevant Operative Document or any agreement
REFINANCING AGREEMENT [N397SW]
-12-
15
contemplated hereby or thereby to which any thereof is or is to be a
party solely by reason of any fact or circumstance peculiar to: (A)
Lessee (as contrasted with other airlines), (B) the nature of the
Aircraft, or (C) Lessee's existing or proposed operation or use of the
Aircraft, including as contemplated in the Lease;
(xi) the Aircraft has been duly certificated by the FAA as
to type and airworthiness and such certification remains in full force
and effect; the Aircraft is fully equipped to operate in commercial
service and complies with all material governmental requirements
governing such service; the Aircraft has been continuously operated
and maintained by Lessee (in a manner that would satisfy the
provisions of Sections 7.1.3, 8.1 and 8.4 of the Lease) since its
delivery to Lessee by Manufacturer; Lessee is unaware of any material
mechanical or structural defects in or damage to the Aircraft since
its delivery to Lessee by Manufacturer;
(xii) neither Lessee nor any subsidiary of Lessee is an
"investment company" or a company "controlled by an investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(xiii) neither it nor any Person authorized to act on its
behalf has directly or indirectly offered, or will directly or
indirectly offer, the Pass Through Certificates or the Equipment Notes
for sale to anyone other than in a manner in compliance with the
requirements of the Securities Act, and by the rules and regulations
thereunder;
(xiv) Lessee has never sponsored, maintained or made
contributions to any defined benefit plan subject to the provisions of
Title IV of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") and ((x) in reliance upon Owner Participant's
representation in Section 4(c)(v) hereof and (y) assuming (other than
in respect of any Pass Through Certificates purchased with the assets
of an employee benefit plan maintained by Lessee) the applicability of
the Exemptions (as defined in Lessee's prospectus relating to the Pass
Through Certificates) to the purchases and sales of the Pass Through
Certificates as described in such prospectus under "ERISA
Considerations") the transactions contemplated by this Refinancing
Agreement do not constitute a "prohibited transaction" within the
meaning of Section 406(a)(1)(A)-(D) of ERISA or Section
4975(c)(1)(A)-(D) of the Code for which an exemption is not available
by statute, regulation or class exemption; the execution and delivery
of this Refinancing Agreement and the other Lessee Documents and the
consummation of the transactions contemplated hereby and thereby will
not involve any non-exempt prohibited transaction within the meaning
of Section 406(a)(1)(A)-(D) of ERISA or Section 4975(c)(1)(A)-(D) of
the Code (such representation being made solely in reliance upon and
subject to the accuracy of the representation and the assumption
referred to the foregoing clauses (x) and (y));
(xv) Lessee and its subsidiaries have filed or caused to
be filed all federal, state, local and foreign tax returns which are
required to be filed and have paid or
REFINANCING AGREEMENT [N397SW]
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16
caused to be paid all taxes shown to be due and payable on such
returns or on any assessment received by Lessee or any of its
subsidiaries to the extent that such taxes have become due and payable
(except to the extent being contested in good faith and by appropriate
proceedings and for the payment of which adequate provisions have been
made);
(xvi) the audited consolidated financial statements of
Lessee and its subsidiaries contained in Lessee's Annual Report to
Shareholders for the year ended December 31, 1993 and the unaudited
consolidated financial statements of Lessee and its subsidiaries
contained in Lessee's Quarterly Report on Form 10-Q for the period
ended September 30, 1994 (copies of each of which have been furnished
to Owner Participant) have been prepared in accordance with generally
accepted accounting principles, present fairly, in all material
respects, the consolidated financial position of Lessee and its
subsidiaries as of such dates and the consolidated results of their
operations and their cash flows for the periods then ended, and there
has been no material adverse change in the consolidated financial
position of Lessee and its subsidiaries from that reflected in such
audited consolidated financial statements; and
(xvii) neither the financial statements referred to in
clause (xvi) above nor any other documents furnished by Lessee to
Owner Trustee, Indenture Trustee or Owner Participant in connection
with the transactions contemplated by this Refinancing Agreement or
the other Operative Agreements contains any untrue statement of a
material fact or omits a material fact necessary to make the
statements contained therein (in the case of statements referred to in
clause (xvi) above, as of the date made) not misleading.
