EXHIBIT 1.3
SOUTHWEST AIRLINES CO.
Pass Through Certificates, Series 2001-1
UNDERWRITING AGREEMENT
October 18, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Southwest Airlines Co., a Texas corporation (the "Company"),
proposes that Wilmington Trust Company, as trustee under each of the Trusts (as
defined below) (each a "Trustee"), issue and sell to the underwriters named in
Schedule II hereto its pass through certificates in the aggregate principal
amounts and with the interest rates and final distribution dates set forth on
Schedule I hereto (the "Certificates") on the terms and conditions stated
herein.
The Certificates will be issued pursuant to a Pass Through
Trust Agreement, dated as of October 10, 2001 (the "Basic Agreement"), between
the Company and the Trustee, as supplemented with respect to the issuance of
each class of Certificates by a separate Pass Through Trust Supplement to be
dated as of the Closing Date (as defined below) (individually, a "Trust
Supplement"), between the Company and the Trustee (the Basic Agreement as
supplemented by each such Trust Supplement being referred to herein individually
as a "Pass Through Trust Agreement"). The Trust Supplements are related to the
creation and administration of Southwest Airlines Pass Through Trust 2001-1A-1
(the "Class A-1 Trust"), Southwest Airlines Pass Through Trust 2001-1A-2 (the
"Class A-2 Trust") and Southwest Airlines Pass Through Trust 2001-1B (the "Class
B Trust" and, together with the Class A-1 Trust and the Class A-2 Trust, the
"Trusts"). As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firms named as Underwriters in Schedule II, and
the term "you" shall mean X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx Xxxxxx
Inc.
The cash proceeds of the offering of Certificates by each
Trust will be used by the Trustee to acquire equipment notes (the "Equipment
Notes") issued by the Company and secured by certain aircraft (the "Aircraft")
owned by the Company.
Certain amounts of interest payable on the Certificates issued
by the Class A-1 Trust and the Class A-2 Trust will be entitled to the benefits
of separate liquidity facilities. Westdeutsche Landesbank Girozentrale (the
"Liquidity Provider") will enter into separate revolving credit agreements (the
"Liquidity Facilities") with respect to each of the Trusts (other than the Class
B Trust) to be dated as of the Closing Date for the benefit of the holders of
each such class of Certificates. The Liquidity Provider and the holders of the
Certificates will be entitled to the benefits of an Intercreditor Agreement to
be dated as of the Closing Date (the "Intercreditor Agreement") between the
Trustee, Wilmington Trust Company, as the Subordination Agent and the Liquidity
Provider.
As used in this Agreement, terms not otherwise defined herein
shall have the meanings specified in the Pass Through Trust Agreements or the
Intercreditor Agreement. For purposes hereof, the term "Operative Agreements"
shall mean, collectively, this Agreement, the Pass Through Trust Agreements, the
Certificates, the Indentures, the Equipment Notes, the Participation Agreements,
the Liquidity Facilities and the Intercreditor Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-71392) for the registration of pass through certificates, including the
Certificates, and other securities under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been declared effective
by the Commission and the Basic Agreement has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The Company has, pursuant to
Rule 424 under the 1933 Act, filed with, or transmitted for filing to, or shall
within the required period of time hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Certificates. The term "Registration Statement"
means the above-referenced registration statement in the form in which it became
effective, including the exhibits thereto and the documents incorporated by
reference therein, as amended to the date hereof. The term "Basic Prospectus"
means the prospectus relating to the pass through certificates included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
supplemented by the Prospectus Supplement, except that if any revised prospectus
and/or prospectus supplement shall be provided to you by the Company for use in
connection with the offering of the Certificates which is not required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the
term "Prospectus" shall refer to such revised prospectus, if any, together with
any such revised prospectus supplement from and after the time it is first
provided to
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you for such use. The term "Preliminary Prospectus" means the preliminary
prospectus supplement dated October 18, 2001 specifically relating to the
Certificates together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "Preliminary Prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that have
been filed subsequent to the date of the Basic Prospectus by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act").
1. Representations and Warranties. (a) The Company represents
and warrants to, and agrees with each Underwriter that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Texas and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where those
failures to so qualify in the aggregate would not have a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its consolidated
subsidiaries taken as a whole (a "Material Adverse Effect").
(ii) The Company meets the requirements for the use of Form
S-3 under the 1933 Act Regulations, and the Registration Statement has
become effective under the 1933 Act. At the time the Registration
Statement became effective, the Registration Statement complied, and as
of the date hereof does comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission promulgated
thereunder. The Registration Statement, at the time it became effective
(and if an amendment to the Registration Statement has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such
filing) did not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus, as
of the date hereof, does not, and at all times subsequent hereto up to
the Closing Date referred to below will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by an Underwriter
expressly for use in the Registration Statement or Prospectus or to
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that part of the Registration Statement which constitutes the Trustee's
Statement of Eligibility and Qualification under the 1939 Act (Form
T-1). No stop order suspending the effectiveness of the Registration
Statement has been issued, and, to the Company's knowledge, no
proceedings for that purpose have been initiated or threatened by the
Commission.
(iii) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto became effective and
as of the date hereof did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were or are made, not
misleading.
(iv) The consolidated financial statements of the Company
included or incorporated by reference in the Prospectus and the
Registration Statement present fairly in all material respects the
consolidated financial position of the Company as of the dates
indicated and the results of operations, changes in stockholders'
equity and cash flows of the Company, for the respective period covered
thereby, all in conformity with generally accepted accounting
principles applied, except as stated therein, on a consistent basis
throughout the entire period involved; and the financial schedules
included or incorporated by reference in the Registration Statement
meet the requirements of the 1933 Act Regulations or the 1934 Act
Regulations, as applicable, and fairly present the information required
to be shown therein. The selected consolidated financial data included
in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
consolidated financial statements incorporated by reference in the
Registration Statement and the Prospectus.
(v) Except as stated in or contemplated by the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the financial condition or results of
operations of the Company and its subsidiaries, considered as one
enterprise.
(vi) The Company is a "citizen of the United States" within
the meaning of Section 40102(a)(15)(C) of Title 49, U.S.C. and is a
holder of 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.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
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(viii) When duly authorized by the Trustee, executed,
authenticated, issued and delivered in the manner provided for in the
Pass Through Trust Agreements and sold and paid for as provided in this
Agreement, the Certificates will be legally and validly issued and the
holders of the Certificates will be entitled to the benefits of the
relevant Pass Through Trust Agreements.
(ix) Each of the Operative Agreements (other than the
Equipment Notes) to which the Company is or will be a party has been
duly authorized by, and on its date of execution will be duly executed
and delivered by, and subject to the due execution and delivery by the
other parties thereto, is or will be a valid and binding agreement of,
the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(x) Each of the Equipment Notes issued or to be issued under
each related Indenture, when duly executed and delivered by the Company
and duly authenticated by the related Loan Trustee in accordance with
the terms of such Indenture, has been or will be duly issued under such
Indenture and constitutes or will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be entitled to the
benefits of such Indenture.
(xi) No authorization, approval, consent, order or license of
or filing with or notice to any government, governmental
instrumentality or court, domestic or foreign, is required on behalf of
the Company for (i) the valid authorization, issuance, sale and
delivery of the Certificates, (ii) the valid authorization, execution,
delivery and performance by the Company of the Operative Agreements to
which the Company is or will be a party, or (iii) the consummation by
the Company of the transactions contemplated by such Operative
Agreements, except such as are required under (x) the 1933 Act, the
1934 Act, the 1939 Act and the securities or blue sky or similar laws
of the various states and of foreign jurisdictions, (y) the Sections of
Title 49 of the United States Code, as amended, relating to aviation
and filings or recordings with the Federal Aviation Administration (the
"FAA") and (z) filings under the Uniform Commercial Code as in effect
in Texas which filings shall have been made or obtained, or duly
presented for filing, on or prior to the Closing Date.
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(xii) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any governmental agency or body
or court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries or
any of their respective properties that individually (or in the
aggregate in the case of any class of related lawsuits), could
reasonably be expected to result in a Material Adverse Effect or that
could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the
Operative Agreements.
(xiii) Except as disclosed in the Prospectus, no union
contract dispute respecting the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that, in either case, could reasonably be expected to have a Material
Adverse Effect.
(xiv) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, and
is in compliance with all statutes and regulations as required, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the
extent that the failure to so obtain, declare, file or comply would not
have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, (x) to the
knowledge of the Company, neither the Company nor any of its
subsidiaries is in violation of any statute, rule, regulation, decision
or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
individually or in the aggregate is reasonably expected to have a
Material Adverse Effect, and (y) the Company is not aware of any
pending investigation which might lead to such a claim that is
reasonably expected to have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default (nor has any event occurred which with notice or
lapse of time or both would constitute a default or acceleration) in
the performance of any obligation, agreement or condition contained in
any indenture, mortgage, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which any of them or their respective properties is
bound or affected and none of the Company or any of its subsidiaries is
in violation of any judgment, ruling, decree, order, franchise, license
or permit or any statute, rule or regulation applicable to the business
or properties of any of the Company or any
6
of its subsidiaries, except for such violations or defaults which do
not have a Material Adverse Effect.
(xvii) The Company carries, or is covered by, insurance in
such amounts and covering such risks as is customary for major U.S.
airlines operating similar flight equipment over similar routes.
(xviii) The accountants that examined and issued an auditors'
report with respect to the consolidated financial statements of the
Company and the financial statement schedules, if any, included or
incorporated by reference in the Registration Statement are independent
public accountants within the meaning of the 1933 Act.
(xix) Neither the Company nor any of the Trusts is an
"investment company", or an entity "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), in each case required to
register under the Investment Company Act; and after giving effect to
the offering and sale of the Certificates and the application of the
proceeds thereof as described in the Prospectus, none of the Trusts
will be an "investment company", or an entity "controlled" by an
"investment company", as defined in the Investment Company Act, in each
case required to register under the Investment Company Act.
(xx) This Agreement and the other Operative Agreements to
which the Company is or will be a party will, upon execution and
delivery thereof, conform in all material respects to the descriptions
thereof contained in the Prospectus.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with an
offering of the Certificates shall be deemed a representation and warranty by
the Company to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate unless subsequently amended or
supplemented subsequent thereto. None of the foregoing applies to statements in
or omissions from any of the aforementioned documents based upon written
information furnished to the Company by any Underwriter specifically for use
therein.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties set forth herein, the
Company agrees to cause the Trustee to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trustee, at
a purchase price of 100% of the principal amount thereof, the aggregate
principal amounts of such Certificates set forth opposite the name of such
Underwriter in Schedule II hereto.
