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EXHIBIT 1.1
DRAFT OF MARCH 27, 1997
NOBLE AFFILIATES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
April [ ], 1997
From time to time, NOBLE AFFILIATES, INC., 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, including a prospectus, relating
to the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter 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 threatened by the
Commission;
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(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
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 Section 1(b) 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 financial statements of the Company and its subsidiaries,
including the notes thereto, and the supporting schedules included or
incorporated by reference in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its subsidiaries as of the
dates indicated and the results of operations and changes in financial position
for the periods therein specified, and have been prepared, in conformity with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise stated therein). Any pro forma financial
information included or incorporated by reference in the Registration Statement
and Prospectus has been prepared in accordance with the rules and regulations
of the Commission with respect to pro forma financial statements, fairly
presents the information shown therein and has been properly compiled on the
pro forma basis described therein; the assumptions used in the preparation of
such pro forma financial information are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and events referred
to therein;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, or from any labor
dispute or court or governmental action, order or decree, that is material to
the Company and its subsidiaries taken as a whole (taking into account any
insurance proceeds that may have been received), otherwise than as set forth or
contemplated in the Prospectus (or indicated in the financial statements
included or incorporated by reference therein); and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any of its Common Stock other than regular
quarterly dividends;
(e) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the laws of
its jurisdiction of incorporation, has full
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power and authority (corporate and other) to conduct its business as described
in the Registration Statement and Prospectus and is duly qualified to do
business in each jurisdiction in which its ownership of real property or
interests therein or the conduct of its business requires such qualification
except where the failure to be so qualified can be remedied without material
cost to the Company or, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole;
(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 except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(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 except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(h) Except as contemplated in the Prospectus subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus neither the Company nor any of its subsidiaries has incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and its subsidiaries taken as a whole, and there has not been any
material change, or any development which could reasonably be expected to
involve a prospective material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its subsidiaries,
or any material adverse change, or any development which could reasonably be
expected to involve a prospective material adverse change, in the condition
(financial or other), business, properties, net worth or results of operations
of the Company and its subsidiaries taken as a whole;
(i) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened any action, suit, claim,
investigation or proceeding to which the Company or any of its subsidiaries is
a party, before or by any court or governmental agency or body, that could
reasonably be expected to (i) result in any material adverse change in the
condition (financial or other), business, net worth or results of operations of
the Company and its subsidiaries taken as a whole, or (ii) materially and
adversely affect the consolidated properties or assets thereof;
(j) There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement or to any of the documents
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incorporated by reference therein by the Act or the Exchange Act or by the
rules and regulations of the Commission thereunder that have not been so filed;
(k) 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 result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any agreement or
instrument to which the Company is a party or by which it is bound or to which
any of the property of the Company is subject, the Company's charter or
by-laws, or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties; no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the performance by the Company of
its obligations under this Agreement, the Indenture or the Offered Securities
except such as may be required under the Act or state securities laws;
(l) Each of the Company and its subsidiaries owns title (consistent
with customary practice in the oil and gas industry for the type and location
of the relevant properties and assets) to its material oil and gas properties,
free and clear of any encumbrances, except for liens for taxes or charges of
mechanics or materialmen not yet due or which are being challenged in good
faith, encumbrances under gas sales contracts, operating agreements,
unitization and pooling agreements and other similar agreements as are
customarily found in connection with comparable operations and title defects
that are, singly and in the aggregate, not material in amount and do not
interfere in any material respect with its use or enjoyment of such material
oil and gas properties;
(m) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is customary for
companies engaged in similar businesses in similar industries;
(n) Except as described in the Prospectus, there has been no storage,
disposal, generation, manufacture, spill, discharge, refinement,
transportation, handling or treatment of toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or to the
knowledge of the Company, any of its predecessors in interest) at, upon or from
any of the property now or previously owned or leased or under contract for
purchase by the Company or any of its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation
or remedial action which would not reasonably be expected to result in,
singularly or in the aggregate with all such violations and remedial actions,
any material adverse effect on the consolidated financial position,
shareholders' equity, results of operations or business of the Company and its
subsidiaries that has not heretofore been reflected in the Company's
consolidated financial statements; and the terms "hazardous wastes," "toxic
