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Exhibit 1.3
SOUTHWEST AIRLINES CO.
Pass Through Certificates, Series 1995-Al
Pass Through Certificates, Series 1995-A2
Pass Through Certificates, Series 1995-A3
Pass Through Certificates, Series 1995-A4
UNDERWRITING AGREEMENT
September 20, 1995
SALOMON BROTHERS INC
XXXXXX XXXXXXX & CO. INCORPORATED
c/o SALOMON BROTHERS INC
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Southwest Airlines Co., a Texas corporation (the "Company"),
proposes that Wilmington Trust Company, acting not in its individual capacity
but solely as pass through trustee (the "Trustee") under the Pass Through Trust
Agreement dated as of February 1, 1993 (the "Basic Agreement"), as supplemented
for each series (each, a "Series") of pass through certificates (the "Pass
Through Certificates") to be purchased hereunder by a separate Trust Supplement
(each, a "Trust Supplement"), in each case between the Company and the Trustee
(for each Series, the Basic Agreement, as supplemented by the related Trust
Supplement, being referred to herein as the "Pass Through Agreement"), issue
and sell to the underwriters named in Schedule I hereto its Pass Through
Certificates in the aggregate principal amounts and with the applicable
interest rates and final distribution dates set forth on Exhibit A hereto (the
"Offered Certificates") on the terms and conditions stated herein and in
Schedule II. As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms named as Underwriter or
Underwriters in Schedule I and the term "you" shall mean the Underwriter or
Underwriters, if no underwriting syndicate is purchasing the Offered
Certificates, or the representative or representatives of the Underwriters, if
an underwriting syndicate is purchasing the Offered Certificates, as indicated
in Schedule I.
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Each Series of Pass Through Certificates will represent
interests in a separate trust (each, a "Pass Through Trust") established
pursuant to the related Pass Through Agreement to fund the purchase of
equipment trust certificates ("Equipment Notes") which are to be issued as
nonrecourse obligations by certain owner trustees, each acting not in its
individual capacity but solely as owner trustee (each, an "Owner Trustee"), in
connection with separate leveraged lease transactions entered into by the
Company, in each case to refinance a portion of the payment by such Owner
Trustees of the purchase price for specified aircraft that have been leased by
the Company (the "Aircraft"). Each series of Equipment Notes will be issued
under a separate Trust Indenture and Security Agreement between Wilmington
Trust Company, as Indenture Trustee (the "Indenture Trustee") and the related
Owner Trustee (each, an "Indenture" and, collectively, the "Indentures").
The Company has filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (No. 33-54587
and No. 33-59113) for the registration of pass through certificates, including
the Offered Certificates, 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 statements have 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 Offered Certificates. The term
"Registration Statement" means collectively the above-referenced registration
statements in the forms in which they 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 Offered 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 you for
such use. The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Offered 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").
Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in or pursuant to the Pass Through
Agreements or the Indenture relating
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to each related series of Equipment Notes, provided, however, that as used
herein the term "Operative Agreements" shall include the Operative Agreements
as amended, the Note Purchase Agreements and the Pass Through Agreements.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to you and to
each Underwriter named in Schedule I, as of the date hereof, as follows:
(i) Due Incorporation and Qualification. 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.
(ii) Registration Statement and Prospectus. 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 or an Annual Report on Form
10-K 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 an untrue statement of a
material fact or omit to state a 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 an untrue statement of a material fact or omit to state a
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 that part of the Registration Statement which
constitutes the Indenture 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.
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(iii) Incorporated Documents. 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 an untrue statement of a material fact or omit to state a
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) Financial Statements. The consolidated financial
statements of the Company included or incorporated by reference in the
Prospectus and the Registration Statement present fairly 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 periods
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) Material Changes or Material Transactions. 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) Status as Air Carrier. 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" (herein so-called) 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.
(b) Additional Certifications. 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 Offered 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.
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SECTION 2. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein and in Schedule II, if any, 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
the purchase price specified in Exhibit A hereto, the respective principal
amounts of such Offered Certificates set forth opposite the name of such
Underwriter in Schedule I hereto.
SECTION 3. Delivery and Payment.
