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EXHIBIT 4.12
REFINANCING AGREEMENT
(Southwest Airlines 1996 Trust N620SW)
Dated as of May 1, 1998
among
SOUTHWEST AIRLINES CO., as Lessee
CHRYSLER FINANCIAL CORPORATION,
as Owner Participant
ROYAL BANK OF CANADA, NEW YORK BRANCH,
as Original Loan Participant
WILMINGTON TRUST COMPANY, in its individual capacity only
as expressly provided herein and as Indenture Trustee
and Pass Through Trustee
FIRST UNION NATIONAL BANK,
in its individual capacity only as expressly provided herein
and otherwise solely as Owner Trustee
One Boeing 737-3H4 Aircraft
(Southwest Airlines 1996 Trust N620SW)
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INDEX TO REFINANCING AGREEMENT
(Southwest Airlines 1996 Trust N620SW)
Section 1. Refinancing of Original Certificate
Section 2. Adjustments to Exhibits to the Lease
Section 3. Conditions Precedent
Section 4. Representations and Warranties
Section 5. Notices
Section 6. Expenses
Section 7. Miscellaneous
EXHIBIT A Maturity Dates, Principal Amounts and Interest Rates, Etc.
of Series SWA 1996 Trust N620SW Certificates
EXHIBIT A-1 Payment Dates and Payment Percentages and Amounts
EXHIBIT A-2 Issuance of Series SWA 1996 Trust N620SW Certificates
EXHIBIT B Form of First Amendment to Trust Indenture
EXHIBIT C Form of First Amendment to Sale and Lease Agreement
EXHIBIT D Form of First Amendment to Participation Agreement
EXHIBIT E Form of First Amendment to Tax Indemnity Agreement
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REFINANCING AGREEMENT
This REFINANCING AGREEMENT dated as of May 1, 1998, among (i) SOUTHWEST
AIRLINES CO., a Texas corporation ("Lessee"), (ii) CHRYSLER FINANCIAL
CORPORATION, a Michigan corporation ("Owner Participant"), (iii) FIRST UNION
NATIONAL BANK, a national banking association, not in its individual capacity
except as otherwise expressly provided herein, but solely as Owner Trustee
("Owner Trustee"), under that certain Trust Agreement establishing the Southwest
Airlines 1996 Trust N620SW and dated as of June 1, 1996, between Owner
Participant and Owner Trustee, (iv) WILMINGTON TRUST COMPANY, a Delaware banking
corporation, not in its individual capacity except as otherwise provided herein,
but solely as trustee under the Pass Through Trust Agreement, dated as of
February 1, 1993 (the "Basic Agreement"), between Lessee and Wilmington Trust
Company, as supplemented by Trust Supplement No. 1998-A thereto, dated as of May
1, 1998 creating 1998-A Pass Through Trust (such Basic Agreement as so
supplemented, being the "Pass Through Trust Agreement", and Wilmington Trust
Company, in its capacity as trustee under the Pass Through Trust Agreement,
being the "Pass Through Trustee"), (v) WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity except as otherwise provided
herein, but solely as indenture trustee ("Indenture Trustee") under the related
Trust Indenture and Security Agreement dated as of June 1, 1996, as
supplemented, between Indenture Trustee and Owner Trustee and (vi) ROYAL BANK OF
CANADA, a Canadian chartered bank, acting through its New York Branch ("Original
Loan Participant").
W I T N E S S E T H:
WHEREAS, Lessee, Owner Participant, Owner Trustee, Original Loan
Participant and Indenture Trustee entered into a Participation Agreement, dated
as of June 1, 1996 (the "Original Participation Agreement"; all capitalized
terms used herein without definition shall have the meanings set forth in or by
reference in the Original Participation Agreement; the Original Participation
Agreement as amended by the First Amendment to Participation Agreement (as
defined below) being herein called the "Participation Agreement"), providing for
the sale and lease of one Boeing Model 737-3H4 aircraft, bearing U.S.