wastes" and "hazardous substances" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with respect
to environmental protection;
(o) 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
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Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder;
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended; and
(q) 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. 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 Underwriters' 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 Underwriters' Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this Section
4, payment for the Offered Securities shall be made by wire transfer payable to
the order of the Company in immediately available funds 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.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters shall be subject, in the discretion of the
Manager, to the condition that all representations and warranties of the
Company herein are, at and as of the date hereof and the Closing Date (as if
made on and as of such dates), true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed in all material respects, and the following additional conditions:
(a) The Prospectus in relation to the Offered Securities shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the Manager's
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Underwriters such opinion or opinions, dated the Closing Date for such Offered
Securities, with respect to the incor poration of the Company, the Offered
Securities, the Registration Statement, the Prospectus and other related
matters as the Manager may reasonably request, and such counsel shall have
received
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such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxxxx & Xxxxxx, P.C., counsel for the Company, shall have
furnished to the Underwriters their written opinion, dated the Closing Date for
such Offered Securities, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) The Company and each of Noble Gas Marketing, Inc., Noble
Trading, Inc., Samedan Oil Corporation and Energy Development
Corporation ("EDC") (each, a Material Subsidiary) has been duly
incorporated and is an existing corporation in good standing under
the laws of its jurisdiction of incorporation and has full corporate
power and authority to conduct its business as described in the
Registration Statement and Prospectus; and all of the outstanding
Offered Securities of capital stock of each Material Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise stated in the Registration
Statement) are owned beneficially by the Company subject to no
security interest or other encumbrance or claim affecting
transferability or voting;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus and all of the issued Offered Securities of capital
stock of the Company have been duly authorized and validly issued,
are fully paid, non-assessable and not subject to any preemptive or
similar right;
(iii) The Registration Statement has become effective under the
Act; and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(iv) Each part of the Registration Statement, when such part
became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission, complied
as to form in all material respects with the requirements of the Act
and the rules and regulations of the Commission thereunder; and the
documents incorporated by reference in the Registration Statement or
Prospectus or any amendment or supplement thereto, when they became
effective under the Act or were filed with the Commission under the
Exchange Act, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; it being understood that such counsel need express no
opinion as to the financial statements, schedules and other financial
data, included in any of the documents mentioned in this clause;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
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(vi) 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 legally binding agreement of
the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vii) the Offered Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture, in each case enforceable in accordance
with their respective terms except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any,
and the availability of equitable remedies may be limited by
equitable principles of general applicability and the Offered
Securities and the Indenture conform to the descriptions thereof in
the Prospectus;
(viii) The issue and sale of the Offered Securities and the
performance by the Company of its obligations under this Agreement,
the Indenture and the Offered Securities will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any material agreement or instrument
known to such counsel to which the Company is a party or by which it
is bound or to which any of the property of the Company is subject,
the Company's certificate of incorporation or by-laws, or any order,
rule or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance or sale of the Offered
Securities by the Company, except such as have been obtained under
the Act and such as may be required under state securities laws in
connection with the purchase and distribution of the Offered
Securities by the Underwriters;
(ix) the statements (A) in the Basic Prospectus under the
captions "Description of Debt Securities" and "Plan of Distribution,"
(B) in the Prospectus Supplement under the captions "Certain Terms of
the Senior Notes" or "Certain Terms of the Subordinated Notes," as
applicable, and "Underwriting," (C) in the Registration Statement
under Item 15, (D) in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference in
the Prospectus and (E) in "Item 1 - Legal Proceedings" of Part II of
the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect
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to such legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(x) such counsel does not know of any legal or governmental
proceedings 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;
(xi) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended; and
(xii) if an opinion is ascribed to such counsel in the
Prospectus under the caption "Taxation" (or other similarly titled
caption), such counsel is of such opinion;
The foregoing opinions may be limited to the General Corporation Law
of the State of Delaware, the laws of the State of Texas, the New Jersey
Business Corporation Act, the laws of the State of New York and applicable
federal law. In rendering the foregoing opinions, counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to the Manager) of other counsel reasonably acceptable
to the Manager as to matters governed by the laws of jurisdictions other than
the United States, the State of Texas, and the General Corporation Law of the
State of Delaware, and as to matters of fact, upon certificates of officers of
the Company and of government officials. Copies of all such opinions and
certificates shall be furnished to counsel to the Manager on the date the
Registration Statement becomes effective and on the Closing Date.