(a) Payment of the purchase price for any Offered
Certificates to be purchased by the Underwriters shall be made at the offices
of Southwest Airlines Co., 0000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000, or at
such other place as shall be agreed upon by you and the Company, at 9:00 A.M.,
Dallas time, on the 10th business day (unless postponed in accordance with the
provisions of Section 10) following the date hereof or at such other date, time
or location specified in Schedule II, or as otherwise shall be agreed upon by
you and the Company (such time and date being referred to as the "Closing
Time"). Unless otherwise specified in Schedule II, delivery of the Offered
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 Offered
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 Time. Such Offered Certificates, which may
be in temporary form, will be made available for examination and packaging by
you in New York, New York, on or before the first business day prior to the
Closing Time, or at such other time and place specified in Schedule II.
(b) As compensation to you for your commitments and
obligations hereunder in respect of the Offered Certificates, including your
undertakings to distribute Offered Certificates, the Owner Trustees will pay
(or cause to be paid) to you an amount equal to that percentage of the
aggregate principal amount of each Series of Offered Certificates purchased by
you as set forth in Exhibit A; provided that if the Owner Trustees do not pay
such amounts when due, the Company will pay such amounts and seek reimbursement
from the Owner Trustees. Such payment shall be made simultaneously with the
payment by you to the Trustee of the purchase price of the Offered Certificates
as specified in Sections 2 and 3(a) hereof. Payment of such compensation shall
be made by wire transfer of Federal or other immediately available funds.
SECTION 4. Offering by Underwriters.
It is understood that the several Underwriters propose to
offer the Offered Certificates for sale to the public as set forth in the
Prospectus.
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SECTION 5. Agreements.
The Company covenants with the several Underwriters that:
(a) Prospectus Supplement. 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 Offered Certificates covered thereby, the terms of the Offered
Certificates not otherwise specified in the Basic Prospectus, the names of the
Underwriters participating in the offering and the principal amount of the
Offered 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 Offered 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 Offered
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 furnish to the Underwriters named therein as many copies
of the Prospectus as you shall reasonably request.
(b) Notice of Certain Events. 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) Notice of Certain Proposed Filings. For so long as a
Prospectus is required to be delivered in connection with the Offered
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) Copies of the Registration Statement and the
Prospectus. 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
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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 Offered
Certificates.
(e) Revisions of Prospectus -- Material Changes. If at
any time when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered 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 statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Earnings Statements. With respect to the sale of the
Offered 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) Blue Sky Qualifications. The Company will endeavor,
in cooperation with you, to qualify the Offered 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 Offered 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 Offered Certificates
have been qualified as provided above.
(h) Stand-Off Agreement. The Company will not, between
the date of this Agreement and termination of any trading restrictions with
respect to the Offered Certificates or the Closing Time, whichever is later,
without your prior written consent, offer or sell, or enter into any agreement
to sell, any U.S. dollar denominated taxable debt securities of the Company
with a maturity of more than one year (other than the Offered Certificates
which are to be sold pursuant hereto and commercial paper in the ordinary
course of business), except as may otherwise be provided in Schedule II;
provided, however, that, during such period, the Company may enter into or
borrow under any line of credit, loan agreement or other credit facility with
one or more commercial or merchant banks, regardless of the maturity of any
borrowings thereunder.
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(i) Business with Cuba. If the Company agrees that the
Offered Certificates should be qualified for sale in Florida and they have been
so qualified, the Company has complied with and, until the Closing Time or such
later date as the distribution of the Offered Certificates is completed, but no
longer than the period during which the Prospectus is required to be delivered
under the 1933 Act, will comply with the provisions of Section 517.075 of the
Florida blue sky law and, if applicable, all regulations promulgated thereunder
relating to issuers doing business with Cuba.
SECTION 6. Conditions to the Obligations of Underwriters.
The several obligations of the Underwriters to purchase the
Offered 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, or
in Schedule II hereto, on its part to be performed and observed and to the
following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing
Time, (i) the Prospectus, and any supplement thereto, shall have been filed
within the time period required by Rule 424(b); (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,
and (iii) the rating assigned as of the date of this Agreement by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g) under the 1933 Act Regulations, to any debt
securities of the Company shall not have been lowered since the execution of
this Agreement.
(b) Legal Opinions. At the Closing Time, you shall have
received the following opinions:
(1) Opinion of Company Counsel. The opinion or opinions
of the Associate General Counsel of the Company, dated as of such
date, in form and substance satisfactory to you, to the effect 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 the Company has corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus.