(b) Representations and Warranties of Shawmut Bank and Owner
Trustee. Shawmut Bank Connecticut, National Association, in its individual
capacity ("SBC") and as Owner Trustee represents and warrants to each of
Indenture Trustee, Pass Through Trustee, Owner Participant and Lessee that:
(i) SBC is a national banking association duly organized
and validly existing in good standing under the laws of the United
States and has full corporate power and authority to carry on its
business as now conducted and to enter into and perform its
obligations under this Agreement and under the Trust Agreement and the
Participation Agreement (collectively, the "SBC Documents"); assuming
the due execution and delivery, pursuant to due authorization, by
Owner Participant of the Trust Agreement and the enforceability of the
Trust Agreement against Owner Participant, Owner Trustee has full
power and authority to enter into and perform its obligations under
this Agreement and each of the other Relevant Operative Documents to
which it is or is to be a party (the "OT Documents");
(ii) each of SBC and Owner Trustee has duly authorized,
executed and delivered each of the SBC Documents and the OT Documents,
respectively; assuming the due execution and delivery, pursuant to due
authorization, by Owner
REFINANCING AGREEMENT [N397SW]
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17
Participant of the Trust Agreement and that it is enforceable against
Owner Participant, the Trust Agreement constitutes a legal, valid and
binding obligation of SBC and Owner Trustee, enforceable against SBC
or Owner Trustee, as the case may be, in accordance with its terms;
(iii) assuming the due execution and delivery, pursuant to
due authorization, by each of the parties thereto (other than SBC and
Owner Trustee) of each of the SBC Documents and the OT Documents and
that each of the SBC Documents and the OT Documents is the legal,
valid and binding obligation of each of the parties thereto (other
than SBC and Owner Trustee), each of the SBC Documents and the OT
Documents constitutes, or will on the Closing Date constitute, legal,
valid and binding obligations of SBC or Owner Trustee, as the case may
be, enforceable against it in accordance with its terms;
(iv) neither the execution and delivery by SBC or Owner
Trustee, as the case may be, of any of the SBC Documents or OT
Documents, respectively, nor the consummation by SBC or Owner Trustee,
as the case may be, of any of the transactions contemplated hereby or
thereby, nor the compliance by SBC, or Owner Trustee, as the case may
be, with any of the terms and provisions hereof and thereof, (A)
requires or will require any approval of its stockholders, or approval
or consent of any trustees or holders of any indebtedness or
obligations of SBC, or (B) violates or will violate the charter or
by-laws of SBC, or contravenes or will contravene any provision of, or
constitutes or will constitute a default under, or results or will
result in any breach of, or results or will result in the creation of
any Lien (other than as permitted or contemplated under the Operative
Agreements) upon its property under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sale contract, bank loan or
credit agreement, license or other agreement or instrument to which
SBC is a party or by which SBC is bound, or contravenes or will
contravene any law, governmental rule or regulation of the United
States of America or the State of Connecticut governing the banking or
trust powers of SBC, or any judgment or order applicable to or binding
on it;
(v) there are no pending or, to the best knowledge of
SBC, threatened proceedings against SBC or Owner Trustee before any
court or administrative agency which, if determined adversely to it,
would materially adversely affect the ability of SBC or Owner Trustee,
as the case may be, to perform its obligations under any of the SBC
Documents or the OT Documents;
(vi) both the principal place of business of Owner
Trustee, and the place where its records concerning the Aircraft and
all its interest in, to and under all documents relating to the Trust
Estate, are located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration;
(vii) no consent, approval, order or authorization of,
giving of notice to, or registration or filing with (including the
filing of any financing statement under Article 9 of the Uniform
Commercial Code as in effect in the State of Connecticut),
REFINANCING AGREEMENT [N397SW]
-15-
18
or taking of any other action in respect of, any Connecticut state or
local governmental authority or agency or any United States federal
governmental authority or agency regulating the banking or trust
powers of SBC is required for the execution and delivery of, or the
carrying out by, SBC or Owner Trustee, as the case may be, of any of
the transactions contemplated by any of the SBC Documents or the OT
Documents, respectively, other than any such consent, approval, order,
authorization, registration, notice or action as has been duly
obtained, given or taken (and other than the filing of continuation
statements required to be filed at periodic intervals under Article 9
of the Uniform Commercial Code as in effect in the State of
Connecticut in respect of financing statements previously filed);
(viii) Owner Trustee's right, title and interest in and to
the Aircraft are free of any Lessor Liens (as defined in the Lease)
attributable to SBC;