registration number N620SW;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Participant entered into a Trust Agreement
establishing the Southwest Airlines 1996 Trust N620SW and dated as of June 1,
1996 (the "Trust Agreement") with Owner Trustee in its individual capacity,
pursuant to which Trust Agreement the Owner Trustee agreed, among other things,
to hold the Trust Estate defined in Section 1.01 of such Trust Agreement for the
benefit of Owner Participant thereunder;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Trustee and Indenture Trustee entered into a
Trust Indenture and Security Agreement relating to the Aircraft, dated as of
June 1, 1996 (such Trust Indenture and Security Agreement as supplemented by
Trust Agreement and Trust Indenture and Security Agreement Supplement, dated
June 3, 1996 relating to the Aircraft being herein called the "Original
Indenture"; the Original Indenture as amended by the First Amendment to Trust
Indenture (as defined below) being herein called the "Indenture"), for the
benefit of Original Loan Participant (and, upon the
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issuance of the Equipment Notes (as defined below), the Holders of the Equipment
Notes issued thereunder), pursuant to which Original Indenture, among other
things, a certificate substantially in the form set forth in Exhibit A thereto
(the "Original Certificate") was issued to Original Loan Participant as evidence
of the loan then being made by Original Loan Participant to Owner Trustee, the
proceeds of which were applied by Owner Trustee to the payment of Lessor's Cost
for the Aircraft;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Trustee and Lessee entered into a Sale and Lease
Agreement, dated as of June 1, 1996 relating to the Aircraft (such Sale and
Lease Agreement as supplemented by Sale and Lease Agreement Supplement No. One
dated June 3, 1996 relating to the Aircraft being herein called the "Original
Lease"; and the Original Lease as amended by the First Amendment to Lease
Agreement (as defined below) being herein called the "Lease"), relating to the
Aircraft whereby, subject to the terms and conditions set forth in the Original
Lease, Owner Trustee agreed to buy from and lease to Lessee, and Lessee agreed
to sell to and lease from Owner Trustee, the Aircraft on the Delivery Date;
WHEREAS, concurrently with the execution and delivery of the Original
Participation Agreement, Owner Participant and Lessee entered into a Tax
Indemnity Agreement, dated as of June 1, 1996 relating to the Aircraft (the
"Original Tax Indemnity Agreement"; and the Original Tax Indemnity Agreement as
amended by the First Amendment to Tax Indemnity Agreement (as defined below)
being herein called the "Tax Indemnity Agreement");
WHEREAS, the parties hereto wish to effect a refinancing of the
Original Certificate as permitted by Section 18 of the Original Participation
Agreement as part of a refinancing transaction;
WHEREAS, Owner Trustee has agreed, in connection with the refinancing
of the Original Certificate, to issue one or more Equipment Notes substantially
in the form set forth in Exhibit A-1 to the Indenture (for the purposes hereof,
"Equipment Notes" shall have the meaning set forth for the term "Series SWA 1996
Trust N620SW Certificates" in the Indenture) to the grantor trust created on the
Closing Date (as defined below) by the Pass Through Trust Agreement, and Pass
Through Trustee will thereafter issue one or more Pass Through Certificates
substantially in the form of Exhibit A to the Pass Through Trust Agreement (the
"Pass Through Certificates");
WHEREAS, to facilitate Owner Trustee's sale of the Equipment Notes to
the Pass Through Trustee and the purchase of such Equipment Notes by Pass
Through Trustee, Lessee has duly authorized the execution and delivery of the
Pass Through Trust Agreement as the "issuer" thereunder, as such term is defined
in and solely for purposes of the Securities Act of 1933, as amended, and of the
Pass Through Certificates as the "obligor" thereunder, as such term is defined
in and solely for purposes of the Trust Indenture Act of 1939, as amended, and
is undertaking to perform certain administrative and ministerial duties
thereunder and is also undertaking to pay the fees and expenses of the Pass
Through Trustee;
WHEREAS, the proceeds from the sale of the Equipment Notes will be
applied to effect the optional refinancing of the Original Certificate; and
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WHEREAS, in connection with the refinancing transaction as contemplated
hereby, Owner Trustee and Lessee have agreed to adjust payments of Basic Rent,
Stipulated Loss Values and Termination Values and to adjust the Special Purchase
Price on the Refinancing Date in accordance with Section 3.7 of the Lease and
Section 18 of the Original Participation Agreement, and to amend Exhibits X-0,
X-0 and C of the Lease so as to reflect such adjustments;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Refinancing of Original Certificate.