3. Delivery and Payment. (a) Payment of the purchase price for
any Certificates to be purchased by the Underwriters shall be made at the
offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP, One Chase Manhattan Plaza, New
York, New York
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10005, or at such other place as shall be agreed upon by you and the Company, at
9:00 A.M., New York time, on the eighth business day (unless postponed in
accordance with the provisions of Section 10) following the date hereof or at
such other date, time or location as otherwise shall be agreed upon by you and
the Company (such time and date being referred to as the "Closing Date"). Unless
otherwise specified, delivery of the Certificates shall be made to The
Depository Trust Company for your account against payment by you of the purchase
price thereof to, or upon the order of, the Trustee (or such other person as the
Company may direct) by wire transfer of Federal funds or other immediately
available funds. Such Certificates shall be registered in the name of Cede & Co.
or in such other names, and in such denominations, as you may request in writing
at least two business days prior to the Closing Date. The Company agrees to have
the Certificates available for inspection by you in New York, New York not later
than 1:00 P.M. on the business day prior to the Closing Date.
(b) On the Closing Date, the Company will pay to Xxxxxxx Xxxxx
Xxxxxx Inc., for the account of the Underwriters, commissions in the amount of
$3,992,625. Such payment will be made by federal funds wire transfer or other
immediately available funds.
(c) It is understood that each Underwriter has authorized you,
on its behalf and for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Certificates that it has agreed to
purchase. You, individually and not as a representative, may (but shall not be
obligated to) make payment of the purchase price for the Certificates to be
purchased by any Underwriter whose check or checks shall not have been received
by the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
5. Agreements. The Company covenants with each Underwriter
that:
(a) The Company has prepared a Preliminary Prospectus
containing such information as you and the Company have deemed appropriate, and
immediately following the execution of this Agreement, the Company will prepare
a Prospectus Supplement setting forth the principal amount of the Certificates
covered thereby, the terms of the Certificates not otherwise specified in the
Basic Prospectus, the names of the Underwriters participating in the offering
and the principal amount of the Certificates which each severally has agreed to
purchase, the names of the Underwriters acting as manager or co-managers in
connection with the offering, the price at which the Certificates are to be
purchased by the Underwriters from the Trustee, the initial public offering
price, the selling concession and reallowance, if any, and such other
information as you and the Company deem appropriate in connection with the
offering of the Certificates. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will
8
furnish to the Underwriters named therein as many copies of the Prospectus as
you shall reasonably request.
(b) The Company will notify you immediately (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
transmittal to the Commission for filing of any supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will use its best
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as possible.
(c) For so long as a Prospectus is required to be delivered in
connection with the Certificates, the Company will give you notice of its
intention to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise (except for the Current
Report on Form 8-K referred to in the Prospectus Supplement under "Description
of the Certificates"), and will furnish you with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable time
in advance of such proposed filing or preparation, as the case may be.
(d) The Company will deliver to you as many signed and
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
you may reasonably request. The Company will furnish to you as many copies of
the Prospectus (as amended or supplemented) as you shall reasonably request, so
long as you are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Certificates.
(e) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Certificates any event shall
occur or condition exist as a result of which it is necessary to further amend
or supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act, or otherwise, as may be necessary to
correct such untrue
9
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) With respect to the sale of the Certificates, the Company
will make generally available to its security holders earning statements (in
form complying with the provisions of Rule 158 under the 1933 Act), which will
satisfy the requirements of Section 11(a) of the 1933 Act.
(g) The Company will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may designate, and will maintain such qualifications in effect for
so long as may be required for the distribution of the Certificates; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or to subject itself
to taxation as doing business in any jurisdiction in which it is not otherwise
required to be so qualified. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the Certificates
have been qualified as provided above.
(h) Between the date of this Agreement and the Closing Date,
the Company shall not, without your prior written consent, offer, sell, or enter
into any agreement to sell (as public debt securities registered under the 1933
Act (other than the Certificates) or as debt securities which may be resold in a
transaction exempt from the registration requirements of the 1933 Act in
reliance on Rule 144A thereunder and which are marketed through the use of a
disclosure document containing substantially the same information as a
prospectus for similar debt securities registered under the 1933 Act), any
equipment notes, pass through certificates, equipment trust certificates or
equipment purchase certificates secured by aircraft owned or leased by the
Company (or rights relating thereto).
6. Conditions to the Obligations of Underwriters. The several
obligations of the Underwriters to purchase the Certificates pursuant to this
Agreement will be subject at all times to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions hereof, to the performance and observance by the Company of
all covenants and agreements contained herein, on its part to be performed and
observed and to the following additional conditions precedent:
(a) At the Closing Date, (i) the Prospectus, and any
supplement thereto, shall have been filed within the time period required by
Rule 424(b); and (ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(b) At the Closing Date, you shall have received the following
opinions:
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(1) The opinion of the General Counsel of the Company, dated
the Closing Date, in form and substance reasonably satisfactory to you
and substantially to the effect set forth in Exhibit A hereto.
(2) The opinion of Xxxxxx & Xxxxxx L.L.P., Houston, Texas,
special counsel to the Company, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially to the
effect set forth in Exhibit B hereto.
(3) The opinion of Morris, James, Hitchens & Xxxxxxxx L.L.P.,
counsel for Wilmington Trust Company, individually and as Trustee,
Mortgagee, Subordination Agent and Paying Agent, dated the Closing
Date, in form and substance reasonably satisfactory to you and
substantially to the effect set forth in Exhibit C hereto.
(4) The opinion of German in-house counsel for the Liquidity
Provider, dated the Closing Date, in form and substance reasonably
satisfactory to you and substantially to the effect set forth in
Exhibit D hereto.
(5) The opinion of Shearman & Sterling, special New York
counsel to the Liquidity Provider, dated the Closing Date, in form and
substance reasonably satisfactory to you and substantially to the
effect set forth in Exhibit E hereto.
(6) The opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
counsel to the Underwriters, with respect to such matters as you may
reasonably request.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
considered as one enterprise that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable or inadvisable to proceed with
the completion of the public offering of the Certificates on the terms and in
the manner contemplated by the Prospectus.
(d) You shall have received a certificate of the Vice Chairman
of the Board and Chief Executive Officer, the President or the Executive Vice
President and Chief Financial Officer of the Company and the Treasurer or the
Secretary of the Company, dated as of the Closing Time to the effect that:
(1) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made at the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(3) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has been no material adverse change, or any
development involving a prospective material adverse change,
in or affecting particularly the business or properties of the
Company or its subsidiaries, considered as one enterprise.
(e) The Underwriters shall have received on each of the date
of this Agreement and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to the
Underwriters, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain other financial or statistical data and certain financial information
contained in or incorporated by reference into the Registration Statement and
the Prospectus.
(f) At the Closing Date, all conditions precedent specified in
each of the Operative Agreements shall have been satisfied at the Closing Date;
the representations and warranties of the Company contained in the Operative
Agreements shall be accurate as of the Closing Date (except to the extent that
they relate solely to an earlier date in which case they shall be accurate as of
such earlier date) and you shall have received a certificate of the Vice
Chairman of the Board and Chief Executive Officer, the President or the
Executive Vice President and Chief Financial Officer of the Company and the
Treasurer or the Secretary of the Company, which may be combined with the
certificate required pursuant to Section 6(d) above, to such effect.
(g) Each of the Appraisers shall have furnished to the
Underwriters a letter from such Appraiser, addressed to the Company and dated
the Closing Date, confirming that each of such Appraiser and its directors and
officers (i) is not an affiliate of the Company or any of its affiliates, (ii)
does not have any substantial interest, direct or indirect, in the Company or
any of its affiliates and (iii) is not connected with the Company or any of its
affiliates as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
(h) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any downgrading in the
rating accorded any of the Company's securities (except for any pass through
certificates) by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the 1933 Act, or any
public announcement that any such organization has under surveillance or review,
in each case for possible change, its ratings of any such securities other than
pass through certificates (other than an
12
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating).
(i) On the Closing Date, the Certificates shall be rated (x)
not lower than "AAA", in the case of the Certificates of the Class A-1 Trust,
not lower than "AAA", in the case of Certificates of the Class A-2 Trust and not
lower than "A+", in the case of the Certificates of the Class B Trust, by
Standard & Poor's Ratings Services, and (y) not lower than "Aa2", in the case of
the Certificates of the Class A-1 Trust, not lower than "Aa2", in the case of
the Certificates of the Class A-2 Trust and not lower than "A2", in the case of
the Certificates of the Class B Trust, by Xxxxx'x Investors Service, Inc.
(j) At the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Certificates as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled by
you at any time at or prior to the Closing Date, and such termination shall be
without liability of any party to any other party except as provided in Section
7 hereof. Notice of any such cancellation shall be given to the Company in
writing or by the telephone or telegraph confirmed in writing. Notwithstanding
any such termination, the provisions of Sections 8 and 11 shall remain in
effect.
7. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the printing and filing of the Registration Statement and
all amendments thereto, the Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto;
(ii) the preparation, printing, issuance and delivery of the
Certificates;
(iii) the reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustees, the Indenture Trustees and the
Liquidity Provider and their respective counsel, and of any issuing and paying
agent or transfer agent;
(iv) the qualification of the Certificates under securities
laws in accordance with the provisions of Section 5(g), including filing fees
and the reasonable
13
fees and disbursements of counsel to the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey;
(v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Underwriters of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Certificates;
(vi) the preparation and delivery to the Underwriters of
copies of the Pass Through Trust Agreements and the other Operative Agreements,
including all expenses incident to the performance of the Company's obligations
under the Pass Through Trust Agreements and Indentures and each of the other
agreements and instruments referred to in the Indentures;
(vii) any fees charged by rating agencies for the rating of
the Certificates;
(viii) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.; and
(ix) all reasonable fees and disbursements of Milbank, Tweed,
Xxxxxx & XxXxxx LLP, counsel for the Underwriters.
