Exhibit 1.2
SABRE HOLDINGS CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
August 2, 2001
From time to time, SABRE HOLDINGS CORPORATION, a Delaware
corporation (the "COMPANY"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "UNDERWRITING AGREEMENT"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (File No.
333-32106), including a prospectus, relating to the Debt Securities and has
filed with, or transmitted for filing to, or expects promptly hereafter to file
with or transmit for filing to, the Commission a prospectus supplement (the
"PROSPECTUS SUPPLEMENT") specifically relating to the Offered Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "BASIC PROSPECTUS" means the prospectus included in the
Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement specifically relating to the Offered
Securities 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," "AMENDMENT" and "AMEND" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are 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
"EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or (to the Company's
knowledge) threatened by the Commission.
(b) (i) Each document, if any, filed or to be
filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will
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comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable,
will not contain any 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, (iii)
the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this paragraph do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole ( a
"MATERIAL ADVERSE EFFECT").
(d) Each subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 1-02(w) of
Regulation S-X of the Exchange Act has been duly formed, is
validly existing in good standing under the laws of the
jurisdiction of its organization, has the requisite power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued equity
interests of each such subsidiary of the Company have been
duly and validly authorized and issued and, as to shares of
capital stock of any corporation constituting a subsidiary,
are fully paid and non-assessable and in each case such equity
interests (except for directors' qualifying shares as
disclosed in the Registration Statement or the Prospectus) are
owned by the Company directly or indirectly through another
such subsidiary, free and clear of all liens, encumbrances,
equities or claims.
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(e) This Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms (assuming it is a valid and binding agreement on the
Trustee), subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity.
(g) The Offered Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and
general principles of equity.
(h) The Offered Securities and the Indenture
conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus
Supplement.
(i) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Offered
Securities will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Indenture or the Offered Securities, except
such as have been obtained under the Securities Act or the
Trust Indenture Act or such as may be required by the
securities or Blue Sky laws of the various states and the
securities laws of jurisdictions outside the United States in
connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse
change, or any development reasonably likely to result in a
material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
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(k) There are no legal or governmental
proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(l) Each preliminary prospectus filed as part of
the registration statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
(o) There are no costs or liabilities associated
with the Company's and its subsdiaries' compliance with
Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(p) The Company has complied with all provisions
of Section 517.075, Florida Statutes relating to doing
business with the Government of Cuba or with any person or
affiliate located in Cuba.
2. RESERVED.
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3. TERMS OF PUBLIC OFFERING. The Company is advised by
the Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
4. PAYMENT AND DELIVERY. Except as otherwise provided in
this Section 4, payment for the Offered Securities shall be made to the Company
in Federal or other funds immediately available at the time and place set forth
in the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Offered Securities
to the Underwriters duly paid.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of
the Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any
review for a possible change that does not indicate
the direction of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating
organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any
change, or any development likely to result in a
change, in the condition, financial or otherwise, or
in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the
date of this Agreement) that, in the judgment of the
Manager and in consultation with the Company, is
material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and signed
by an authorized officer of the Company, to the effect set
forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date. The officer
signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
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(c) The Underwriters shall have received on the
Closing Date an opinion of Xxxxx X. Xxxxxxxx, Executive Vice
President and General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly
incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and
authority to own its property and to conduct its
business as described in the Prospectus and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property
requires such qualification, except to the extent
that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect;
(ii) each subsidiary of the Company that
is a "significant subsidiary" within the meaning of
Rule 1-02(w) of Regulation S-X of the Exchange Act
has been duly formed, is validly existing in good
standing under the laws of the jurisdiction of its
organization, has the requisite power and authority
to own its property and to conduct its business as
described in the Prospectus and is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure
to be so qualified or be in good standing would not
have a Material Adverse Effect;
(iii) this Agreement has been duly
authorized, executed and delivered by the Company;
and
(iv) the statements (A) in the
Registration Statement under Item 15, (B) in "Item 3
- Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference
in the Prospectus and (C) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly
reports on 10-Q, if any, filed since such annual
report, in each case to the extent that they
constitute matters of law, summaries of legal matters
or documents or legal conclusions, have been reviewed
by such counsel and were correct in all material
respects, at the time such documents were filed. In
addition, no change or changes has or have occurred
with regard to any of the statements contained in (A)
through (C) above that, individually or collectively,
has given rise or is likely to give rise to a
Material Adverse Effect or would require additional
disclosure to be made under applicable federal or
state securities laws.