(a) Subject to the satisfaction or waiver of the conditions set forth
herein at or prior to 2:00 p.m. Central time on May 29, 1998 or at such other
date and time agreed to by the parties hereto (the "Closing Date"):
(i) Pass Through Trustee shall, in accordance with Section
2.01 of the Pass Through Trust Agreement, execute, authenticate and
deliver Pass Through Certificates, dated the Closing Date and of the
maturities, in the principal amounts, bearing the interest rates and of
the other economic terms specified in the request of Lessee delivered
pursuant to such Section 2.01, and deliver such Pass Through
Certificates to the Underwriters (as defined below) as specified in
such request against payment by the Underwriters of an amount equal to
the aggregate principal amount thereof;
(ii) Owner Trustee shall, in accordance with Section 2.01 of
the Indenture, issue and deliver to Indenture Trustee one or more
Equipment Notes dated the Closing Date and of the maturities, in the
principal amounts, bearing the interest rates and reflecting the other
economic terms specified in Exhibits A, A-1 and A-2 hereto in an
aggregate principal amount of $23,882,858.75 (the "Refinancing
Amount");
(iii) Indenture Trustee shall authenticate such Equipment
Notes pursuant to Section 2.02 of the Indenture, and deliver such
Equipment Notes to Pass Through Trustee as specified in Exhibit A-2
hereto against payment by Pass Through Trustee of an aggregate amount
equal to the Refinancing Amount;
(iv) Owner Trustee shall on the Closing Date pay to Indenture
Trustee, for the account of Owner Participant, an amount equal to
accrued interest and, subject to Lessee's obligations under Section 3.4
of the Original Lease, Break Amount (as defined in the Original
Indenture), if any, owing to the Original Loan Participant on the
Closing Date; and
(v) Indenture Trustee shall disburse to Original Loan
Participant the amount of principal, interest and Break Amount, if any,
owing to Original Loan Participant on the Closing Date with respect to
the Original Certificate in connection with the refinancing of the
Original Certificate in accordance with Sections 2.08 and 15.03 of the
Original Indenture and Section 18 of the Original Participation
Agreement.
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Owner Participant, by its execution and delivery hereof, requests and directs
Owner Trustee, in accordance with Section 5.02 of the Trust Agreement, to
execute and deliver this Agreement, the First Amendment to Participation
Agreement, the First Amendment to Lease Agreement and the First Amendment to
Trust Indenture.
(b) On the Closing Date, subject to the receipt by Original Loan
Participant of the aggregate amount payable to it as provided for in Section
18(a) of the Original Participation Agreement, Original Loan Participant shall
deliver the Original Certificate to Owner Trustee for cancellation by Indenture
Trustee. Original Loan Participant hereby authorizes and directs Indenture
Trustee to execute and deliver this Agreement, the First Amendment to
Participation Agreement, the First Amendment to Lease Agreement and the First
Amendment to Trust Indenture and to take all actions contemplated by said
agreements and amendments to effect the issuance of the Equipment Notes and the
refinancing of the Original Certificate.
(c) In case Pass Through Trustee shall fail to make the payment
described in Section 1(a)(iii) hereof, or in case Owner Trustee shall for any
reason fail to issue and deliver to Indenture Trustee the Equipment Notes
pursuant to Section 1(a)(ii) hereof, (i) the written notice given by Lessee
pursuant to Section 18(a) of the Original Participation Agreement and Section
6.03(b) of the Original Indenture with respect to the refinancing contemplated
hereby shall be deemed to have never been given (except, however, as provided in
Section 6(b) hereof), (ii) Indenture Trustee, Owner Trustee, Owner Participant
and Lessee shall have no obligation to pay to Original Loan Participant any
amount in respect of the refinancing of the Original Certificate pursuant
hereto, (iii) none of the First Amendment to Participation Agreement, the First
Amendment to Lease Agreement and the First Amendment to Trust Indenture shall be
deemed to have been delivered and (iv) the Original Certificate shall remain
outstanding and in full force and effect and shall continue to be subject to the
terms of the Original Indenture.
(d) The closing (the "Closing") of the transactions described in this
Agreement shall take place at the offices of Xxxxxx & Xxxxxx L.L.P., Houston,
Texas, or such other place as the parties hereto may agree; the parties hereby
agree that the transactions contemplated hereby shall be deemed to have occurred
simultaneously and that no transaction contemplated hereby shall be deemed to
have occurred except in conjunction with the occurrence of all such other
transactions.