Concurrently with the delivery of its opinion, Xxxxxxxx & Xxxxxx,
P.C., shall advise the Manager in writing that, in the course of its
representation of the Company in connection with the preparation of the
Registration Statement and Prospectus, nothing has come to its attention that
gives it any reason to believe either that any part of the Registration
Statement, when such part became effective, contained 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 or that the
Prospectus and any amendment or supplement thereto, as of its date or as of the
Closing Date, included an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to the financial
statements, schedules and other financial data, included in any of the
documents mentioned in this paragraph.
(d) On the date of the Underwriting Agreement for the Offered
Securities and on the Closing Date for such Offered Securities, Xxxxxx Xxxxxxxx
LLP, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have furnished
to the Underwriters a letter, dated the effective date of the Registration
Statement or the date of the most recent report
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filed with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is later
than such effective date, and a letter dated such Closing Date, respectively,
each in form and substance satisfactory to the Underwriters, to the effect that
(i) they are independent certified public accountants with respect to the
Company within the meaning of the Act and the rules and regulations of the
Commission thereunder; (ii) in their opinion, the financial statements audited
by them included or incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the related published rules
and regulations thereunder; (iii) nothing came to their attention as a result
of performing certain specified procedures that caused them to believe that any
unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements; and (iv) as to such other matters relating to such financial
statements and financial information as you may reasonably request and in form
and substance satisfactory to you;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus (or indicated in the financial
statements included or incorporated by reference therein); and (ii) since the
respective dates as of which information is given in the Prospectus there shall
not have been any change on a consolidated basis in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), in the Manager's judgment, taking into
account the Manager's prior knowledge of the Company and the industry in which
the Company operates, so materially and adversely affects the business,
financial condition or results of operations of the Company and its
subsidiaries (taken as a whole) as to make it impracticable to complete the
public offering or the delivery of the Offered Securities on the terms and in
the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred any of
the following: (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; (ii) a
suspension or limitation in trading in securities generally on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; (iv) a
material adverse change in the condition, financial or otherwise, earnings,
business or prospects of the Company and its subsidiaries considered as a
whole, whether or not arising in the ordinary course of business; (v) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United
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States of a national emergency or war; or (vi) a substantial national or
international calamity or other occurrence of a material adverse change in
general economic, political or financial conditions in the United States, or
internationally having a material impact on such conditions in the United
States, if the effect of any such event specified in clause (iv), (v) or (vi) in
the Manager's judgment makes it impracticable to complete the public offering or
the delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus; and
(g) On the Closing Date, the Company shall have furnished or caused
to be furnished to you a certificate or certificates, dated the Closing Date,
of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the date of
such certificate or certificates, as to the performance in all material
respects by the Company of all of its obligations hereunder to be performed at
or prior to the time such certificate or certificates shall be furnished to
you, as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as you may reasonably request.