(ii) This Agreement has been duly authorized,
executed and delivered by the Company.
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(iii) The Pass Through Agreements have each been
duly authorized, executed and delivered by the Company and
each is a valid and binding obligation of the Company
enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity.
(iv) The Pass Through Agreements each constitute
the valid and binding obligation of the Trustee, enforceable
in accordance with its terms, except as may be limited by
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity.
(v) The Offered Certificates have been duly
authorized, executed, delivered and authenticated by the
Trustee pursuant to the Pass Through Agreements and
constitute valid and binding obligations of the Trustee
enforceable against the Trustee in accordance with their
terms except as may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity; and the
holders of Offered Certificates are entitled to the benefits
of the related Pass Through Agreement.
(vi) The Offered Certificates, the Pass Through
Agreements and the other Operative Agreements conform in all
material respects as to legal matters to the descriptions
thereof, if any, contained in the Prospectus and any
supplement thereto, and such description of the Offered
Certificates conforms in all material respects to the rights
set forth in the instruments defining the same.
(vii) The Leases and the other Operative Agreements
to which the Company is or is to be a party have been duly
authorized and, at the Closing Time, such documents, upon
due execution and delivery by the Company, will each be a
valid and binding obligation of the Company enforceable
against the Company in accordance with its respective terms,
except as may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally and by general principles of equity.
(viii) The Company is a citizen of the United States
(as defined in 49 U.S.C. Section 40102) holding an air
carrier operating certificate. The Company
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has such licenses and authorizations from federal aviation
and aeronautical authorities as are necessary to own its
properties and to conduct its business in the manner
described in the Prospectus, subject to such qualification
as may be set forth in the Prospectus, and for the
transactions contemplated by this Agreement and the offering
contemplated by the Prospectus.
(ix) The statements made in the Prospectus under
the heading "Description of the Equipment Notes -- Remedies
-- Section 1110 of the Bankruptcy Code," to the extent that
they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel, and
fairly present the information disclosed therein in all
material respects.
(x) No authorization, approval, consent, order or
license of or filing with or notice to any regulatory body
or authority or court (other than under the 1933 Act, the
1939 Act and the securities or Blue Sky laws of the various
states) is required for the valid authorization, issuance,
sale and delivery of the Offered Certificates as herein
contemplated or the valid authorization, execution, delivery
and performance by the Company of this Agreement, the Pass
Through Agreements and the other Operative Agreements to
which the Company is a party or the consummation by the
Company of the transactions contemplated herein or therein,
or, if so required, all such authorizations, approvals,
consents and licenses, specifying the same, including
filings under the Uniform Commercial Code as is in effect in
Connecticut and Texas, have been made or obtained and are in
full force and effect, and except for any filings or
recordings with the FAA (as to which no opinion need be
given).
(xi) To the best of such counsel's knowledge, the
execution and delivery by the Company of this Agreement, the
Pass Through Agreements and the other Operative Agreements
to which the Company is a party, the consummation by the
Company of the transactions herein and therein contemplated
and compliance with the terms of this Agreement, the Pass
Through Agreements and such Operative Agreements will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien (other than as
permitted under the Leases), charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant
to, any material contract, indenture, mortgage, deed of
trust, loan, credit or note agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company.
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(xii) The Registration Statement has become
effective under the 1933 Act and any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b)
has been made in the manner and within the time period
required by Rule 424(b); the Basic Agreement has been duly
qualified under the 1939 Act; and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the 1933 Act; the
Registration Statement and the Prospectus, and each
amendment or supplement thereto (except for the financial
statements, schedules and other financial or statistical
data and Form T-1 included therein, as to which such counsel
need express no opinion), comply as to form in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and, as to documents incorporated therein,
to the requirements of the 1934 Act and the 1934 Act
Regulations in effect at the time such documents were filed
with the Commission.
(xiii) Although counsel is not aware of any judicial
authority, none of the Pass Through Trusts is required to be
registered under the Investment Company Act of 1940, as
amended.
(xiv) Such counsel does not know of any proceedings
involving United States aviation law pending against, or
affecting the properties or licenses of, the Company, or of
any United States aviation laws or regulations that would
have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries,
considered as one enterprise, or the transactions
contemplated by this Agreement, the Note Purchase Agreements
or the Operative Agreements, that are required to be
described in the Prospectus and which are not so described.