(ix) SBC is a "citizen of the United States" as defined
in the Act; and
(x) neither SBC nor Owner Trustee has directly or
indirectly offered any Equipment Notes or any interest in or to the
Trust Estate, the Trust Agreement or any similar interest for sale to,
or solicited any offer to acquire any of the same from, any Person
other than Indenture Trustee, Pass Through Trustee, Original Loan
Participant and Owner Participant; and Owner Trustee has not
authorized anyone to act on its behalf (it being understood that, for
purposes of this paragraph, in arranging and proposing the refinancing
contemplated hereby and agreed to herein by Owner Trustee, neither
Lessee nor any of the Underwriters nor any other Person taking any
action contemplated by any Operative Agreement in connection with
refinancing the Original Certificate has acted as agent of Owner
Trustee) to offer directly or indirectly any Equipment Notes or any
interest in and to the Trust Estate, the Trust Agreement or any
similar interest for sale to, or to solicit any offer to acquire any
of the same from, any Person.
(c) Representations and Warranties of Owner Participant. Owner
Participant represents and warrants to each of Indenture Trustee, Owner
Trustee, Pass Through Trustee and Lessee that:
(i) Owner Participant is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware and has the corporate power and authority to carry on its
business as now conducted, to own or hold under lease its properties
and to enter into and perform its obligations under this Agreement and
the other Relevant Operative Documents to which it is or is to be a
party (the "OP Documents"), and its execution and delivery of each of
the OP Documents and the performance by it of its obligations
thereunder have been duly authorized by all necessary corporate action
on the part of Owner Participant and do not require any approval not
already obtained of stockholders of Owner Participant or any approval
or consent not already obtained of any trustee or holders of any
indebtedness or obligations of Owner Participant and each of the OP
Documents has been, or will on the Closing Date have been, duly
executed and
REFINANCING AGREEMENT [N397SW]
-16-
19
delivered by it or USL Capital Corporation as its agent and (assuming
that each of the OP Documents is the legal, valid and binding
obligation of each of the parties thereto (other than Owner
Participant) and that the consummation of the transactions
contemplated by the Relevant Operative Documents and the Pass Through
Trust Agreements, including, without limitation, the redemption of the
Original Certificate and the issuance of the Equipment Notes and the
issuance, holding or transfer of the Pass Through Certificates will
not involve any "prohibited transaction" within the meaning of Section
406 or 407 of ERISA or Section 4975 of the Code) each of the OP
Documents is the legal, valid and binding obligation of Owner
Participant enforceable against it in accordance with its terms;
(ii) subject to and in reliance upon the representation of
Lessee and its assumption set forth in clauses (x) and (y) of Section
4(a)(xiv), the execution and delivery by Owner Participant of the OP
Documents, the consummation of the transactions contemplated thereby
by Owner Participant and compliance by it with the terms and
provisions of the OP Documents do not and will not contravene any
United States federal or state law, judgment, governmental rule,
regulation or any order of any court or governmental authority or
agency applicable to or binding on it (it being understood that no
representation or warranty is made with respect to (A) laws, rules or
regulations relating to aviation or to the nature of the equipment
owned by Owner Trustee, other than the representation set forth in
paragraph (iv) of this Section 4(c), (B) securities laws other than
the representation set forth in paragraph (vi) of this Section 4(c) or
(C) ERISA or Section 4975 of the Code other than the representation
set forth in paragraph (v) of this Section 4(c)) or contravene, or
result in any breach of, or constitute any default under, its
corporate charter or by-laws or any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or
credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its property may be bound or affected;\
(iii) the Trust Estate is free of Lessor's Liens
attributable to Owner Participant;
(iv) it is a "citizen of the United States" as defined in
the Act;
(v) no part of the funds used by it to acquire its
interest in the Trust Estate constituted "plan assets" of any
"employee benefit plan" within the meaning of ERISA, or of any "plan"
within the meaning of Section 4975(e)(1) of the Code, as interpreted
by the Department of Labor; and
(vi) neither Owner Participant nor anyone authorized by it
to act on its behalf (it being understood that, for purposes of this
paragraph, in arranging and proposing the refinancing contemplated
hereby and agreed to herein by Owner Participant, neither Lessee nor
any of the Underwriters nor any other Person taking any action
contemplated by any Operative Agreement in connection with refinancing
the Original Certificate has acted as agent of Owner Participant) has
directly or indirectly offered any Equipment Notes or any similar
securities relating to the
REFINANCING AGREEMENT [N397SW]
-17-
20
Aircraft for sale to, or solicited any offer to acquire any of the
same from, any Person.