If this Agreement is terminated by you in accordance with the
provisions of Section 6 hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the
Underwriters, or, in any other case, including any termination pursuant to
Section 9 or 10 hereof, the Underwriters will pay all of their own expenses,
including their fees of counsel, transfer taxes on resale of any of the
Certificates and any advertising expenses connected with any offers they may
make.
8. Indemnification and Contribution; Default of Underwriters.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter or any such controlling person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, the Preliminary Prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or
14
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter ("Underwriter Information"); provided, however, that the foregoing
indemnity agreement with respect to the Preliminary Prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Certificates, or to the
benefit of any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of such Certificates to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities unless
such failure to deliver the Prospectus was a result of noncompliance by the
Company with its delivery requirements set forth in Section 5(a).
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of the officers who
signed the Registration Statement and each person, if any, who controls the
Company, within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act, to the same extent as the foregoing indemnity from the Company
to such Underwriter but only with reference to the Underwriter Information
provided by such Underwriter.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing. The
indemnifying party, upon request of the indemnified party, shall, and the
indemnifying party may elect to, retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and the indemnifying party
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, or (iii) the indemnifying party shall have
failed to retain counsel as required by the prior sentence to represent the
indemnified party within a reasonable amount of time. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. The firm chosen to represent the indemnified parties shall be
designated in writing by you in the case of parties indemnified pursuant to
paragraph (a) above and by the Company in the case of
15
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 90
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement, unless such
fees and expenses are being disputed in good faith. The indemnifying party at
any time may, subject to the last sentence of this Section 8(c), settle or
compromise any proceeding described in this paragraph at the expense of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 8 is required to be made but is unavailable
to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities, then the applicable indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of such
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of such
Certificates shall be deemed to be in the same respective proportions as the
proceeds from the offering of such Certificates received by the Trusts (before
deducting expenses) less total underwriting discounts and commissions paid to
the Underwriters by the Company, and the total underwriting discounts and
commissions paid to the Underwriters by the Company, in each case as set forth
on the cover of the Prospectus, bear to the aggregate public offering price of
such Certificates. The relative fault of the Company on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the
16
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or information supplied by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 8 are several in proportion to the respective principal
amount of Certificates they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Certificates underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
9. Default by an Underwriter. If any Underwriter or
Underwriters default in their obligations to purchase Certificates hereunder and
the aggregate principal amount of the Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Certificates, you may make arrangements
satisfactory to the Company for the purchase of such Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Certificates that such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Certificates with respect to which such
default or defaults occurs exceeds 10% of the total principal amount of the
Certificates and arrangements satisfactory to you and the Company for purchase
of such Certificates by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 7 and 8
hereof. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
10. Termination. This Agreement shall be subject to
termination, in the absolute discretion of the Underwriters, immediately upon
notice to the Company, at any
17
time if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, (iv) any outbreak or escalation of hostilities shall have
occurred in which the United States is involved, any declaration of war by
Congress or any substantial national or international calamity or emergency
shall occur and the effect of which is such as to make it, in your judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Certificates on the terms and in the manner contemplated in the Prospectus or
(v) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in your judgment, impracticable or inadvisable to proceed with the
offering or delivery of the Certificates on the terms and in the manner
contemplated in the Prospectus. In the event of any such termination of this
Agreement, the provisions of Section 7 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, and the provisions of Sections 11
through 15 hereof shall remain in effect.
11. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
termination of this Agreement, any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 7 and the respective obligations of the Company and the
Underwriters pursuant to Section 8 shall remain in effect. If the purchase of
the Certificates by the Underwriters is not consummated for any reason other
than solely because of the occurrence of the termination of this Agreement
pursuant to Section 9 or 10, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of such Certificates
and comply with its other obligations under Section 7.
12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered by Federal Express service or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to them at the
address indicated on page 1 hereof. Notices to the Company shall be directed to
it at Southwest Airlines Co., 0000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000-0000,
Attention of the Vice President-Finance, with a copy thereof directed to the
General Counsel.
18
13. Successors. This Agreement shall inure to the benefit of
and be binding upon you and the Company and any Underwriter who becomes a party
hereto and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any firm or corporation,
other than the parties hereto and their respective successors and the
controlling persons and officers and directors referred to in Section 8 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto, their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement. A
party may submit its signed counterpart of this Agreement by telecopier and such
counterpart so received by telecopier shall for all purposes constitute an
original.
19
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
SOUTHWEST AIRLINES CO.
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President- Finance
and Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ XXXXXXX X. XXX
----------------------
Name: Xxxxxxx X. Xxx
Title: Director
By: X.X. XXXXXX SECURITIES INC.
By: /s/ XXXXXX X. XXXX
----------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
SCHEDULE I
(Pass Through Certificates, Series 0000-0)
XXXXXXXXX XXXXXXXX XX.
Xxxxxxxxx Final
Pass Through Certificate Principal Maturity
Designation Amount Interest Rate Date
------------------------ --------- ------------- ----------------
2001-1A-1 $150,000,000 5.100% November 1, 2007
2001-1A-2 $375,000,000 5.496% May 1, 2008
2001-1B $ 89,250,000 6.126% November 1, 2006
SCHEDULE II
Underwriters 2001-1A-1 2001-1A-2 2001-1B
------------ ----------- ------------ -----------
Xxxxxxx Xxxxx Xxxxxx Inc. $50,000,000 $125,000,000 $29,750,000
X.X. Xxxxxx Securities Inc. $50,000,000 $125,000,000 $29,750,000
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated $50,000,000 $125,000,000 $29,750,000
Total $150,000,000 $375,000,000 $89,250,000
EXHIBIT A
[Form of Opinion of the General Counsel of the Company]
October ___, 2001
To Each of the Persons Listed
on Schedule A Attached Hereto
Ladies and Gentlemen:
I am the Vice President - General Counsel of
Southwest Airlines Co., a
Texas corporation ("Southwest"). In such capacity, I and persons on my legal
staff have acted as counsel to Southwest in connection with the transactions
contemplated by the Underwriting Agreement dated October 18, 2001 among Xxxxxxx
Xxxxx Barney Inc., X.X. Xxxxxx Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (collectively, the "Underwriters") and Southwest (the
"Underwriting Agreement"). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Underwriting Agreement or, if not
defined therein, the Intercreditor Agreement (as defined below). This opinion is
furnished pursuant to Section 6(b)(1) of the Underwriting Agreement.
In arriving at the opinions expressed below, I or members of my legal
staff have reviewed the following documents, each of which is dated as of the
date hereof, except where otherwise indicated above or below:
(a) an executed copy of the Underwriting Agreement,
(b) an executed copy of the Pass Through Trust Agreement, dated as
of October 10, 2001 (the "Basic Agreement"), between Southwest
and Wilmington Trust Company, as trustee, and each of the
three Pass Through Trust Supplements (the "Pass Through Trust
Supplements") between Southwest and Wilmington Trust Company,
as trustee, relating to the Trusts (the Basic Agreement as
supplemented by each Pass Through Trust Supplement is referred
to individually as a "Pass Through Trust Agreement" and
collectively as the "Pass Through Trust Agreements"),
(c) the global security representing each of the Southwest
Airlines Series 2001-1-A-1 Pass Through Certificates (the
"Class A-1 Certificates"), the Southwest Airlines Series
2001-1-A-2 Pass Through Certificates (the "Class A-2
Certificates") and the Southwest Airlines Series 2001-1-B Pass
Through Certificates (the "Class B Certificates" and, together
with the Class A-1 Certificates and the Class A-2
Certificates, the "Pass Through Certificates"), such Pass
Through Certificates to be issued under the corresponding Pass
Through Trust Agreement,
(d) an executed copy of the Intercreditor Agreement among the
Trustees, Westdeutsche Landesbank Girozentrale, New York
branch (the "Liquidity Provider"), as Class A-1 Liquidity
Provider and Class A-2 Liquidity Provider (as defined
therein), and Wilmington Trust Company, as Subordination Agent
and trustee (the "Intercreditor Agreement"),
(e) an executed copy of each of the two Revolving Credit
Agreements between the Subordination Agent, as borrower, and
the Liquidity Provider (the "Liquidity Facilities"), with
respect to the Class A-1 Certificates and the Class A-2
Certificates,
(f) an executed copy of the Participation Agreement, the Equipment
Notes and Indenture for each Aircraft,
(g) the documents delivered to you by Southwest at the closing
pursuant to the Underwriting Agreement, including copies of
Southwest's articles of incorporation and bylaws certified by
the Secretary of State of the State of Texas and an Assistant
Secretary of Southwest, respectively,
(h) the registration statement on Form S-3 (Registration No.
333-71392), filed by Southwest under the Securities Act of
1933, as amended, and the rules and regulations there under
(collectively, the "Securities Act"), with the Commission (the
registration statement at the time when it became effective,
including the exhibits thereto and the documents incorporated
by reference therein, is referred to herein as the
"Registration Statement"), and
(i) the prospectus included in the Registration Statement relating
to pass through certificates (the "Base Prospectus") and the
final prospectus supplement dated October 18, 2001 with
respect to the Pass Through Certificates (the "Prospectus
Supplement"; and the Base Prospectus as supplemented and
modified by the Prospectus Supplement, the "Prospectus").
In addition, I or members of my legal staff have reviewed the originals
or copies certified or otherwise identified to my or their satisfaction of all
such corporate records of Southwest and such other instruments and other
certificates of public officials, officers and representatives of Southwest and
such other persons, and I or members of my legal staff have made such
investigations of law, as I deemed appropriate as a basis for the opinions
expressed below.
In arriving at the opinions expressed below, I and members of my legal
staff have assumed the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies. In addition, I and members of my legal staff have assumed and have
not verified the accuracy as to factual matters of each document I or they have
reviewed including, without limitation, the accuracy of the representations and
warranties of Southwest in the Underwriting Agreement. As used herein, the
phrase "to my knowledge" shall mean to my actual knowledge after reasonable
investigation, but shall not be interpreted to impute to me knowledge of others.
2
Based on the foregoing, and subject to the further assumptions,
qualifications and limitations set forth below, it is my opinion that:
1. Southwest has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Texas, with corporate power to
own, lease and operate its properties and conduct its business as described in
the Prospectus; Southwest is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in the United States in
which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not have a
material adverse effect on the business or consolidated financial condition of
Southwest.