5. 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 prepare the Prospectus as amended and supplemented in relation
to the applicable Offered Securities in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus after the date of the Underwriting Agreement relating
to such Offered Securities and prior to the Closing Date for such Offered
Securities which shall be disapproved by the Underwriters for such Offered
Securities promptly after reasonable notice thereof; to advise the Underwriters
promptly of any such amendment or supplement after such Closing Date and
furnish the Underwriters with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Offered Securities, and during
such same period to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Offered Securities, of the suspension of the
qualification of such Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Offered
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
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(b) To furnish the Manager, without charge, two 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, during the period mentioned in paragraph (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;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Manager may from time to time
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of any Offered Securities and if
at such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Underwriters and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance;
(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 and to maintain such qualification for as long as the
Manager shall reasonably request;
(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 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; and
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
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Offered Securities; (iii) the fees and disbursements of the Company's counsel
and accountants and of the Trustee and its counsel; (iv) the qualification of
the Offered Securities under state securities or Blue Sky laws in accordance
with the provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky or Legal Investment Memoranda;
(v) the printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto and
of any preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vi) the printing and delivery to the Underwriters of
copies of any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by
rating agencies for the rating of the Offered Securities; (viii) the filing
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with the
Offered Securities; and (ix) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors and (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, any preliminary prospectus and any other prospectus
relating to the Offered Securities, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse you for any legal or
other expenses reasonably incurred by you in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus, any preliminary prospectus
and any other prospectus relating to the Offered Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you expressly for use in the Prospectus
as amended or supplemented relating to such Offered Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any preliminary
prospectus and any other prospectus relating to the Offered Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus and any other prospectus relating to the
Offered Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use therein;
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and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 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 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 (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and 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. The Company and each of the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation or by
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any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include 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
subsection (d), 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 which such Underwriter have 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the Underwriters'
obligations under this Section 6 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
7. INDEMNITIES, AGREEMENTS, REPRESENTATIONS AND WARRANTIES TO
SURVIVE. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriters, as set forth in this
Agreement, or as set forth by the Company in certificates of officers of the
Company furnished to the Underwriters pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any person
who controls any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment
for the Offered Securities.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' 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 Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' 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 Underwriters' 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 Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of
such amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Underwriters' Securities and the aggregate amount
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of Underwriters' Securities with respect to which such default occurs is more
than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' 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 incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
9. 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.
10. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. 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
___________, 199_
NOBLE AFFILIATES, INC.
000 Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 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
NOBLE AFFILIATES, INC., a Delaware corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate initial offering price
of [Full title of Debt Securities] (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 _______________, 199_ (the "Indenture") between the Company and [NAME OF
TRUSTEE], 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 ____% of the
principal amount of Debt Securities [, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery](1)
Principal Amount of
Name Debt Securities
---- ---------------
[Xxxxxx Xxxxxxx & Co.
Incorporated]
UBS Securities LLC]
[Insert syndicate list]
Total ................
----------------
(1) To be added only if the transaction does not close "flat" (i.e., when the
purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will
be computed on the basis of a 360-day year of twelve 30-day months.
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The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
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 ___________, 199_, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)](2)
Form and Denomination:
[Other Terms:}
All provisions contained in the document entitled NOBLE AFFILIATES,
INC. Underwriting Agreement Standard Provisions (Debt Securities) dated April
__, 1997, 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, and (ii) 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.
---------------
(2) To be added only if the transaction does not close flat.
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[SIGNATURE PAGE WHERE THERE ARE CO-LEAD MANAGERS]
Please confirm the Company's 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]
[UBS SECURITIES LLC]
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: [NAME OF ONE CO-LEAD MANAGER]
By:
------------------------------------
Name:
Title:
Accepted:
NOBLE AFFILIATES, INC.
By:
----------------------------
Name:
Title:
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SIGNATURE PAGE WHERE THERE IS A SOLE MANAGER]
Please confirm the Company's agreement by having an authorized
officer sign a copy of this Agreement in the space set forth below.
Very truly yours,
[NAME OF SOLE MANAGER]
Acting severally on behalf of itself
and the several Underwriters named herein
By:
------------------------------------
Name:
Title:
Accepted:
NOBLE AFFILIATES, INC.
By:
----------------------------
Name:
Title:
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