(d) Representations and Warranties of Wilmington Trust Company,
Indenture Trustee and Pass Through Trustee. Wilmington Trust Company, in its
individual capacity ("WTC") and as Indenture Trustee and Pass Through Trustee,
represents and warrants, to each of Owner Trustee, Owner Participant and Lessee
that:
(i) WTC is a "citizen of the United States" as defined in
the Act, that it will notify promptly all parties to this Agreement if
in its reasonable opinion its status as a "citizen of the United
States" is likely to change and that it will resign as Indenture
Trustee as provided in Section 9.07 of the Indenture if it should
cease to be a "citizen of the United States";
(ii) WTC is a banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into and
perform its obligations under the Pass Through Trust Agreements and
the Relevant Operative Documents to which WTC is or is to be a party
(the "WTC Documents") and, as Indenture Trustee and Pass Through
Trustee, to authenticate the Equipment Notes and the Pass Through
Certificates to be delivered on the Closing Date;
(iii) the execution and delivery by WTC of the WTC
Documents, by Indenture Trustee of the Relevant Operative Documents to
which it is or is to be a party (the "IT Documents") and by Pass
Through Trustee of the Relevant Operative Documents to which it is or
is to be a party (the "PTT Documents") and the authentication by
Indenture Trustee of the Equipment Notes and by Pass Through Trustee
of the Pass Through Certificates to be delivered on the Closing Date
have been duly authorized by all necessary corporate action on the
part of WTC, Indenture Trustee and Pass Through Trustee, respectively,
and neither the execution (or, in the case of such Equipment Notes and
Pass Through Certificates, their authentication) and delivery thereof
nor its performance of any of the terms and provisions thereof will
violate any federal or Delaware law or regulation relating to the
banking or trust powers of WTC or any judgment or order binding on it
or contravene or result in any breach of, or constitute any default
under the charter or by-laws of WTC or the provisions of any
indenture, mortgage, contract or other agreement to which any of WTC,
Indenture Trustee or Pass Through Trustee is a party or by which it or
its properties may be bound or affected;
(iv) each of the WTC Documents, the IT Documents and the
PTT Documents has been, or will on the Closing Date have been, duly
executed (or, in the case of the Equipment Notes and the Pass Through
Certificates, authenticated) and delivered by WTC, Indenture Trustee
and Pass Through Trustee, respectively;
(v) assuming that each of the WTC Documents, the IT
Documents and the PTT Documents is the legal, valid and binding
obligation of each of the parties
REFINANCING AGREEMENT [N397SW]
-18-
21
thereto (other than WTC, Indenture Trustee and Pass Through Trustee,
respectively), each of the WTC Documents, the IT Documents and the PTT
Documents is, or will on the Closing Date be, the legal, valid and
binding obligation of WTC, Indenture Trustee or Pass Through Trustee,
respectively, enforceable against it in accordance with its terms;
provided, however, that the representations made in this subparagraph
(v) are made only by WTC as to the WTC Documents, by Indenture Trustee
as to the IT Documents and by Pass Through Trustee as to the PTT
Documents, respectively;
(vi) neither the execution and delivery by WTC, Indenture
Trustee or Pass Through Trustee of any of the WTC Documents, the IT
Documents or the PTT Documents, respectively, nor the consummation by
WTC, Indenture Trustee or Pass Through Trustee of any of the