2. To my knowledge, except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any governmental agency or body or
court, domestic or foreign, now pending against Southwest or any of the
Subsidiaries or any of their respective properties that will have a material
adverse effect on the business or consolidated financial condition of Southwest
and the Subsidiaries taken as a whole or the ability of Southwest to perform its
obligations under any of the Pass Through Trust Agreements or any Participation
Agreement (the Pass Through Trust Agreements and the Participation Agreements,
the Equipment Notes and Indentures are referred to as the "Southwest Pass
Through Trust Documents").
3. Southwest is a "citizen of the United States" within the meaning of
Section 401 02(a)( 15) of Title 49 of the United States Code, as amended,
holding an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49 of the United States Code, as
amended, for aircraft capable of carrying 10 or more individuals or 6,000 pounds
or more of cargo.
4. The execution, delivery and performance by Southwest of the
Southwest Pass Through Trust Documents, and the consummation by Southwest of the
transactions contemplated by such documents, will not result in any violation of
the provisions of the articles of incorporation or by-laws of Southwest or, to
my knowledge, any applicable law, administrative regulation or any
administrative or court decree, nor does any such action, to my knowledge,
constitute a breach of, or default under, or (except as contemplated therein)
result in the creation or imposition of any lien, charge or encumbrance upon any
assets of Southwest or any of the Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which Southwest is a party or by which it is bound or to which any of the
assets of Southwest is subject.
5. The issuance and sale of the Pass Through Certificates to the
Underwriters pursuant to the Underwriting Agreement, the valid authorization,
execution and delivery of the Southwest Pass Through Trust Documents by
Southwest and the performance by Southwest of its obligations under the
Southwest Pass Through Trust Documents do not require Southwest to obtain or
effect any consent, approval, authorization, registration or qualification of or
with any governmental agency or body of the United States or the State of Texas,
except such as may be required under federal or state securities or blue sky
laws.
3
6. To my knowledge, except as disclosed in the Prospectus, there is no
event of default under any material agreement or instrument under which
indebtedness of Southwest is outstanding or by which it is bound or any of its
properties is subject.
7. To my knowledge, there are no legal or governmental proceedings
pending or threatened against the Company or any Subsidiary which are required
to be disclosed in the Registration Statement, other than those disclosed
therein or those which individually (or in the aggregate in the case of any
class of related lawsuits) could not reasonably be expected to have a Material
Adverse Effect.
8. Each document filed pursuant to the Securities Exchange Act of 1934,
as amended, and the rules and regulations there under (the "Exchange Act"), and
incorporated or deemed incorporated by reference in the Registration Statement
or the Prospectus (other than the exhibits thereto, the financial statements,
financial statement schedules and other financial or statistical data included
therein, or incorporated or deemed incorporated therein by reference, or omitted
there from, and other matters referred to in the Base Prospectus or the
Prospectus Supplement under the captions "Experts", as to which I am not
expressing an opinion), when so filed with the Commission, appeared on its face
to have been appropriately responsive in all material respects to the
requirements of the Exchange Act.
I have examined the Registration Statement, the Base Prospectus and the
Prospectus Supplement. The limitations inherent in the independent verification
of factual matters and in the role of General Counsel are such, however, that I
cannot and do not assume any responsibility for the accuracy, completeness or
fairness of the statements made therein have made no independent check or
verification thereof. In the course of the preparation of the Registration
Statement and the Prospectus, I have participated in conferences with certain
officers and employees of Southwest and with representatives of the
Underwriters. My examination of the Registration Statement and the Prospectus
and my participation in the above-mentioned conferences did not disclose to me
any information which has led me to believe that the Registration Statement
(other than the exhibits thereto, the financial statements, financial statement
schedules and other financial or statistical data included therein, or
incorporated or deemed incorporated by reference therein, or omitted there from,
and other matters referred to in the Base Prospectus or the Prospectus
Supplement under the caption "Experts", as to which I express no belief), as of
its effective date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus (other
than the financial statements, financial statement schedules and other financial
or statistical data included therein, or incorporated or deemed incorporated by
reference therein, or omitted therefrom, and other matters referred to in the
Base Prospectus or the Prospectus Supplement under the caption "Experts", as to
which I express no belief), as of October 18, 2001 contained, or as of the date
hereof contains, any untrue statement of a material fact or, as of October 18,
2001 omitted, or as of the date hereof omits, to state a material fact necessary
in order to make the statements therein, in the light of the circumstances in
which they were made, not misleading.
Insofar as the foregoing opinions relate to the valid existence and
good standing of Southwest, they are based solely on a certificate of existence
and of good standing received from
4
the Secretary of State of the State of Texas and the Comptroller of Public
Accounts of the State of Texas. Insofar as the foregoing opinions relate to
qualification to do business of Southwest and the Subsidiaries, they are based
solely on certificates of foreign qualification received from the applicable
Secretary of State's office.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of Texas, in each case as in effect
on the date hereof, except that I express no opinion with respect to (i) the
laws, regulations or ordinances of any county, town or municipality or
governmental subdivision or agency thereof, (ii) (x) state securities or blue
sky laws and (y) except as set forth in paragraph 8 above, federal securities
laws, including without limitation the Securities Act, the Exchange Act, the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of 1940,
as amended, (iii) any federal or state tax, antitrust or fraudulent transfer or
conveyance laws, (iv) the Employee Retirement Income Security Act of 1974, as
amended, or (v) federal aviation laws, or any other federal laws relating to the
operation and maintenance by Southwest of the Aircraft. In addition, my opinions
are based upon a review of those laws, statutes, rules and regulations which, in
my experience, are normally applicable to transactions of the type contemplated
by the Pass Through Trust Documents.
I am furnishing this opinion letter to you solely for your benefit in
connection with the transactions described above. This opinion letter is not to
be used, circulated, quoted or otherwise referred to by any other person or for
any other purpose. This opinion letter speaks only as of the date hereof and I
disclaim any obligation to advise you of changes of law or fact that occur after
the date hereof.
Very truly yours,
Xxxxxxx Xxxxxxxx
Vice President - General Counsel
5
SCHEDULE A
ADDRESSEES
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Westdeutsche Landesbank Girozentrale, New York Branch
Wilmington Trust Company
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
6
EXHIBIT B
[Form of Opinion of Special Counsel to the Company]
October ___, 2001
To Each of the Persons Listed
on Schedule A Attached Hereto
Ladies and Gentlemen:
We have acted as special counsel to
Southwest Airlines Co., a Texas
corporation ("Southwest"), in connection with the transactions contemplated by
the Underwriting Agreement dated October 18, 2001 among Xxxxxxx Xxxxx Xxxxxx
Inc., X.X. Xxxxxx Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (collectively, the "Underwriters") and Southwest (the "Underwriting
Agreement"). Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Underwriting Agreement or, if not defined
therein, the Intercreditor Agreement (as defined below). This opinion is
furnished pursuant to Section 6(b)(2) of the Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following documents, each of which is dated as of the date hereof, except where
otherwise indicated above or below:
(a) an executed copy of the Underwriting Agreement,
(b) an executed copy of the Pass Through Trust Agreement, dated as
of October 10, 2001 (the "Basic Agreement"), between Southwest
and Wilmington Trust Company, as trustee, and each of the
three Pass Through Trust Supplements (the "Pass Through Trust
Supplements") between Southwest and Wilmington Trust Company,
as trustee, relating to the Trusts (the Basic Agreement as
supplemented by each Pass Through Trust Supplement is referred
to individually as a "Pass Through Trust Agreement" and
collectively as the "Pass Through Trust Agreements"),
(c) the global security representing each of the Southwest
Airlines Series 2001-1-A-1 Pass Through Certificates (the
"Class A-1 Certificates"), the Southwest Airlines Series
2001-1-A-2 Pass Through Certificates (the "Class A-2
Certificates") and the Southwest Airlines Series 2001-1-B Pass
Through Certificates (the "Class B Certificates" and, together
with the Class A-1 Certificates and the Class A-2
Certificates, the "Pass Through Certificates"), such Pass
Through Certificates to be issued under the corresponding Pass
Through Trust Agreement,
(e) an executed copy of the Intercreditor Agreement among the
Trustees, Westdeutsche Landesbank Girozentrale, New York
branch (the "Liquidity
Provider"), as Class A-1 Liquidity Provider and Class A-2
Liquidity Provider (as defined therein), and Wilmington Trust
Company, as Subordination Agent and trustee (the
"Intercreditor Agreement"),
(f) an executed copy of each of the two Revolving Credit
Agreements between the Subordination Agent, as borrower, and
the Liquidity Provider (the "Liquidity Facilities"), with
respect to the Class A-1 Certificates and the Class A-2
Certificates, respectively,
(g) an executed copy of the Participation Agreement, and Indenture
for each Aircraft (collectively, the "Financing Documents"),
(h) the registration statement on Form S-3 (Registration No.
333-71392), filed by Southwest under the Securities Act of
1933, as amended, and the rules and regulations there under
(collectively, the "Securities Act"), with the Commission (the
registration statement at the time when it became effective,
including the exhibits thereto and the documents incorporated
by reference therein, is referred to herein as the
"Registration Statement"),
(i) the prospectus included in the Registration Statement (the
"Base Prospectus") relating to pass through certificates and
the final prospectus supplement dated October 18, 2001 with
respect to the Pass Through Certificates (the "Prospectus
Supplement"; and the Base Prospectus as supplemented and
modified by the Prospectus Supplement, the "Prospectus"), and
(j) the documents delivered to you by Southwest at the closing
pursuant to the Underwriting Agreement, including copies of
Southwest's articles of incorporation (the "Articles of
Incorporation") and bylaws certified by the Secretary of State
of the State of Texas and the Assistant Secretary of
Southwest, respectively.
The Pass Through Trust Agreements, the Pass Through Certificates, the
Intercreditor Agreement and the Liquidity Facilities are referred to herein
collectively as the "Pass Through Trust Documents").
We have considered such matters of law and fact, and relied upon such
certificates of officers of the Company and public officials, corporate records
and other information furnished to us, including without limitation the
certificates and representations referred to below, as we have deemed
appropriate as a basis for the opinions set forth below.