(d) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxx Xxxx & Xxxxxxxx LLP, special
counsel for the Company, dated the Closing Date, to the effect
that:
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(i) the Indenture has been duly
qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement
of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency,
or similar laws affecting creditors' rights generally
and general principles of equity;
(ii) the Offered Securities have been
duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting
Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations
of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency,
or similar laws affecting creditors' rights generally
and general principles of equity;
(iii) the Registration Statement was
declared effective under the Securities Act as of
April 17, 2000; any required filing of the Prospectus
pursuant to Rule 424(b) of the Securities Act has
been made within the time period prescribed by the
applicable rules and regulations; and, to the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened
by the Commission;
(iv) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and
the Offered Securities will not (i) contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Company or, (ii) to
the best of such counsel's knowledge, contravene any
agreement or other instrument binding upon the
Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a
whole, or, (iii) to the best of such counsel's
knowledge, contravene any judgment, order or decree
of any court or governmental body or agency of the
United States of America, the State of New York, the
State of Texas or the State of Delaware (pursuant to
the DGCL) having jurisdiction over the Company or any
subsidiary, or, (iv) require any consent, approval,
authorization or order of, or qualification or
registration with, any governmental body or agency of
the United States of America or the State of New
York, the State of Texas or the State of Delaware
(pursuant to the DGCL), or, to the best of such
counsel's knowledge, require any consent, approval,
authorization or order of, or qualification or
registration with any court of the United States of
America or the State of New York, the State of Texas
or the State of Delaware (pursuant to the DGCL), for
the issuance or sale of the Offered Securities or the
performance by the Company of its obligations under
this Agreement, the Indenture or the Offered
Securities except such as have been obtained under
the Securities
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Act or the Trust Indenture Act or such as may be
required by the securities or Blue Sky laws of the
various states in connection with the offer and sale
of the Offered Securities;
(v) the statements in the Prospectus
under the captions "Description of Notes",
"Underwriters", "Description of Debt Securities," and
"Plan of Distribution," to the extent that they
constitute matters of law, summaries of legal matters
or documents or legal conclusions, have been reviewed
by such counsel and are correct in all material
respects;
(vi) after due inquiry, such counsel
does not know of any legal or governmental
proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of
its subsidiaries is subject that are required to be
described in the Registration Statement or the
Prospectus and are not so described or of any
statutes, regulations, contracts or other documents
that are required to be described in the Registration
Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the
Registration Statement that are not described, filed
or incorporated as required;
(vii) the Company is not and, after
giving effect to the offering and sale of the Offered
Securities and the application of the proceeds
thereof as described in the Prospectus, will not be
an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended;
(viii) (A) such counsel is of the opinion
that each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the
Prospectus (except for financial data (and related
notes), statistical data and the financial statements
and schedules included or incorporated by reference
therein as to which such counsel need not express any
opinion) complied when so filed as to form in all
material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (B) nothing has come to such counsel's
attention to lead it to believe that (except for
financial data (and related notes), statistical data
and the financial statements and schedules included
or incorporated by reference therein as
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to which such counsel need not express any belief and
except for that part of the Registration Statement
that constitutes the Form T-1 heretofore referred to)
each part of the Registration Statement, when such
part became effective, contained and, as of the date
such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, (C) such counsel is of the opinion that
the Registration Statement and Prospectus (except for
financial data (and related notes), statistical data
and the financial statements and schedules included
or incorporated by reference therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the Securities Act
and the applicable rules and regulations of the
Commission thereunder and (D) nothing has come to
such counsel's attention to lead it to believe that
(except for financial data (and related notes),
statistical data and the financial statements and
schedules included or incorporated by reference
therein as to which such counsel need not express any
belief) the Prospectus as of its date and as of the
date such opinion is delivered contained or contains
any untrue statement of a material fact or omitted or
omits 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.