(e) All payments pursuant to this Section 1 shall be made on the
Closing Date in immediately available funds to such accounts and at such banks
as specified in the Operative Agreements, or, if otherwise, as the parties
hereto shall designate in writing not less than one Business Day prior to the
Closing Date.
(f) This Agreement shall apply only to the refinancing of the Original
Certificate as described herein and not to the refinancing, redemption or
refunding of any Equipment Notes or any other Certificate (as defined in the
Indenture) issued under the Indenture.
SECTION 2. Adjustments to Exhibits to the Lease. The parties
hereto agree, by their execution and delivery hereof, that the transactions
contemplated hereby constitute a refinancing transaction as contemplated by
Section 3.7 of the Lease and Section 18 of the Participation Agreement and that
they will take all actions contemplated thereby, including the
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revision of Exhibits X-0, X-0 and C of the Lease to reflect the adjustments
contemplated thereby. Subject to the consummation of such refinancing
transaction as described herein, such revised Exhibits X-0, X-0 and C to the
Lease and the deletion of Exhibit E to the Lease shall be effective as of the
Closing Date.
SECTION 3. Conditions Precedent. The obligations of each of the
parties hereto to participate in the transactions contemplated by this Agreement
on the Closing Date are subject to the fulfillment, prior to or on the Closing
Date, of the following conditions precedent; provided, however, that it shall
not be a condition precedent to the obligations of any party hereto that any
document be produced or action taken that is to be produced or taken by such
party or any Person within such party's control; and provided, further, that
only the conditions set forth in clauses (a) and (v) of this Section 3 shall be
conditions precedent to the actions of Original Loan Participant:
(a) Pass Through Trustee shall have received, concurrently with the
payment to Indenture Trustee by Pass Through Trustee of an amount equal to the
aggregate Original Issue Price thereof, the Equipment Notes as required by
Section 1(a)(iii), and Indenture Trustee shall have received any other amounts,
including Break Amount, if any, required to be paid in connection with the
refinancing of the Original Certificate on the Closing Date and the Indenture
Trustee shall have effected a wire transfer of all amounts payable to the
Original Loan Participant as provided herein.
(b) The Equipment Notes referred to in Section 1(a)(ii) shall have been
issued and authenticated in accordance with the Indenture, and there shall have
been transferred to Indenture Trustee in immediately available funds the amounts
referred to above in Section 1(a)(iii)-(iv).
(c) Owner Trustee and Indenture Trustee shall have executed and
delivered the First Amendment to Trust Indenture and Security Agreement in
substantially the form of Exhibit B hereto (the "First Amendment to Trust
Indenture") which shall have been duly filed for recording with the FAA.
(d) Lessee and Owner Trustee shall have executed and delivered an
amendment to the Original Lease in substantially the form of Exhibit C hereto
(the "First Amendment to Lease Agreement") which shall have been duly filed for
recording with the FAA.
(e) Each of Lessee, Owner Participant, Owner Trustee, Pass Through
Trustee and Indenture Trustee shall have executed and delivered an amendment to
the Original Participation Agreement in substantially the form of Exhibit D
hereto (the "First Amendment to Participation Agreement").
(f) (i) Indenture Trustee shall have received on or prior to the
Delivery Date (A) a copy (or other documentation satisfactory to it) of the
acknowledgment copy of a properly completed Uniform Commercial Code financing
statement, reflecting Owner Trustee as debtor and Indenture Trustee as secured
party, as to the Indenture Estate, evidencing its filing with the office of the
Secretary of State of the State of North Carolina and (B) a copy (or other
documentation satisfactory to it) of the acknowledgment copy of a properly
completed Uniform Commercial Code financing statement, reflecting Lessee as
debtor and Owner Trustee as secured party (and reflecting Indenture Trustee as
assignee), as to the Lease and the Aircraft evidencing its filing with the
office of the
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Secretary of State of the State of Texas, (ii) no financing statement or similar
filing described above in clause (i) shall have been terminated or amended
subsequent to the date of its filing and (iii) Indenture Trustee shall have
received, on or prior to the Delivery Date, the only chattel-paper original of
the Original Lease and, on or prior to the Closing Date, the only chattel-paper
original of the First Amendment to Lease Agreement and shall have (and shall
have retained without interruption subsequent to its receipt thereof) possession
of each thereof on the Closing Date.