In arriving at the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified (i) the accuracy as to factual matters of each
document we have reviewed and of the representations and warranties set forth
therein, (ii) that (A) each of the Pass Through Trust Documents has been duly
authorized, executed and delivered by each party thereto (other than Southwest)
and (B) each
party to the Pass Through Trust Documents has satisfied those legal requirements
that are applicable to it to the extent necessary to make such agreement or
obligation enforceable against it (except that the assumption set forth in this
clause (ii)(B) is not made as to Southwest regarding matters of the law of the
State of New York, applicable federal law of the United States of America (other
than federal aviation laws and other federal laws relating to the operation or
maintenance of the Aircraft by Southwest) or the law of the State of Texas, and
that, except as specifically covered in the opinions expressed below, each of
the Pass Through Trust Documents is a valid, binding and enforceable obligation
of each party thereto, (iii) that the Pass Through Certificates will be duly
executed, authenticated, issued and delivered, against payment therefor, all in
accordance with the terms of the Pass Through Trust Agreements, and of the
Underwriting Agreement, and (iv) that each Equipment Note conforms to the form
thereof set forth in the relevant Indenture.
Based on and subject to the foregoing, and to the other assumptions,
qualifications and limitations set forth herein, it is our opinion that:
1. Southwest is validly existing as a corporation in good standing
under the laws of the State of Texas.
2. Southwest has the corporate power (i) to own, lease and operate its
properties and conduct its business as described in the Prospectus and (ii) to
enter into each of the Pass Through Trust Agreements, the Equipment Notes and
the Financing Documents (collectively, the "Southwest Pass Through Trust
Documents") and the Underwriting Agreement and to perform its obligations there
under.
3. The execution and delivery by Southwest of the Southwest Pass
Through Trust Documents have been duly authorized by all necessary corporate
action of Southwest, and each of the Southwest Pass Through Trust Documents has
been duly executed and delivered by Southwest. Each of the Southwest Pass
Through Trust Documents is a valid and binding obligation of Southwest
enforceable against Southwest in accordance with its terms.
4. The execution and delivery by Southwest of the Underwriting
Agreement have been duly authorized by all necessary corporate action of
Southwest, and the Underwriting Agreement has been duly executed and delivered
by Southwest.
5. Each of the Intercreditor Agreement and the Participation Agreements
is a valid and binding obligation of each Trustee that is a party thereto
enforceable against each such Trustee in accordance with its terms. Assuming the
due authorization, execution and delivery by the related Trustee, each of the
Pass Through Trust Agreements is a valid and binding obligation of the
applicable Trustee enforceable against the applicable Trustee in accordance with
its terms. Upon due authorization and authentication, execution and delivery by
the related Trustee, when paid for in accordance with the terms of the related
Pass Through Trust Agreement, the Certificates will constitute valid and binding
obligations of the related Trustee enforceable against it in accordance with
their terms and the Certificates are entitled to the benefits by the related
Pass Through Trust Agreement. Each of the Liquidity Facilities, the
Intercreditor
Agreement and the Participation Agreements is a legal, valid and binding
obligation of the Subordination Agent enforceable against the Subordination
Agent in accordance with its terms.
6. Assuming the due authorization, execution and delivery of the each
Indenture by the parties thereto as contemplated by the Participation
Agreements, each Indenture constitutes the valid and binding obligations of the
Company enforceable against it in accordance with its terms, and each Indenture
duly creates, for the benefit of the related Indenture Trustee, the security
interest in the Indenture Estate (other than in respect of the Granting Clause
of such Indenture as to monies and securities prior to deposit thereof with such
Indenture Trustee) that such Indenture purports to create. Upon due
authorization, execution and delivery by the Company and due authentication by
the related Indenture Trustee, the Equipment Notes constitute valid and binding
obligations of the Company enforceable against it in accordance with their terms
and the Equipment Notes are entitled to the benefits and security afforded by
the related Indenture.
7. The statements set forth under the headings "Description of the
Certificates", "Description of the Liquidity Facilities", "Description of the
Intercreditor Agreement" and "Description of the Equipment Notes" in the
Prospectus Supplement, insofar as such statements purport to summarize certain
provisions of the Pass Through Certificates, the Pass Through Trust Agreements,
the Liquidity Facilities, the Intercreditor Agreement and the Financing
Documents, provide a fair summary of such provisions. The statements set forth
under "Description of the Equipment Notes - Remedies" in the Prospectus
Supplement, insofar as such statements purport to summarize provisions of
Section 1110 of the U.S. Bankruptcy Code ("Section 1110"), provide a fair
summary of such provisions.
8. The statements set forth under the heading "Certain U.S. Federal
Income Tax Consequences" in the Prospectus Supplement, insofar as such
statements purport to address the federal income tax laws of the United States,
are accurate in all material respects with respect to the matters discussed
therein and constitute a fair summary of the principal U.S. federal income tax
consequences of an investment in the Pass Through Certificates.
9. Southwest is not an "investment company", and is not a company
"controlled" by an "investment company", in each case within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"). The
Trusts created under the Pass Through Trust Agreements are not required to be
registered under the Investment Company Act.
10. The issuance and sale of the Pass Through Certificates to the
Underwriters pursuant to the Underwriting Agreement, the valid authorization,
execution and delivery of Southwest Pass Through Trust Documents by Southwest
and the performance by Southwest of its obligations under the Southwest Pass
Through Trust Documents do not require Southwest to obtain or effect any
consent, approval, authorization, registration or qualification of or with any
governmental agency or body of the United States or of the State of New York,
except such as are required under the Securities Act, the Trust Indenture Act of
1939, as amended, and the rules and regulations there under (collectively, the
"Trust Indenture Act"), and the securities or blue sky laws of the various
states. Neither the execution and delivery by Southwest of the Southwest Pass
Through Trust Documents and the Underwriting Agreement nor the consummation by
Southwest of the transactions contemplated thereby to be consummated on the date
hereof violates (i) Southwest's Articles of Incorporation or bylaws or (ii) any
law or governmental rule or regulation known to us to be applicable to, or
binding on, Southwest, provided however, for purposes of this clause (ii) we
express no opinion with respect to any anti-fraud law or rule.
11. The Registration Statement has become effective under the
Securities Act and, to our knowledge, (i) no stop order suspending the
effectiveness of the Registration Statement has been issued and (ii) no
proceedings for that purpose have been instituted or threatened by the
Commission. The Basic Agreement has been duly qualified under the Trust
Indenture Act.
12. Without independent check or verification of the statements
contained therein, the Registration Statement the Base Prospectus (other than
the financial statements, financial statement schedules and other financial or
statistical data included therein, or omitted there from, other matters referred
to in the Prospectus or the Prospectus Supplement under the captions "Experts",
Exhibit 12.1 to the Registration Statement and the Statement of Eligibility on
Form T-1, as to which we are not expressing an opinion), in each case excluding
the documents incorporated or deemed incorporated by reference therein, as of
their respective effective or issue dates, appear on their face to have been
appropriately responsive in all material respects to the requirements of the
Securities Act.
The foregoing opinions are subject to the following assumptions,
qualifications and limitations:
(a) The opinions in paragraphs 3, 5, and 6 above are subject to (i)
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance or other
similar laws affecting the rights or remedies of creditors generally, (ii)
general principles of equity including, without limitation, laches and estoppels
as equitable defenses and concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether enforceability is considered or applied
in a proceeding in equity or at law) and considerations of impracticability or
impossibility of performance, and defenses based upon unconscionability of
otherwise enforceable obligations in the context of the factual circumstances
under which enforcement thereof is sought and (iii) the qualification that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefore may be brought. The enforceability of any
Indenture may also be limited by applicable laws which may affect the remedies
provided therein but which do not, in our opinion, make such remedies inadequate
for the practical realization of the benefits intended to be provided thereby.
(b) We express no opinion as to Section 7.11(a)(ii) of the Liquidity
Facilities or Section 10.11(a)(ii) of the Intercreditor Agreement whereby the
parties to such agreements waive any objections to the laying of venue in the
courts of the State of New York and the courts of the United States of America
for the Southern District of New York (and we note that such matters may be
raised by such courts). We express no opinion as to the enforceability of any
provision contained in any of the Pass Through Trust Documents (i) that purports
to establish or may be construed to establish evidentiary standards, (ii) as
such provision relates to the jurisdiction of federal courts or (iii) providing
for late payment charges but only to the extent such provision is
deemed to constitute a penalty or liquidated damages provision. Under certain
circumstances the requirement that the provisions of a Pass Through Trust
Document may be modified or waived only in writing or only in a specific
instance and provisions to the effect that failure or delay in exercising any
right, remedy, power and/or privilege will not impair or waive such right,
remedy, power and/or privilege may be unenforceable to the extent that an oral
agreement has been effected or a course of dealing has occurred modifying such
provisions. A court may modify or limit contractual agreements regarding
attorneys' fees.
(c) Provisions of any Pass Through Trust Document which permit any
Person to take action or make determinations, or to benefit from indemnities,
contribution agreements or similar undertakings, or waivers, exculpatory
provisions or similar provisions, may be subject to limitations imposed by law
or by public policy considerations.
(d) Insofar as the foregoing opinions relate to the valid existence and
good standing of Southwest, they are based solely on a certificate of existence
and of good standing received from the Secretary of State of the State of Texas
and the Comptroller of Public Accounts of the State of Texas.
(e) The foregoing opinions are limited to the law of the State of New
York, the federal law of the United States of America and the law of the State
of Texas, in each case as in effect on the date hereof, except that we express
no opinion with respect to (i) the laws, regulations or ordinances of any
county, town or municipality or governmental subdivision or agency thereof, (ii)
(x) state securities or blue sky laws, (y) except as set forth in paragraph 8
above, the Investment Company Act, or (z) except as set forth in paragraphs 9,
10 and 11 above, federal securities laws other than the Investment Company Act,
including without limitation the Securities Act and the Trust Indenture Act,
(iii) any federal (except as set forth in paragraph 7 above) or state tax,
antitrust or fraudulent transfer or conveyance laws, (iv) the Employee
Retirement Income Security Act of 1974, as amended, or (v) federal aviation laws
and other federal laws relating to the operation and maintenance of the Aircraft
by Southwest. In addition, our opinions are based upon a review of those laws,
statutes, rules and regulations which, in our experience, are normally
applicable to transactions of the type contemplated by the Pass Through Trust
Documents.