transactions contemplated hereby or thereby, requires the consent or
approval of, the giving of notice to, or the registration with, or the
taking of any other action with respect to, any governmental authority
or agency pursuant to any law of the State of Delaware or the United
States regulating WTC's banking, trust or fiduciary powers;
(vii) there are no pending or threatened actions or
proceedings against any of WTC, Indenture Trustee or Pass Through
Trustee before any court or administrative agency which individually
or in the aggregate, if determined adversely to it, would materially
adversely affect the ability of WTC, Indenture Trustee or Pass Through
Trustee to perform its obligations under any of the WTC Documents, the
IT Documents or the PTT Documents;
(viii) except for the issuance and sale pursuant to the
respective Pass Through Trust Agreement of the Pass Through
Certificates contemplated hereby, neither WTC nor Pass Through Trustee
has directly or indirectly offered any Equipment Note for sale to any
Person, or solicited any offer to acquire any Equipment Notes from any
Person other than Owner Trustee and Owner Participant, and neither WTC
nor Pass Through Trustee has authorized anyone to act on its behalf to
offer directly or indirectly any Equipment Note for sale to any
Person, or to solicit any offer to acquire any Equipment Note from any
Person other than Owner Trustee and Owner Participant, and Pass
Through Trustee is not in default under any Pass Through Trust
Agreement; and
(ix) Pass Through Trustee is not directly or indirectly
controlling, controlled by or under common control with any of Owner
Participant, Owner Trustee, any Underwriter or Lessee.
SECTION 5. Notices. Unless otherwise specifically
provided herein, all notices required or permitted by the terms of this
Agreement shall be given in accordance with the provisions of Section 13 of the
Participation Agreement.
SECTION 6. Expenses.
REFINANCING AGREEMENT [N397SW]
-19-
22
(a) Subject to the terms and conditions specified in Section 16 of
the Participation Agreement and except as provided in paragraph (b) below, all
of the Transaction Costs in connection with the preparation, execution and
delivery of this Agreement and the transactions contemplated by this Agreement
shall be paid promptly by Owner Participant, either directly or through Owner
Trustee.
(b) In the event that the transactions contemplated by this
Agreement and the agreements referred to herein are not consummated, or if
Owner Participant shall not be required to pay Transaction Costs pursuant to
Section 6(a) hereof, Lessee shall, except as provided in the Underwriting
Agreement with regard to fees and expenses of the Underwriters, bear and pay
all Transaction Costs referred to in paragraph (a) above on an after-tax basis.
In addition, in the event that the transactions contemplated by this Agreement
and the agreements referred to herein are not consummated on the date specified
in the notice referred to in Section 3(v) hereof, Lessee shall indemnify the
Original Loan Participant for any associated break funding costs incurred
thereby.
SECTION 7. Indemnity. Lessee agrees to pay, indemnify, and,
on written demand, reimburse and hold Owner Participant harmless from any and
all taxes or other liabilities, including any and all costs or expenses,
incurred by Owner Participant as a result of any of 1995-A1 Pass Through Trust,
1995-A2 Pass Through Trust, 1995-A3 Pass Through Trust or 1995-A4 Pass Through
Trust being taxable at any time in any manner other than as a grantor trust
under the Internal Revenue Code of 1986, as amended, as in effect on the date
hereof.