(g) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee and
Owner Participant shall have received the following documents (each of which
shall be reasonably satisfactory in form and substance to each of them):
(i) revised Exhibits X-0, X-0 and C to the Lease, as provided
for in the First Amendment to Lease Agreement; and
(ii) revised Schedule I to the Participation Agreement, as
provided for in the First Amendment to Participation Agreement.
(h) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee and
Owner Participant shall have received a certificate signed by a Responsible
Company Officer (as defined in the Indenture) of Lessee, dated the Closing Date,
certifying that:
(i) the representations and warranties contained herein of
Lessee are correct as though made on and as of the Closing Date, except
to the extent that such representations and warranties relate solely to
an earlier date (in which case such representations and warranties
shall be certified to have been correct on and as of such earlier
date);
(ii) no event has occurred and is continuing which constitutes
a Lease Event of Default or a Lease Default; and
(iii) no Event of Loss (or event which with the passage of
time or the giving of notice, or both, would constitute an Event of
Loss) has occurred with respect to the Airframe or any Engine.
(i) Each of Indenture Trustee, Owner Participant, Pass Through Trustee
and Lessee shall have received a certificate signed by a Responsible Officer (as
defined in the Indenture) of Owner Trustee, dated the Closing Date, certifying
that the representations and warranties contained herein of Owner Trustee in its
individual and trust capacities are correct as though made on and as of the
Closing Date, except to the extent that such representations and warranties
relate solely to an earlier date (in which case such representations and
warranties shall be certified to have been correct on and as of such earlier
date).
(j) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee and
Lessee shall have received a certificate signed by a Responsible Company Officer
(as defined in the Indenture) of Owner Participant, dated the Closing Date,
certifying that the representations and warranties contained herein of Owner
Participant are correct as though made on and as of the Closing Date, except to
the extent that such representations and warranties relate solely to an earlier
date (in which
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case such representations and warranties shall be certified to have been correct
on and as of such earlier date).
(k) Each of Pass Through Trustee, Owner Trustee, Owner Participant and
Lessee shall have received a certificate signed by a Responsible Officer (as
defined in the Indenture) of Indenture Trustee, dated the Closing Date,
certifying that the representations and warranties contained herein of Indenture
Trustee are correct as though made on and as of the Closing Date, except to the
extent that such representations and warranties relate solely to an earlier date
(in which case such representations and warranties are correct on and as of such
earlier date).
(l) Each of Indenture Trustee, Owner Trustee, Owner Participant and
Lessee shall have received a certificate signed by an authorized officer of Pass
Through Trustee, dated the Closing Date, certifying that the representations and
warranties contained herein of Pass Through Trustee are correct as though made
on and as of the Closing Date, except to the extent that such representations
and warranties relate solely to an earlier date (in which case such
representations and warranties are correct on and as of such earlier date).
(m) Each of Pass Through Trustee, Indenture Trustee, Owner Trustee and
Owner Participant shall have received the following:
(i) an incumbency certificate of Lessee as to the person or
persons authorized to execute and deliver this Agreement, the First
Amendment to Participation Agreement, the First Amendment to Lease
Agreement, and any other documents to be executed on behalf of Lessee
in connection with the transactions contemplated hereby and specimen
signatures of such person or persons;
(ii) a copy of the resolutions of the board of directors of
Lessee or the executive committee thereof, certified by the Secretary
or an Assistant Secretary of Lessee, duly authorizing the transactions
contemplated hereby and the execution and delivery of each of the
documents required to be executed and delivered on behalf of Lessee in
connection with the transactions contemplated hereby; and
(iii) such other documents and evidence with respect to the
other parties hereto as it may reasonably request in order to establish
the due consummation of the transactions contemplated by this
Agreement, any other Operative Agreements (as defined in the Lease),
the Underwriting Agreement dated May 21, 1998 (the "Underwriting
Agreement") among Salomon Brothers Inc, Chase Securities Inc., Xxxxxx
Brothers Inc., and NationsBanc Xxxxxxxxxx Securities LLC (collectively,
the "Underwriters") and the Lessee, and the Pass Through Trust
Agreement and the taking of all necessary corporate action in
connection therewith and compliance with the conditions herein set
forth.