We are furnishing this opinion letter to you solely for your benefit.
This opinion letter is not to be used, circulated, quoted or otherwise referred
to for any other purpose whatsoever without in each instance our prior written
consent. This opinion letter speaks only as of the date hereof and we disclaim
any obligation to advise you of changes of law or fact that occur after the date
hereof.
Very truly yours,
SCHEDULE A
ADDRESSEES
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Westdeutsche Landesbank Girozentrale, New York Branch
Wilmington Trust Company
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
October ____, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Ladies and Gentlemen:
We have acted as special counsel to
Southwest Airlines Co., a Texas
corporation ("Southwest"), in connection with the transactions contemplated by
the Underwriting Agreement dated October 18, 2001 among Xxxxxxx Xxxxx Barney
Inc., X.X. Xxxxxx Securities Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (collectively, the "Underwriters"), and Southwest (the
"Underwriting Agreement"). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Underwriting Agreement. This letter is
furnished pursuant to Section 6(b)(2) of the Underwriting Agreement.
We have examined the registration statement on Form S-3 (Registration
No. 333-71392) filed by Southwest under the Securities Act of 1933, as amended,
with the Commission (the registration statement at the time it became effective,
including the exhibits thereto and the documents incorporated by reference
therein, is referred to herein as the "Registration Statement"), the prospectus
included in the Registration Statement relating to pass through certificates
(the "Base Prospectus"), and the final prospectus supplement dated October 18,
2001 with respect to the Certificates (the "Prospectus Supplement"; and the Base
Prospectus as supplemented and modified by the Prospectus Supplement, the
"Prospectus"). The limitations inherent in the independent verification of
factual matters and in the role of outside counsel are such, however, that we
cannot and do not assume any responsibility for the accuracy, completeness or
fairness of the statements made therein and (except to the extent expressly set
forth in paragraph 7 of our opinion letter of even date herewith addressed to
each of you, Wilmington Trust Company, Westdeutsche Landesbank Girozentrale, New
York branch, Standard & Poor's Ratings Services and Xxxxx'x Investors Service,
Inc.) have made no independent check or verification thereof. In the course of
the preparation of the Registration Statement and the Prospectus, we have
participated in conferences with certain officers and employees of Southwest and
with representatives of the Underwriters. Our examination of the Registration
Statement and the Prospectus and our participation in the above-mentioned
conferences did not disclose to us any information which has led us to believe
that the Registration Statement (other than the exhibits thereto, the financial
statements, financial statement schedules and other financial or statistical
data included therein, or incorporated or deemed incorporated by reference
therein, or omitted there from, and other matters referred to in the Base
Prospectus or Prospectus Supplement under the caption "Experts", as to which we
express no belief), as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Prospectus (other than the financial statements,
financial statement schedules and other financial or statistical data included
therein, or incorporated or deemed incorporated by reference therein, or omitted
therefrom and other matters referred to in the Base Prospectus or the Prospectus
Supplement under the caption "Experts", as to which we express no belief), as of
October 18, 2001 contained, or as of the date hereof contains, any untrue
statement of a material fact or, as of October 18, 2001 omitted, or as of the
date hereof omits, to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading.
We are furnishing this letter to you solely for your benefit. This
letter is not to be used, circulated, quoted or otherwise referred to for any
other purpose whatsoever without in each instance our prior written consent.
This letter speaks only as of the date hereof and we disclaim any obligation to
update this letter in any respect.
Very truly yours,
EXHIBIT C
[Form of Opinion of Counsel to Wilmington Trust Company]
October __, 2001
To Each of the Parties
Listed on Schedule A
Attached Hereto
Re: Southwest 2001-1 EETC
Ladies and Gentlemen:
We have acted as Delaware counsel to Wilmington Trust Company, a
Delaware banking corporation (in its individual capacity, "Wilmington Trust"; in
its capacity as Subordination Agent, the "Subordination Agent"; in its capacity
as Mortgagee, the "Mortgagee"; and in its capacity as Trustee, the "Trustee"),
in connection with the transactions contemplated by the Pass Through Trust
Agreement dated as of October __, 2001 (the "Basic Agreement") between
Wilmington Trust, as Trustee and
Southwest Airlines Co. ("Southwest") and the
three Trust Supplements, each dated as of October __, 2001 (the "Trust
Supplements"), in each case, between Southwest and Wilmington Trust, as Trustee,
(the Basic Agreement as supplemented by a Trust Supplement, the "Pass Through
Trust Agreement", collectively, the "Pass Through Trust Agreements"), relating
to Southwest Pass Through Trust 0000-0X-0, Xxxxxxxxx Xxxx Through Trust
2001-1A-2 and Southwest Pass Through Trust 2001-1B (collectively, the "Trusts").
This opinion is furnished at your request in connection with the Pass Through
Certificates being issued today. Capitalized terms used herein and not otherwise
defined are used as defined in the Pass Through Trust Agreements, except that
reference herein to any documents shall mean such documents as in effect as of
the date hereof.
For purposes of this letter, our review of documents has been limited
to the review of originals or copies furnished to us of the following documents:
(a) the Pass Through Trust Agreements;
(b) the Intercreditor Agreement;
(c) each of the Liquidity Facilities for the Class A-1 and Class
A-2 Trusts (the documents described in items (a) through (c)
are collectively referred to herein as the "Transaction
Documents");
To Each of the Parties Listed
on Schedule A Attached Hereto
October __, 2001
Page 2
(d) the Certificates being issued today in definitive form by the
Trusts under the Pass Through Trust Agreements (the
"Certificates");
(e) the Trust Indentures;
(f) a Certificate of Good Standing for Wilmington Trust, obtained
as of a recent date from the Secretary of State of the State
of Delaware; and
(g) one or more certificates and/or affidavits of an officer of
Wilmington Trust, dated as of October __, 2001 (collectively,
the "Officer's Certificate"), certifying as to, among other
things, the amended charter of Wilmington Trust attached
thereto (the "Charter"), the amended bylaws of Wilmington
Trust attached thereto (the "Bylaws"), and the citizenship of
Wilmington Trust.
For purposes of this letter, we have not reviewed any documents other
than the documents referenced in paragraphs (a) through (f) above and certain
written statements of governmental authorities and others referenced in this
paragraph. In particular, we have not reviewed and express no opinion as to any
other document that is referred to in, incorporated by reference into, or
attached to any of the documents reviewed by us that has not been, and is not
now executed on the date hereof, except as set forth in numbered paragraph 4.
The opinions in this letter relate only to the documents specified in such
opinions, and not to any document referred to in or incorporated by reference
into, any of such documents that has not been, and is not now executed on the
date hereof, except as set forth in numbered paragraph 4. We have assumed that
there exists no provision in any document that we have not reviewed that bears
upon or is inconsistent with or contrary to the opinions in this letter. We have
conducted no factual investigation of our own, and have relied solely upon the
documents reviewed by us, the statements and information set forth in such
documents, certain statements of governmental authorities and others (as
applicable), and the additional matters recited or assumed in this letter, all
of which we assume to be true, complete, and accurate in all respects and none
of which statements, information, and additional matters we have independently
investigated or verified.
Based upon and subject to the foregoing and subject to the assumptions,
exceptions, qualifications, and limitations in this letter, it is our opinion
that:
1. Wilmington Trust has been duly incorporated and is validly existing
as a Delaware banking corporation in good standing under the laws of the State
of Delaware, and has the corporate power and authority to execute, deliver and
perform, in its individual capacity, or as Trustee, Subordination Agent or
Mortgagee, as the case may be, the Transaction Documents,
To Each of the Parties Listed
on Schedule A Attached Hereto
October __, 2001
Page 3
and the Certificates. Wilmington Trust is a "citizen of the United States" as
defined in Section 40103(a)(15) of Title 49, U.S.C., as amended.
2. Each of the Transaction Documents has been duly authorized, executed
and delivered by Wilmington Trust in its individual capacity, or as Trustee,
Subordination Agent or Mortgagee, as the case may be, and constitutes the legal,
valid and binding obligation of Wilmington Trust in its individual capacity, or
as Trustee, Subordination Agent or Mortgagee, as the case may be, enforceable
against Wilmington Trust in its individual capacity, or as Trustee,
Subordination Agent or Mortgagee, as the case may be, in accordance with its
terms.
3. The Pass Through Trust Agreements constitute the legal, valid and
binding obligations of Southwest, enforceable against Southwest in accordance
with their terms.
4. Wilmington Trust, solely in its capacity as Trustee, has duly
authorized, issued, executed and delivered the Certificates to the holder
thereof pursuant to the terms and provisions of the Pass Through Trust
Agreements; the Certificates are duly authorized, legal, valid and binding
obligations of the Trusts, enforceable against the Trusts in accordance with
their terms and the terms of the Pass Through Trust Agreements and are entitled
to the benefits of the Pass Through Trust Agreements.
5. No authorization, consent or approval of, notice to or filing with,
or the taking of any other action in respect of, any governmental authority or
agency of the United States or the State of Delaware governing the banking and
trust powers of Wilmington Trust is required for the execution, delivery or
performance by Wilmington Trust in its individual capacity, or as Trustee,
Subordination Agent or Mortgagee, as the case may be, of the Transaction
Documents or the Certificates.
6. Neither the execution, delivery or performance by Wilmington Trust
in its individual capacity, or as Trustee, Subordination Agent or Mortgagee, as
the case may be, of the Transaction Documents or the Certificates, nor
compliance with the terms and provisions thereof, conflicts with the Charter or
Bylaws of Wilmington Trust or results in a breach or violation of any of the
terms, conditions or provisions of any law, governmental rule or regulation of
the United States or the State of Delaware governing the banking and trust
powers of Wilmington Trust or, to our knowledge, any order, writ, injunction or
decree of any court or governmental authority against Wilmington Trust or by
which it or any of its properties is bound or, to our knowledge, any indenture,
mortgage, contract or other agreement or instrument to which Wilmington Trust is
a party or by which it or any of its properties is bound, or constitutes a
default thereunder.