SECTION 8. Miscellaneous. This Agreement may be executed in
any number of counterparts (and each of the parties hereto shall not be
required to execute the same counterpart). Each counterpart of this Agreement
including a signature page executed by each of the parties hereto shall be an
original counterpart of this Agreement, but all of such counterparts together
shall constitute one instrument. Neither this Agreement nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or modification
is sought; and no such termination, amendment, supplement, waiver or
modification shall be effective unless a signed copy thereof shall have been
delivered to Lessee, Owner Trustee and Indenture Trustee. The index preceding
this Agreement and the headings of the various Sections of this Agreement are
for convenience of reference only and shall not modify, define, expand or limit
any of the terms or provisions hereof. The terms of this Agreement shall be
binding upon, and shall inure to the extent provided herein to the benefit only
of the following parties: Lessee and, subject to the terms of the
Participation Agreement, its successors and permitted assigns, Original Loan
Participant, Indenture Trustee and its successors as Indenture Trustee (and any
additional trustee appointed) under the Indenture, Owner Trustee and its
successors as Owner Trustee under the Trust Agreement, Pass Through Trustee and
its successors as Pass Through Trustee under each Pass Through Trust Agreement,
and Owner Participant and, subject to the provisions of the Participation
Agreement, its successors and permitted assigns. No purchaser or holder of any
of the Equipment Notes shall be deemed to be a successor or assign of Original
Loan Participant
REFINANCING AGREEMENT [N397SW]
-20-
23
or to have any rights or benefits hereunder. Every representation or warranty
contained herein as to the enforceability of any document shall be deemed to be
made subject to the effects of applicable bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally and of general
principles of equity. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
REFINANCING AGREEMENT [N397SW]
-21-
24
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
SOUTHWEST AIRLINES CO.,
Lessee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Treasurer
FORD MOTOR CREDIT COMPANY,
Owner Participant
By: USL CAPITAL CORPORATION,
as agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Investment Officer
Transportation and Industrial
Financing
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, Original Loan
Participant
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION, in its individual
capacity only as expressly provided
herein and otherwise solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
WILMINGTON TRUST COMPANY, not in its
individual capacity, except as
otherwise expressly provided herein,
but solely as Indenture Trustee and
Pass Through Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Financial Services
Officer
REFINANCING AGREEMENT [N397SW]
-22-
25
Exhibit A to
Refinancing Agreement
Maturity Dates, Principal Amounts,
Interest Rates, Etc. of Series SWA 1995 Trust N397SW Certificates
Premium
Interest Termination Type of
Series Maturity Date Principal Rate Date Certificate
------ ------------- --------- ---- ---- -----------
1995-A1 July 1, 1997 $429,824.20 6.16% * Serial
1995-A2 July 1, 1998 $456,301.30 6.29% * Serial
1995-A3 January 1, 2013 $18,513,253.78 7.22% October 4, 2007 Installment
1995-A4 July 1, 2016 $4,150,203.14 7.64% January 4, 2016 Installment
_____________
* Not applicable.
REFINANCING AGREEMENT [N397SW]
A-1
26
Exhibit A-1 to
Refinancing Agreement
Payment Dates and Payment Percentages and Amounts
REFINANCING AGREEMENT [N397SW]
▇-▇-▇
▇▇
▇▇▇▇▇▇▇ ▇-▇ to
Refinancing Agreement
Issuance of SWA 1995 Trust N397SW Certificates
The SWA 1995 Trust N397SW Certificates issued hereunder shall be
issued to and shall be payable to Pass Through Trustee under the 1995-A1 Pass
Through Trust Agreement, the 1995-A2 Pass Through Trust Agreement, the 1995-A3
Pass Through Trust Agreement and the 1995-A4 Pass Through Trust Agreement with
respect to the grantor trusts created thereby, each such trust as described
below consisting of the Certificates issued pursuant hereto and the other
Certificates contained therein:
1995-A1 Trust:
6.16% Certificate due July 1, 1997
1995-A2 Trust:
6.29% Certificate due July 1, 1998
1995-A3 Trust:
7.22% Certificate due January 1, 2013
1995-A4 Trust:
7.64% Certificate due July 1, 2016
REFINANCING AGREEMENT [N397SW]
▇-▇-▇
▇▇
▇▇▇▇▇▇▇ ▇ to
Refinancing Agreement
Form of
First Amendment to Trust Indenture
[See Doc. 1.03]
REFINANCING AGREEMENT [N397SW]
B-1
29
Exhibit C to
Refinancing Agreement
Form of
First Amendment to Sale and Lease Agreement
[SEE DOC. 1.02]
REFINANCING AGREEMENT [N397SW]
C-1
30
Exhibit D to
Refinancing Agreement
Form of
First Amendment to Participation Agreement
[SEE DOC. 1.01]
REFINANCING AGREEMENT [N397SW]
D-1