(n) Each of Pass Through Trustee, Indenture Trustee, Owner Trustee and
Owner Participant shall have received a certificate signed by a Responsible
Company Officer (as defined in the Indenture) of Lessee, dated the Closing Date,
certifying that:
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(i) the Aircraft has been duly certificated by the FAA as to
type and airworthiness in accordance with the terms of the Original
Lease;
(ii) Owner Trustee's FAA Xxxx of Sale, the Original Lease, the
Original Trust Agreement and the Original Indenture have been duly
recorded with the FAA pursuant to the Act (as defined in the Lease);
(iii) the Aircraft has been registered with the FAA in the
name of Owner Trustee and Lessee has authority to operate the Aircraft;
and
(iv) the First Amendment to Lease and the First Amendment to
Trust Indenture have been duly filed for recording with the FAA.
(o) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee and
Owner Participant shall have received opinions addressed to them from Xxxxxx &
Xxxxxx L.L.P., special counsel to Lessee, substantially to the same effect as
the opinions delivered by Xxxxxxx Xxxxxxxx, Associate General Counsel of Lessee,
on the Delivery Date pursuant to Section 4(a)(xi) of the Original Participation
Agreement (but reflecting the documents delivered on the Closing Date).
(p) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee,
Owner Participant and Lessee shall have received an opinion addressed to them
from Xxxxx & Xxx Xxxxx, PLLC, special counsel for Owner Trustee, substantially
to the same effect as the opinion delivered by it on the Delivery Date pursuant
to Section 4(a)(xii) of the Original Participation Agreement (but reflecting the
documents delivered on the Closing Date).
(q) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee,
Owner Participant and Lessee shall have received an opinion addressed to them
from Morris, James, Hitchens & Xxxxxxxx, special counsel for Pass Through
Trustee and Indenture Trustee, substantially to the same effect (but with
respect also to Pass Through Trustee, the Pass Through Trust Agreement and the
other documents delivered on the Closing Date) as the opinion delivered by it on
the Delivery Date pursuant to Section 4(a)(xv) of the Original Participation
Agreement.
(r) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee,
Owner Participant and Lessee shall have received opinions addressed to them from
Xxxxxx, Xxxxx & Bockius LLP, special counsel for Owner Participant, and in-house
or other counsel to Owner Participant, substantially to the same effect as the
opinions delivered by them on the Delivery Date pursuant to Section 4(a)(xiii)
of the Original Participation Agreement (but reflecting the documents delivered
on the Closing Date).
(s) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee,
Owner Participant and Lessee shall have received an opinion addressed to them
from Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special counsel in Oklahoma City, Oklahoma,
substantially to the same effect taking into account the First Amendment to
Trust Indenture and the First Amendment to Lease Agreement, (i) as the opinion
delivered by it pursuant to Section 4(a)(xiv) of the Original Participation
Agreement on the Delivery Date and (ii) as the opinion delivered to them
subsequent to the Delivery Date pursuant to the final paragraph of Section 4(a)
of the Original Participation Agreement.
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(t) Each of Indenture Trustee, Owner Trustee, Pass Through Trustee and
Owner Participant shall have received an independent insurance broker's report,
and certificates of insurance, dated the Closing Date, substantially in the form
of the report and certificates delivered pursuant to Section 4(a)(xviii) of the
Original Participation Agreement on the Delivery Date, as to the due compliance
with the terms of Section 11 of the Lease relating to the insurance with respect
to the Aircraft and with any other agreements of Lessee with respect to such
insurance, and references in such report and certificates to (x) the
"Indenture", the "Participation Agreement", and the "Lease" shall be to such
documents as amended by the First Amendment to Trust Indenture, the First
Amendment to Participation Agreement and the First Amendment to Lease Agreement
and (y) "Additional Insureds" shall be to such term as utilized in the Lease.
(u) Original Loan Participant shall have executed and delivered a
receipt and release of indebtedness as to the Original Certificate issued to it.
(v) Original Loan Participant shall have received the notice required
pursuant to Section 6.03(b) of the Original Indenture in respect of the Closing
Date.
(w) Owner Participant shall have received the opinion of tax counsel
referenced in Section 3.7.2 of the Original Lease.
(x) Lessee and Owner Participant shall have executed and delivered an
amendment to the Original Tax Indemnity Agreement in substantially the form of
Exhibit E hereto (the "First Amendment to Tax Indemnity Agreement").