(xv) There are no transfer taxes or similar fees
or charges under the laws of the State of Texas, or any
political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement
or any other Operative Agreements, or the issuance and sale
of the Offered Certificates to the Underwriters.
In addition, such counsel shall confirm in such opinion that
in connection with the preparation of the Registration Statement, the
Prospectus and the documents incorporated by reference therein, such
counsel or lawyers under such counsel's supervision have participated
in conferences with officers and other representatives of the Company
and its independent accountants and with your representatives and your
counsel, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed, and
that, in the course of such preparation and during the above-mentioned
conferences, no facts have come to such counsel's attention to cause
such counsel to believe (A) that the Registration Statement (except
for
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the financial statements and other financial or statistical data
included therein or omitted therefrom and the Statement of Eligibility
and Qualification of the Trustee on Form T-1, as to which such counsel
need express no opinion), at the time the Registration Statement
became effective (and if an amendment to the Registration Statement or
an Annual Report on Form 10-K 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), contained
an untrue statement of material fact or omitted to state a material
fact required to he stated therein or necessary to make the statements
therein not misleading, (B) that the Prospectus or amendment or
supplement thereto (except for the financial statements and other
financial or statistical data included therein or omitted therefrom,
as to which such counsel need express no opinion), at the time the
Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
or (C) that the documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were filed
with the Commission, included an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
In rendering such opinions, such counsel may rely, to the
extent deemed necessary for purposes of the opinion set forth in (iii)
(insofar as such opinion relates to the enforceability of the Pass
Through Agreements), (iv) and (v) above, upon the opinions of counsel
for the Trustee and Owner Trustee, as the case may be. Alternatively,
such counsel may cause the opinions set forth in (iii) (insofar as
such opinion relates to the enforceability of the Pass Through
Agreements), (iv) and (v) to be delivered directly to the Underwriters
by counsel to the Trustee or Owner Trustee, as applicable, at the
Closing Time. In addition, such counsel may cause the opinion set
forth in (vii) above to be delivered at the Closing Time directly to
the Underwriters by Xxxxxx & Xxxxxx L.L.P., Houston, Texas, special
counsel to the Company.
(2) Opinion of Special Counsel to the Company. The
opinion of Xxxxxx & Xxxxxx L.L.P., Houston, Texas, special counsel to
the Company, dated as of such date, in form and substance satisfactory
to you, to the effect that:
(i) The statements made in the Prospectus and any
supplement thereto under the headings "Federal Income Tax
Consequences" to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been
reviewed by such counsel and fairly present the information
disclosed therein in all material respects.
(ii) None of the Pass Through Trusts created by
the Pass Through Agreements will be classified as an
association taxable as a corporation for
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13
federal income tax purposes, but rather, each will be
classified as a grantor trust under Subpart E, Part I of
Subchapter J of the Internal Revenue Code of 1986, as
amended, and each Certificate Owner will be treated as the
owner of a pro rata undivided interest in each of the
Equipment Notes or any other property held in the Pass
Through Trust.
(iii) Upon consummation of the transactions
contemplated by the Note Purchase Agreements at the Closing
Time, each Owner Trustee, as lessor under the related Lease,
and the Indenture Trustee, as assignee of the Owner
Trustee's rights under such Lease pursuant to the related
Indenture, are entitled to the benefits of Section 1110 of
the Bankruptcy Code with respect to the Aircraft initially
delivered and subjected to the related Indenture (provided
that such counsel need not express an opinion as to the
availability of the benefits of said Section 1110 in the
case of a replacement of such Aircraft).
(iv) Assuming the due authorization, execution and
delivery of each Indenture by the parties thereto and
subject to any limitations of New York law governing the
banking or trust powers of the related Owner Trustee, each
Indenture constitutes valid and binding obligations of such
Owner Trustee 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 moneys and securities prior
to deposit thereof with such Indenture Trustee) that such
Indenture purports to create. Assuming due authorization,
execution and delivery by the related Owner Trustee and due
authentication by the related Indenture Trustee, the
Equipment Notes constitute valid and binding obligations of
such Owner Trustee enforceable against it in accordance with
their terms and the Equipment Notes are entitled to the
benefits and security afforded by the related Indenture.
(c) Opinion of Counsel to the Underwriters. The opinion
of Xxxxxxxx & Xxxxxxxx, counsel to the Underwriters, with respect to such
matters as you may reasonably request.