7. Assuming that the Trusts will not be taxable as corporations, but,
rather, will be classified as grantor trusts under subpart E, Part I of
Subchapter J of the United States Internal Revenue Code of 1986, as amended (the
"Code"), or as partnerships under Subchapter K of the Code, and assuming (a)
that the assets of the Trusts will be treated as held for investment purposes as
provided in each Pass Through Trust Agreement and (b) that the acquisition,
To Each of the Parties Listed
on Schedule A Attached Hereto
October __, 2001
Page 4
management and disposition of the assets of the Trusts (if the assets were held
by a Certificateholder directly) would not constitute an integral part of the
regular trade or business of such Certificateholder (other than the trade or
business of investing), (i) the Trusts will not be subject to any tax
(including, without limitation, net or gross income, tangible or intangible
property, net worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Delaware or any political
subdivision thereof and (ii) Certificateholders that are not residents of or
otherwise subject to tax in Delaware will not be subject to any tax (including,
without limitation, net or gross income, tangible or intangible property, net
worth, capital, franchise or doing business tax), fee or other governmental
charge under the laws of the State of Delaware or any political subdivision
thereof as a result of purchasing, holding (including receiving payments with
respect to) or selling a Certificate.
8. To our knowledge, there are no proceedings pending or threatened
against or affecting Wilmington Trust in any court or before any governmental
authority, agency, arbitration board or tribunal which, if adversely determined,
individually or in the aggregate, would materially and adversely affect the
Trusts or the right, power and authority of Wilmington Trust in its individual
capacity, or as Trustee, Subordination Agent or Mortgagee, as the case may be,
to enter into or perform its obligations under the Transaction Documents or
which would call into question or challenge the validity of any of the
Transaction Documents or the enforceability thereof.
9. Assuming that the Subordination Agent holds the Equipment Notes (as
defined in the Trust Indenture) in accordance with the provisions of the
Intercreditor Agreement, each of the Equipment Notes, when delivered to and
registered in the name of the Subordination Agent pursuant to the Intercreditor
Agreement, will be held by the Subordination Agent in trust as trustee for the
Trusts under the Pass Through Trust Agreement on behalf of the Certificateholder
of the Trusts.
The foregoing opinions are subject to the following assumptions,
exceptions and qualifications:
A. The opinions in this letter are limited to the laws of the State of
Delaware as enacted and currently in effect and the federal laws of the United
States of America governing the banking and trust powers of Wilmington Trust as
enacted and currently in effect (other than (i) federal securities laws,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, the Investment Company Act of 1940, as amended, and rules, regulations,
orders, and decisions relating thereto, (ii) Part A of Subtitle VII of Title 49
of the United States Code, as amended, and rules, regulations, orders, and
decisions relating thereto (except as stated in the second sentence in numbered
paragraph 1 above, which opinion is based solely on the Officer's Certificate),
(iii)
To Each of the Parties Listed
on Schedule A Attached Hereto
October __, 2001
Page 5
the Federal Communications Act of 1934, as amended, and rules, regulations,
orders, and decisions relating thereto, (iv) the Employee Retirement Income
Security Act of 1974, as amended, and rules, regulations, orders, and decisions
relating thereto, (v) securities laws of the State of Delaware, and rules,
regulations, orders, and decisions relating thereto, (vi) laws, rules,
regulations, orders, ordinances, and decisions of any county, town,
municipality, or special political subdivision of the State of Delaware, and
(vii) laws, rules, regulations, orders, and decisions applicable to the
particular nature of the property or activities of the Trusts) and we have
considered and express no opinion on the effect of, concerning matters
involving, or otherwise with respect to any other laws of any jurisdiction, or
rules, regulations, orders, or decisions relating thereto. Insofar as the
foregoing opinions relate to the validity and enforceability of the Transaction
Documents expressed to be governed by the laws of the State of New York, we have
assumed that each such document is legal, valid, binding and enforceable in
accordance with its terms under such laws (as to which we express no opinion).
B. The foregoing opinions relating to enforceability are subject to (i)
bankruptcy, insolvency, moratorium, reorganization, receivership, fraudulent
conveyance, preferential transfer, liquidation, and similar laws relating to or
affecting rights and remedies of creditors generally, (ii) principles of equity,
including, without limitation, applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), (iii) standards of good faith, fair dealing, course of dealing, course of
performance, materiality, and reasonableness that may be applied by a court,
considerations of public policy, and the exercise of judicial discretion, and
(iv) federal or state securities law and public policy considerations relating
to indemnification or contribution.
C. We have assumed: (i) except as stated in numbered paragraph 1 above,
the due incorporation or due formation, as the case may be, due organization,
and valid existence in good standing of each of the parties (other than natural
persons) to the documents reviewed by us under the laws of all relevant
jurisdictions; (ii) the legal capacity of all relevant natural persons, (iii)
except as stated in numbered paragraphs 2 and 4 above, the due authorization,
execution, and delivery of each of the documents reviewed by us by each of the
parties thereto; and (iv) except as stated in numbered paragraph 1 above, that
each of such parties had and has the power and authority to execute, deliver,
and perform such documents.
D. We have assumed that (i) all signatures (other than signatures by
officers of Wilmington Trust Company, in its individual capacity, or as Trustee,
as the case may be, on the Transaction Documents and the Certificates) on all
documents reviewed by us are genuine, (ii) all documents furnished to us as
originals are authentic, (iii) all documents furnished to us as copies or
specimens conform to the originals thereof, (iv) all documents furnished to us
in final draft or final or execution form conform to the final, executed
originals of such documents, (v) each document reviewed by us constitutes the
entire agreement among the parties thereto with respect to the subject matter
thereof, and (vi) except as stated in numbered paragraphs 2, 3 and 4 above, each
document reviewed by us constitutes a legal, valid and binding obligation of
each of the parties thereto, enforceable against each of such parties in
accordance with its terms.
To Each of the Parties Listed
on Schedule A Attached Hereto
October __, 2001
Page 6
E. We express no opinion concerning (i) ownership of, title to, or any
similar interest in any property, (ii) creation or attachment of any lien,
pledge, mortgage, or security interest, (iii) perfection of any lien, pledge,
mortgage, or security interest, or (iv) priority of any lien, pledge, mortgage,
or security interest.
F. For purposes of this letter, an opinion that is limited "to our
knowledge" means that, in the course of our representation of Wilmington Trust
as described above, attorneys in this firm who have worked substantively on this
letter and the transactions contemplated by the Transaction Documents, without
undertaking any investigation or verification of the subject matter of such
opinion, have not obtained actual knowledge that such opinion is incorrect.
G. We have not participated in the preparation of any offering
materials with respect to the Certificates and assume no responsibility for
their contents.
H. The opinion set forth in paragraph 1 above concerning the
citizenship of Wilmington Trust is based upon an affidavit of Wilmington Trust,
made by an authorized representative, the facts set forth in which we have not
independently verified.
This letter speaks only as of the date hereof, and we assume no
obligation to advise anyone of any changes in the foregoing subsequent to the
delivery of this letter. We consent to your relying on this letter on the date
hereof in connection with the matters set forth herein. Without our prior
written consent, this letter may not be furnished or quoted to, or relied upon
by, any other person or entity, or any governmental authority, or relied upon
for any other purpose.
In addition, the opinions in this letter are limited to the opinions
expressly stated in numbered paragraphs 1 through 9 of this letter, and no other
opinions may be inferred beyond such matters expressly stated.
Very truly yours,
SCHEDULE A
ADDRESSEES:
Southwest Airlines, Co.
Wilmington Trust Company
Westdeutsche Landesbank Girozentrale,
acting through its New York branch
Xxxxx'x Investors Service, Inc.
Standard & Poor's Ratings Services
Xxxxxxx Xxxxx Barney Inc.
X. X. Xxxxxx Securities Inc.
EXHIBIT D
[Form of Opinion of In-house Counsel of the Liquidity Provider]
October ___, 2001
To the Addressees on Schedule I hereto
Re: Xxxxxxxxx Xxxxxxxx 0000-0 Xxxx Through Trusts
Ladies and Gentlemen:
We, Westdeutsche Landesbank Girozentrale ("WestLB"), acting through our
Central Legal Department, render the following opinion in connection with (i)
the Intercreditor Agreement dated as of October ___, 2001 among Wilmington Trust
Company ("Wilmington"), as Trustee of the Southwest Airlines Pass Through Trusts
2001-1A-1, 2001-1A-2 and 2001-1B (collectively referred to as the "Pass Through
Trusts") and as Subordination Agent, and WestLB through its New York Branch (the
"Branch") as Liquidity Provider (the "Liquidity Provider"), and (ii) the two
Revolving Credit Agreements (2000-1A-1 and 2001-1A-2), each dated as of October
___, 2001 between Wilmington as Subordination Agent, as agent and trustee for
the Pass Through Trusts (other than the Class B Trust), as Borrower, and the
Liquidity Provider (the "Revolving Credit Agreements"; the Revolving Credit
Agreements and the Intercreditor Agreement being collectively referred to herein
as the "Agreements"). Capitalized terms herein which are undefined have the
meanings assigned to them in the Agreements.
In connection with the opinions hereinafter given, we have examined a
copy of the Agreements and such other certificates, documents, agreements and
instruments as we have deemed necessary as a basis for the opinions expressed
below.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all agreements, certificates, instruments and documents
submitted to us as originals, and the conformity to the originals of all
agreements, certificates, instruments and documents submitted to us as copies.
As to questions of fact material to the opinions expressed below, we have, when
relevant facts were not independently established by us, examined and relied
upon representations of officers of WestLB.
Based upon the foregoing examination and assumptions, and subject to
the qualifications set forth below, we are of the opinion that:
1) WestLB is duly organized and validly existing as a German
banking institution under the law of the State of North
Rhine-Westphalia and has full power and authority (corporate
and otherwise) to execute, deliver and perform its obligations
under the Agreements.
2) [Xxxxxxxx Xxxxxx and Xxxxxx Xxxxxx], if acting jointly for and
on behalf of the Branch, are duly authorized by WestLB to
execute and deliver the Agreements
WestLB German Law Opinion
for and on behalf of the Branch. Assuming each of the
Agreements has been duly executed and delivered for and on
behalf of the Branch by such persons acting jointly, no
further authorization by or any corporate action of WestLB is
required in connection with the execution, delivery and
performance of the Agreements.
3) (i) The governing-law clause in each of the Agreements,
subjecting the Agreements to New York law, is valid under
German law.