The opinions described above in clauses (o)-(s) and (w) shall be dated the
Closing Date and references therein corresponding to references in prior
opinions to the "Indenture", the "Participation Agreement", or the "Lease" shall
be to such documents as amended by the First Amendment to Trust Indenture, the
First Amendment to Participation Agreement, and the First Amendment to Lease
Agreement, respectively.
Promptly upon the recording with the FAA of the First Amendment to
Trust Indenture and the First Amendment to Lease Agreement, Lessee will cause
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, special counsel in Oklahoma City, Oklahoma, to
deliver to the parties hereto an opinion as to the due recording thereof and the
lack of filing of any intervening documents with respect to the Aircraft (other
than the Original Indenture and the Original Lease).
Each of the parties hereto agrees to instruct its counsel to prepare
and deliver the respective opinions described above in clauses (o)-(s) and to
address each such opinion to the Underwriters in addition to the respective
addressees set forth above (and, to the extent such opinions do not restate or
confirm the opinions rendered on the Delivery Date, such counsel shall authorize
the Underwriters to rely on opinions rendered on the Delivery Date).
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SECTION 4. Representations and Warranties.
(a) Lessee's Representations and Warranties. Lessee represents and
warrants to Indenture Trustee, Owner Trustee, Pass Through Trustee and Owner
Participant that:
(i) it is a corporation duly organized and validly existing in
good standing pursuant to the laws of the State of Texas, is a "citizen
of the United States" (as defined in Section 40102 of Title 49, U.S.C.)
holding an air carrier operating certificate issued by the Secretary of
Transportation pursuant to Chapter 447 of Title 49, U.S.C. for aircraft
capable of carrying 10 or more individuals or 6,000 pounds or more of
cargo, has the corporate power and authority to carry on its business
as now conducted, to own or hold under lease its properties, to hold
under lease the Aircraft and to enter into and perform its obligations
under this Agreement, the other Operative Agreements to which it is or
is to be a party (the "Relevant Operative Documents") and the Pass
Through Trust Agreement (together with this Agreement and the Relevant
Operative Documents, collectively, the "Lessee Documents"), is duly
qualified to do business as a foreign corporation in good standing in
each state in which the nature of its business makes such qualification
necessary or the failure to be so qualified or so to be in good
standing would have a material adverse effect on its businesses or
operations or would impair its ability to perform its obligations under
the Lessee Documents, and has its chief executive office (as such term
is defined in Article 9 of the Uniform Commercial Code) at 0000 Xxxx
Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000;
(ii) the execution, delivery and performance of the Lessee
Documents (A) have been duly authorized by all necessary corporate
action on the part of Lessee, (B) do not require any shareholder
approval, or approval or consent of any trustee or holder of any
indebtedness or obligations of Lessee, or of any lessor under any lease
to Lessee, except such as have been duly obtained and are in full force
and effect, and (C) do not and will not (1) contravene any law,
judgment, governmental rule, regulation or order binding on Lessee or
any of its subsidiaries or the articles of incorporation or by-laws of
Lessee (each as amended to date) or (2) contravene or result in any
breach of the provisions of, or constitute a default under, or result
in the creation of any Lien (other than as permitted under the Lease)
upon any property of Lessee under, its articles of incorporation or
by-laws, or any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, lease, note or bond purchase agreement,
license, bank loan or credit agreement or other agreement to which
Lessee is a party or by which it or any of its properties may be bound
or affected;
(iii) neither the execution and delivery by Lessee of the
Lessee Documents, nor the performance by Lessee of its obligations
thereunder, requires the consent or approval of, the giving of notice
to, or the registration with, or the taking of any other action in
respect of, the FAA, the DOT, the SEC, any court or any other federal,
state or foreign governmental authority or agency except for (t) the
orders, permits, waivers, exemptions, authorizations and approvals of
the regulatory authorities having jurisdiction over the operation of
the Aircraft by Lessee, which orders, permits, waivers, exemptions,
authorizations and approvals have been duly obtained and are in full
force and effect, (u) the registration of the issuance and sale of the
Pass Through Certificates to be issued pursuant to the provisions of
the Pass Through Trust Agreement under the Securities Act and under the
securities laws of any state
REFINANCING AGREEMENT [N620SW]
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