(e) The Underwriters shall have received on the
Closing Date an opinion of Shearman & Sterling, special
counsel for the Underwriters, dated the Closing Date, covering
the matters referred to in Sections 5(c)(iii), 5(d)(i),
5(d)(ii) and 5(d)(v) (but only as to the statements in the
Prospectus under "Description of Notes", "Underwriters",
"Description of Debt Securities" and "Plan of Distribution")
and clauses 5(d)(viii)(B), 5(d)(viii)(C) and 5(d)(viii)(D)
above.
With respect to Section 5(d)(viii) above, Xxxxxx Xxxx &
Xxxxxxxx may state that such counsel has acted as special counsel to the Company
in the preparation of the Prospectus and any amendments or supplements thereto
and that their opinions and beliefs are based upon their participation in the
preparation of the Prospectus and any amendments or supplements thereto and
review and discussion of the contents of the Registration Statement and
Prospectus and any amendments or supplements thereto (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified, and such counsel is not passing upon and such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (other than as set forth in Section 5(d)(v) above). With respect to
clauses 5(d)(viii)(B), 5(d)(viii)(C) and 5(d)(viii)(D) above, Shearman &
Sterling may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinion of Xxxxxx Xxxx & Xxxxxxxx described in Section
5(d) above shall be rendered to the Underwriters at the request of the Company
and shall so state therein.
(f) The Underwriters shall have received a
letter, dated the date of an Underwriting Agreement and
Closing Date, in form and substance reasonably satisfactory to
the Underwriters, from the Company's independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
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6. COVENANTS OF THE COMPANY. In further consideration of
the agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish the Manager, without charge, 5
signed copies of the Registration Statement (including
exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits
thereto) and to furnish the Manager in New York City, without
charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus with respect to the
Offered Securities, to furnish to the Manager a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date
of the public offering of the Offered Securities as in the
opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to
the Company) to which Offered Securities may have been sold by
the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered
Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Manager shall reasonably
request; provided, however, that in no event shall the Company
be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than
those arising out of the offering or sale of the Offered
Securities, in any jurisdictions where it is not now so
subject.
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable an
earning statement covering a twelve month period beginning on
the first day of the first full fiscal quarter after the date
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of this Agreement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder. If such
fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered
thereby.
(f) During the period beginning on the date of
the Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than
(i) the Offered Securities and (ii) commercial paper issued in
the ordinary course of business), without the prior written
consent of the Manager.
(g) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection
with the registration and delivery of the Offered Securities
under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers,
in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered
Securities to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Offered Securities
under state law and all expenses in connection with the
qualification of the Offered Securities for offer and sale
under state law as provided in Section 6(d) hereof, including
filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) the fees and disbursements of the
Trustee and its counsel, (v) all filing fees and the
reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and
qualification of the offering of the Offered Securities by the
National Association of Securities Dealers, Inc., (vi) any
fees charged by the rating agencies for the rating of the
Offered Securities, (vii) all fees and expenses in connection
with the preparation and filing of the registration statement
on Form 8-A relating to the Offered Securities and all costs
and expenses if any incident to listing the Offered Securities
on a national securities exchange or automated quotation
system, (viii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Offered
Securities, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and
expenses of any consultants
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engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses
of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) all other costs and
expenses, if any, incident to the performance of the
obligations of the Company hereunder for which provision is
not otherwise made in this Section and (x) all document
production charges and expenses of counsel to the Underwriters
incurred in connection with the preparation of the Indenture.