(d) Officers' Certificate. At the Closing Time, there
shall not have been, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any change, or any
development involving a prospective change, in or affecting particularly the
business or properties of the Company or its subsidiaries, considered as one
enterprise, which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the investment
quality of the Offered Certificates; and you shall have received a certificate
of the President or the Vice President-Finance and Chief Financial Officer of
the Company and the Treasurer or the Assistant Treasurer of the Company, dated
as of the Closing Time to the effect that:
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14
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Time with the same effect as if made at the Closing
Time 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 Time;
(ii) 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
(iii) 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) Comfort Letter. At the time of the execution of this
Agreement and at the Closing Time, you shall have received a letter from Xxxxx
& Young LLP or their successors as the Company's independent auditors (the
"Independent Auditors"), dated as of the date hereof and of the Closing Time,
as the case may be, in form and substance satisfactory to you to the effect
that:
(i) they are independent auditors with respect to the
Company within the meaning of the 1933 Act and the 1933 Act
Regulations;
(ii) in their opinion the consolidated financial
statements and schedules audited by them and incorporated by reference
in the Company's latest Annual Report on Form 10-K and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
or the 1934 Act and the 1934 Act Regulations, as the case may be;
(iii) on the basis of a reading of the unaudited condensed
consolidated financial statements and schedules of the Company
contained in the Company's Quarterly Reports on Form 10-Q filed with
the Commission since the date of the Company's latest Annual Report on
Form 10-K and included or incorporated by reference in the Prospectus
and the Registration Statement, and the latest available unaudited
interim financial statements of the Company, inquiries of certain
officials of the Company responsible for financial and accounting
matters, a reading of the minute books of the Company since the date
of the latest audited consolidated financial statements of the Company
incorporated by reference in the Registration Statement, and other
specified procedures and inquiries, nothing has come to their
attention that caused them to believe that:
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15
(A) such unaudited condensed consolidated
financial statements of the Company included or incorporated
by reference in the Prospectus and the Registration
Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations or the 1934 Act and the 1934
Act Regulations thereunder, as the case may be, or that,
except for any accounting changes indicated therein, such
unaudited condensed consolidated financial statements are
not presented fairly in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the latest audited consolidated
financial statements of the Company included or incorporated
by reference in the Registration Statement and Prospectus;
(B) with respect to the period subsequent to the
date of the most recent consolidated financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus, as of a specified date not
more than five business days prior to the date of delivery
of such letter, there has been any change in the capital
stock or long-term debt of the Company or, as of such date,
there has been any decrease in consolidated net current
assets or net assets, in each case as compared with amounts
shown in the most recent consolidated balance sheet of the
Company included or incorporated by reference in the
Registration Statement and the Prospectus, except in all
instances for changes or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; or
(C) for the period from the date of the most
recent consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus to such specified date, there was any
decrease in operating revenues, operating income, income
before income taxes or net income of the Company, in each
case as compared with the comparable period of the preceding
year, except in all instances for decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iv) in addition to their audit referred to in their
reports included or incorporated by reference in the Registration
Statement and the Prospectus and the review, inquiries and procedures
referred to in clause (iii) above, such letter shall state that Xxxxx
& Young LLP has performed other specified procedures, with respect to
certain numerical data and information included or incorporated by
reference in the Registration Statement and the Prospectus, as are
reasonably requested by an Underwriter and specified in such letter
and have found such data and information to be in agreement with the
accounting records of or analysis prepared by the Company.
(f) Satisfaction of Conditions Precedent in Participation
Agreements. At the Closing Time, all conditions precedent specified in each
Note Purchase Agreement with respect to the refinancing of the Equipment Notes
shall have been satisfied at the Closing Time; the
16
16
representations and warranties of the Company contained in each of the Note
Purchase Agreements shall be accurate as of the Closing Time (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 Chief Financial Officer, Treasurer or Assistant Treasurer of the Company,
dated as of the Closing Time, to such effect; and you shall have received a
copy of each opinion required to be delivered under each of the Note Purchase
Agreements, dated as of the Closing Time, and addressed to you, and of such
other documents furnished in connection with the fulfillment of such conditions
as you or your counsel may reasonably request.
(g) Other Documents. At the Closing Time, 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 Offered 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 Time, 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.