(ii) Under German law, New York law will be applied to an
agreement, such as the Agreements, which under German law has
been validly subjected to New York law, except to the extent
that (a) any of the terms of such agreement or any of the
provisions of New York law applicable to such agreement are
obviously irreconcilable with important principles of German
law, (b) there are mandatory provisions of German law which
must be applied to the transaction covered by such agreement
irrespective of the law which governs such agreement or (c)
all elements of the transaction covered by such agreement,
other than the choice of law, are connected with only one
country other than the country the law of which was chosen at
the time of the choice of law and there are mandatory
provisions of the law of such country applicable to such
transaction.
(iii) (a) None of the terms of the Agreements is
irreconcilable with important principles of German law, (b)
there are no mandatory provisions of German law which must be
applied to the transaction covered by the Agreements
irrespective of the law which governs the Agreements and (c)
the transaction covered by the Agreements was not connected
with only one country other than the country the law of which
was chosen at the time the choice of law was made.
(iv) Each of the Agreements constitutes the legal, valid and
binding obligation of WestLB, enforceable against WestLB in
accordance with its terms, the rules of civil procedure of
Germany and, subject to the opinion contained in paragraph
(3)(i) through (iii), the applicable provisions of the chosen
law of New York.
4) No authorization, consent, approval or other action by, and no
notice to or filing with, any governmental, administrative or
other authority or court of Germany or of the State of North
Rhine-Westphalia is required for the execution or delivery of
the Agreements by WestLB through the Branch or for the
performance by WestLB or by the Branch of the Agreements.
5) The execution, delivery and performance of the Agreements by
WestLB or the Branch will not result in any violation by
WestLB or by the Branch of any law of Germany or the State of
North Rhine-Westphalia.
6) The contractual obligations incurred by virtue of the
execution and delivery of the Agreements for and on behalf of
the Branch are the obligations of WestLB, and WestLB has no
defenses against the performance of such obligations which
WestLB German Law Opinion
are based on the fact that WestLB had acted through the Branch
in executing and delivering the Agreements.
7) Any final and conclusive judgment of the Supreme Court of the
State of New York, New York County, or of the United States
District Court for the Southern District of New York for a
definite sum for the recovery of amounts due and unpaid under
the Agreements will be held enforceable against WestLB in the
appropriate courts of Germany without re-examination or
re-litigation of the matters adjudicated, except that such
judgment is not so enforceable if any of the reasons for
excluding enforceability set forth in Section 328 (1) of the
German Code of Civil Procedure is present, in particular (i)
under the law of Germany said New York or federal court does
not have jurisdiction, (ii) WestLB has not been served with
process in a proper and timely fashion and therefore WestLB
has not been able to defend itself against the claim in the
court, (iii) the judgment conflicts with a prior judgment of a
court of Germany or a prior judgment of a foreign court that
is to be recognized in Germany, or the litigation resulting in
the judgment to be enforced conflicts with litigation
previously commenced in Germany, (iv) recognition of the
judgment would be contrary to basic principles of the law of
Germany, in particular but not limited to the constitutional
human rights, or (v) reciprocity is not insured.
8) The obligations of WestLB under the Agreements rank at least
equal in priority of payment and in all other respects with
its obligations to pay any other unsecured and unsubordinated
obligations of WestLB for borrowed money, including deposit
liabilities, that are not expressly preferred by law or in
proceedings under the German Insolvency Code
(Insolvenzordnung) or by similar laws affecting creditors'
rights generally.
The foregoing opinions are subject to the following
qualifications:
(i) The opinion in paragraph (3) with respect to
enforceability is subject to the effect of any bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar
laws affecting creditors' rights generally, applicable to
WestLB.
(ii) In giving the opinions in paragraphs (3)(iv), (6) and
(8), we have assumed, with your consent, that each of the
Agreements is legal, valid and binding under New York law, all
as set forth more fully in the opinion dated of even date
herewith of Shearman & Sterling, special counsel to the
Branch, issued in connection with the Agreements.
(iii) No opinion is expressed with respect to the law of any
jurisdiction other than the law of Germany and the State of
North Rhine-Westphalia in force as of the date hereof.
WestLB German Law Opinion
This opinion is being furnished to you solely for your benefit in
connection with the transactions described above and may not be used,
circulated, quoted or otherwise referred to for any other purpose without our
express written consent.
This opinion is governed by German law; exclusive place of jurisdiction
is Dusseldorf, Germany.
Very truly yours,
WESTDEUTSCHE LANDESBANK GIROZENTRALE
CENTRAL LEGAL DEPARTMENT
---------------------------- ------------------------------
ppa. Xxxxx Xxxxxx ppa. Xxxxx Xxxxxxxxx
SCHEDULE I
Southwest Airlines Co.
0000 Xxxx Xxxxx Xxxxx
X.X. Xxx 00000
Xxxxxx, Xxxxx 00000-0000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[other co-managers, if any]
Standard & Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Wilmington Trust Company
Corporate Trust Administration
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
EXHIBIT E
[Form of Opinion of Special Counsel to the Liquidity Provider]
October ___, 2001
To the Addressees listed on Schedule I
attached hereto
Southwest Airlines Co.
$[ ] Pass Through Certificates, Series 2001-1
Ladies and Gentlemen:
We have acted as special counsel to the New York Branch (the "Branch")
of Westdeutsche Landesbank Girozentrale ("WestLB") in connection with the
transactions contemplated by (i) that certain Intercreditor Agreement dated as
of October ___, 2001 between Wilmington Trust Company ("Wilmington"), as Trustee
of the Southwest Airlines Pass Through Trust (2001-1A-1, 2001-1A-2 and 2001-1B,
collectively referred to as the "Pass Through Trusts") and as Subordination
Agent, and WestLB, acting through the Branch, as Liquidity Provider, and (ii)
those certain two Revolving Credit Agreements (2001-1A-1 and 2001-1A-2), each
dated as of October ___, 2001 between Wilmington as Subordination Agent, as
agent and trustee for the Pass Through Trusts (other than the Class B Trust), as
Borrower, and WestLB, acting through the Branch, as Liquidity Provider (the
"Revolving Credit Agreements"; the Revolving Credit Agreements and the
Intercreditor Agreement being collectively referred to herein as the
"Agreements"). Capitalized terms used but not defined herein have the meanings
assigned to them in the Agreements.
This opinion is furnished pursuant to Section ___ of the Underwriting
Agreement dated as of October ___, 2001 among the underwriters named therein and
Southwest Airlines Co. relating to the issuance and sale of $[ ] aggregate
principal amount of Pass Through Certificates, Series 2001-1. In connection with
our opinion herein, we have participated in the preparation of, or have
examined, the Agreements. We have also examined and relied as to factual matters
upon the representations and warranties contained in or made pursuant to such
documents, and upon the originals, or copies certified or otherwise identified
to our satisfaction, of such records, documents, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as
originals and the conformity with the originals of the documents submitted to us
as copies. We have also assumed that (i) the Agreements have been duly
authorized, executed and delivered by each party thereto (except to the extent
set forth in paragraph 4 below), (ii) the consummation of the transactions
contemplated in the Agreements have been duly authorized by WestLB acting
through the Branch, and (iii) except as covered by our opinion set forth below,
the Agreements constitute the legal, valid and binding obligations of each such
party enforceable against such party in accordance with their respective terms.
Our opinion is limited to the law of the State of New York and the
federal law of the United States, and we do not express any opinion herein
concerning any other law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Superintendent of Banks of the State of New York has
authorized WestLB through the issuance of a license to
maintain a branch in the State of New York for conducting the
business of banking in the State of New York in accordance
with the provisions of Article V of the New York State Banking
Law. The Branch has the power and authority to execute,
deliver and perform the Agreements, assuming it has the power
and authority to do so under the law of the Federal Republic
of Germany and the State of North Rhine-Westphalia.
2. No consent, approval, authorization, or order of, any
governmental agency or regulatory body of the United States or
the State of New York is required for the due execution,
delivery and performance by the Branch of the Agreements other
than administrative and ministerial filings which the Branch
is obligated to make in the ordinary course of its business
(which filings we have assumed have been and will continue to
be made in a timely manner).
3. The execution and delivery by the Branch of the Agreements and
the consummation of the transactions contemplated thereby will
not result in any violation by the Branch of any banking law
or any governmental rule or regulation relating thereto of the
United States of America or the State of New York.
4. The Agreements have been duly executed and delivered by [Xx.
Xxxxxx Xxxxxx and Xx. Xxxxxxxx Xxxxxx], acting jointly, for
and on behalf of the Branch. Assuming that under the law of
the Federal Republic of Germany and the State of North
Rhine-Westphalia the contractual obligations incurred by
virtue of the execution and delivery of the Agreements for and
on behalf of the Branch are the obligations of WestLB, and
that WestLB has no defenses against the performance of such
obligations under the law of the Federal Republic of Germany
and the State of North-Rhine Westphalia which are based on the
fact that WestLB had acted through the Branch in executing and
delivering the Agreements, then, under New York law, the
Agreements constitute the legal, valid and binding obligations
of WestLB, enforceable in accordance with their respective
terms. To the extent that the power and authority of the
Branch is dependent on the power and authority of WestLB under
the law of the Federal Republic of Germany or of the State of
North Rhine-Westphalia and with respect to the due
authorization by WestLB of [Xx. Xxxxxx and
2
Xx. Xxxxxx], acting jointly, to execute and deliver the
Agreements for and on behalf of the Branch, we have, with your
approval, relied without independent investigation upon the
opinion (including the qualifications, assumptions, and
limitations expressed therein) of the Central Legal Department
of WestLB, dated the date hereof, addressed to you.
Our opinion set forth above in paragraph 4 is subject to (a) the effect
of applicable liquidation, receivership, bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally, including, without limitation, creditors of WestLB and creditors of
the Branch and (b) the effect of general principles of equity (regardless of
whether considered in proceedings in equity or at law), as well as concepts of
good faith and fair dealing.
This opinion is being furnished to you solely for your benefit and may
not be used, circulated, quoted or otherwise referred to for any other purpose
without our express written consent.
Very truly yours,
JHH/HD/BT
3
SCHEDULE I
ADDRESSEES:
Southwest Airlines Co.
Westdeutsche Landesbank Girozentrale, New York Branch
Salomon Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
[other co-managers, if any]
Wilmington Trust Company
Standard & Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc.
Xxxxx'x Investors Service, Inc.
4