It is understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution", and
the last paragraph of Section 10 below, the Underwriters will
pay all of their costs and expenses, including fees and
disbursements of their counsel, and any advertising expenses
connected with any offers they may make.
7. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, its directors, its officers, its
employees and agents and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished to the Company in writing by any Underwriter through
the Manager expressly for use therein; provided, however, 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 Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law to so have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 7(a) hereof.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information furnished to the
Company in writing by such Underwriter through the Manager expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
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(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 8(a) or 8(b), such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case
of parties indemnified pursuant to Section 8(a) above, and by the Company, in
the case of parties indemnified pursuant to Section 8(b) above. Any failure to
notify the indemnifying party will not alleviate the indemnifying party of any
liability that it may have to any indemnified party, except to the extent that
the indemnifying party is prejudiced in a material respect by the indemnifying
party's failure to give such notice.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for the reasonable fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such
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proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Offered Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 8 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or the Company or any
person controlling any Underwriter or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Offered Securities.
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9. TERMINATION. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Manager, is material and adverse and (b) in the
case of any of the events specified in clauses 9(a)(i) through 9(a)(iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
10. DEFAULTING UNDERWRITERS. If on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase Offered
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate amount of
Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the amount of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Offered Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably
15
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
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UNDERWRITING AGREEMENT
August 2, 2001
SABRE HOLDINGS CORPORATION
0000 Xxxx Xxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Dear Sirs and Mesdames:
We (the "MANAGER") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "UNDERWRITERS"), and we understand that SABRE HOLDINGS
CORPORATION, a Delaware corporation (the "COMPANY"), proposes to issue and sell
$400,000,000 Principal Amount 7.35% Notes Due 2011 (the "DEBT SECURITIES") (The
Debt Securities are also referred to herein as the "OFFERED SECURITIES."). The
Debt Securities will be issued pursuant to the provisions of an Indenture dated
as of August 3, 2001 (the "INDENTURE") between the Company and SunTrust Bank, as
Trustee (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of 98.698% of the
principal amount of Debt Securities:
NAME PRINCIPAL AMOUNT OF
DEBT SECURITIES
Xxxxxxx, Xxxxx & Co. $113,333,333
Banc of America Securities LLC $113,333,333
Xxxxxx Xxxxxxx & Co. Incorporated $113,333,334
Bear, Xxxxxxx & Co. Inc. $30,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. $30,000,000
Total........................................................ $400,000,000
The Underwriters will pay for the Offered Securities upon
delivery thereof at Shearman & Sterling at 9:00 a.m. (
New York City time) on
August 7, 2001 or at such other time, not later than 5:00 p.m. (New York City
time) on August 7, 2001 as shall be designated by the Manager. The time and date
of such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated April 17, 2000, and the Prospectus Supplement dated August 2,
2001 (collectively, the "PROSPECTUS"), including the following:
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Terms of Debt Securities
Maturity Date: August 1, 2011
Interest Rate: 7.350%
Redemption Provisions: The Offered Securities may be redeemed at any time,
in whole or in part at the redemption price
described in the "Description of Notes" section
under the heading "Optional Redemption," in the
Prospectus, plus accrued interest to the date of
redemption.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2002
All provisions contained in the document entitled
Sabre
Holdings Corporation Underwriting Agreement Standard Provisions (Debt
Securities) dated August 2, 2001, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement, (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement and (iv) the several obligations of the
Underwriters hereunder shall be subject to an additional condition that the
Underwriters shall have received a letter dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information of
XxxXxxxx.xxx, Inc. contained in or incorporated by reference into the
Registration Statement and the Prospectus.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
Banc of America Securities LLC
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxxx Barney Inc.
Acting severally on behalf of themselves and the several
Underwriters named herein
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/
-----------------------------------
Name:
Title:
19
Accepted:
SABRE HOLDINGS CORPORATION
By: /s/
------------------------
Name:
Title:
20