SECTION 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 Offered Certificates;
(iii) the reasonable fees and disbursements of the
Company's accountants and counsel, of the Trustee, the Owner
Trustees, and the Indenture Trustee and their respective counsel, and
of any issuing and paying agent or transfer agent;
(iv) the qualification of the Offered Certificates under
securities laws in accordance with the provisions of Section 5(g),
including filing fees and the reasonable fees and disbursements of
counsel to the Underwriters in connection therewith and in
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17
connection with the preparation of any Blue Sky Survey and any Legal
Investment 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 Offered Certificates;
(vi) the preparation and delivery to the Underwriters of
copies of the Pass Through Agreements and the other Operative
Agreements, including all expenses incident to the performance of the
Company's obligations under the Pass Through Agreements and Indentures
and the Leases and each of the other agreements and instruments
referred to in the Indentures and the Note Purchase Agreements;
(vii) any fees charged by rating agencies for the rating of
the Offered Certificates:
(viii) the fees and expenses, if any, incurred with respect
to any filing with the National Association of Securities Dealers,
Inc; and
(ix) certain fees and disbursements of your counsel, as
heretofore agreed.
If this Agreement is terminated by you in accordance with
the provisions of Section 6 or clause (i) of Section 10 hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters, or, in any other case, the Underwriters will pay all of their own
expenses, including their fees of counsel, transfer taxes on resale of any of
the Offered Certificates and any advertising expenses connected with any offers
they may make.
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
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18
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any expense (including the fees and
disbursements of counsel chosen by you), as incurred, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto), or made in
reliance upon the Trustee's Form T-1 Statement of Eligibility and Qualification
under the 1939 Act filed as an exhibit to the Registration Statement; and
provided further that the foregoing indemnity agreement, with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Certificates, or 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 the
Offered 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; and provided further that the Company will not be
liable for any loss, liability or expense of any settlement of any pending or
threatened litigation, any pending or threatened governmental agency
investigation or proceeding if such settlement is effected without the written
consent of the Company.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information
19
19
furnished to the Company by an Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel hired by such counsel),
separate from such indemnifying parties' own counsel, for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 8 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters of Offered Certificates shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company, and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on Exhibit A hereto in
respect of such offering bears to the initial public offering price appearing
thereon and the Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 9. Default by an Underwriter.
If one or more of the Underwriters participating in an
offering of Offered Certificates shall fail at the Closing Time to purchase the
Offered Certificates which it or they are obligated to purchase hereunder (the
"Defaulted Certificates"), then you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Certificates in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, during such 24 hours you shall
not have completed such arrangements for the purchase of all of the Defaulted
Certificates then:
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20
(a) if the aggregate principal amount of Defaulted
Certificates does not exceed 10% of the aggregate principal amount of
Offered Certificates to be purchased pursuant to this Agreement, the
nondefaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all nondefaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal amount of Offered
Certificates to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability to the Company and any nondefaulting
Underwriter in respect of its default under this Agreement.
In the event of any such default by any Underwriter or
Underwriters as set forth in this Section, either you or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
SECTION 10. Termination.
This Agreement shall be subject to termination, in the
absolute discretion of the Underwriters, immediately upon notice to the
Company, at any time prior to the Closing Time (i) if there has been, since the
date hereof or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business which, in the judgment of a majority in interest of the Underwriters,
materially impairs the investment quality of the Offered Certificates, or (ii)
if there shall have occurred any outbreak or escalation of hostilities in which
the United States is involved or other national or international calamity or
crisis, the effect of which on the financial markets of the United States shall
be such as to make it, in the judgment of a majority in interest of the
Underwriters, impracticable to market the Offered Certificates or enforce
contracts for the sale of the Offered Certificates as contemplated by the
Prospectus, or (iii) if trading in the Common Stock of the Company shall have
been suspended by the Commission or a national securities exchange, or if
trading generally on the New York Stock Exchange shall have been suspended, or
minimum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, by said exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by either federal or New York authorities. In the
event of any such termination of this Agreement, the covenant set forth in
Section 5(f) hereof, the provisions of Section 7 hereof, the indemnity and
contribution agreements set forth in Section 8 hereof, and the provisions of
Sections 11 and 13 hereof shall remain in effect.
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SECTION 11. Representations and Indemnities to Survive.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Certificates.
SECTION 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, with copies thereof directed to
Xxxxxxxx & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxx X. Xxxxxxxxx. Notices to the Company shall be directed to it
at Southwest Airlines Co., 0000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000,
Attention of the Vice President-Finance, with copies thereof directed to the
Treasurer and Associate General Counsel.
SECTION 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 Offered Certificates from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
SECTION 14. Applicable Law.
This Agreement and the rights and obligations of the parties
created hereby and thereby shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such state.
SECTION 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
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22
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.
23
* * *
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
---------------------------
Xxxxx Xxxxxx
Assistant Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
SALOMON BROTHERS INC
XXXXXX XXXXXXX & CO. INCORPORATED
By: Salomon Brothers Inc
By: /s/ Xxxxx X. Xxxx
---------------------------------
Xxxxx X. Xxxx, Managing Director
24
Exhibit A
SOUTHWEST AIRLINES CO.
Pass Through Certificates, Series 1995-A
Pass Through Final Underwriting
Certificates Aggregate Interest Distribution Purchase Discounts and
Designation Amount* Rate Date Price Commissions
----------- ------ ---- ---- ----- -----------
Series 1995-A1 $ 3,527,781 6.16% July 1, 1997 $ 3,527,781 $ 22,930
Series 1995-A2 3,745,091 6.29 July 1, 1998 3,745,091 24,343
Series 1995-A3 181,181,821 7.22 July 1, 2013 181,181,821 1,177,682
Series 1995-A4 49,041,464 7.64 January 1, 2018 49,041,464 318,770
------------- -------------- ------------
Total $ 237,496,157 $ 237,496,157 $ 1,543,725
============= ============== ============
* Each of the Underwriters severally and not jointly agrees to purchase
approximately 50% of the Aggregate Amount of each Series.
25
Schedule I
to
Underwriting
Agreement
Dated: September 20, 1995
SOUTHWEST AIRLINES CO.
Pass Through Certificates, Series 1995-A
Aggregate Amount Aggregate Amount Aggregate Amount Aggregate Amount
of Pass Through of Pass Through of Pass Through of Pass Through
Certificates, Certificates, Certificates, Certificates,
Underwriter Series 1995-A1 Series 1995-A2 Series 1995-A3 Series 1995-A4
----------- -------------- -------------- -------------- --------------
SALOMON BROTHERS INC $ 1,763,891 $ 1,872,546 $ 90,590,911 $ 24,520,732
XXXXXX XXXXXXX & CO. INCORPORATED 1,763,890 1,872,545 90,590,910 24,520,732
------------ ------------ ------------- -------------
Total $ 3,527,781 $ 3,745,091 $ 181,181,821 $ 49,041,464
============ ============ ============= =============
26
Schedule II
to
Underwriting
Agreement
SOUTHWEST AIRLINES CO.
Pass Through Certificates, Series 1995-A1
Pass Through Certificates, Series 1995-A2
Pass Through Certificates, Series 1995-A3
Pass Through Certificates, Series 1995-A4
Dated: September 20, 1995
To: Southwest Airlines Co.
0000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Re: Underwriting Agreement dated September 20, 1995.
Title of Offered Certificates: Pass Through Certificates, Series 1995-A1, 1995-A2, 1995-A3 and 1995-
A4
Current ratings: A/A2/A by S&P, Xxxxx'x, and Xxxx & Xxxxxx, respectively.
Interest rate: Series 1995-A1 . . . . . . . . . . . . 6.16%
Series 1995-A2 . . . . . . . . . . . . 6.29%
Series 1995-A3 . . . . . . . . . . . . 7.22%
Series 1995-A4 . . . . . . . . . . . . 7.64%
Interest payable: January 1 and July 1 of each year, commencing on January 1, 1996.
Public offering price: 100%, plus accrued interest, if any, from October 4, 1995.
Purchase price: 100%, plus accrued interest, if any, from October 4, 1995.
Closing date and location: October 4, 1995 at 9:00 a.m., Dallas time
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Location for checking
Offered Certificates: The Depository Trust Company
New York, New York
Listing requirement: None
Other terms and conditions: None
27
II-1
Exceptions, if any, to
Section 5(h) of the
Underwriting Agreement: None
SALOMON BROTHERS INC
XXXXXX XXXXXXX & CO. INCORPORATED
By: Salomon Brothers Inc
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx, Managing Director
Accepted:
SOUTHWEST AIRLINES CO.
By: /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Assistant Treasurer
