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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT JANUARY 18, 1994
(Date of earliest event reported)
MITCHELL ENERGY & DEVELOPMENT CORP.
(Exact name of registrant as specified in charter)
COMMISSION FILE NUMBER 1-6959
TEXAS 74-1032912
(State of Incorporation) (I.R.S. Employer Identification No.)
2001 TIMBERLOCH PLACE
THE WOODLANDS, TEXAS 77380
(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (713) 377-5500
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EXHIBIT INDEX APPEARS ON PAGE 3
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ITEM 5 - OTHER EVENTS
On January 18, 1994 Mitchell Energy & Development Corp. (the Company)
agreed to issue $250,000,000 of 6 3/4% Senior Notes Due 2004 pursuant to a shelf
registration statement (No. 33-57332) on Form S-3 covering an aggregate of up
to $400,000,000 of Debt Securities to be sold from time to time. The notes are
being issued pursuant to the terms of a Senior Debt Indenture dated as of
January 1, 1993, as supplemented by a First Supplemental Indenture Dated
Janaury 15, 1994, between the Company and NationsBank of Texas, National
Association, as trustee.
Proceeds from the sale will be used to redeem the Company's
$200,000,000 of 11 1/4% Senior Notes Due 1999 at 103.21% of their principal
amount and to repay floating-rate borrowings under revolving credit agreements
of the Company's primary energy and real estate subsidiaries. An extraordinary
charge of approximately $5,400,000 related to this redemption will be accrued
in Company's fiscal year ending 1994.
ITEM 7(C) - EXHIBITS
The following documents are filed as exhibits to this report in
accordance with Item 601 of Regulation S-K.
1 Terms Agreement dated January 18, 1994, between Mitchell Energy
& Development Corp; CS First Boston Corporation; Goldman, Sachs &
Co.; Chemical Securities Inc.; NatWest Capital Markets Limited
and SBCI Swiss Bank Corporation Investment banking Inc.
4(a) First Supplemental Indenture dated January 15, 1994 between
Mitchell Energy & Development Corp. and NationsBank of Texas,
National Association, as Trustee under the original Indenture.
4(b) Specimen 6 3/4% Senior Note Due 2004 of Mitchell Energy &
Development Corp.
5 Opinion of Vinson and Elkins L.L.P.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
MITCHELL ENERGY & DEVELOPMENT CORP.
Dated: January 25, 1994 /s/Philip S. Smith
___________________________________
Philip S. Smith
Senior Vice President - Administration,
Chief Financial Officer and
Principal Accounting Officer
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Index to Exhibits
1 Terms Agreement dated January 18, 1994, between Mitchell Energy
& Development Corp; CS First Boston Corporation; Goldman, Sachs &
Co.; Chemical Securities Inc.; NatWest Capital Markets Limited
and SBCI Swiss Bank Corporation Investment banking Inc.
4(a) First Supplemental Indenture dated January 15, 1994 between
Mitchell Energy & Development Corp. and NationsBank of Texas,
National Association, as Trustee under the original Indenture.
4(b) Specimen 6 3/4% Senior Note Due 2004 of Mitchell Energy &
Development Corp.
5 Opinion of Vinson and Elkins L.L.P.
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Exhibit 1
Mitchell Energy & Development Corp.
Debt Securities
TERMS AGREEMENT
January 18, 1994
MITCHELL ENERGY & DEVELOPMENT CORP.
2001 Timberloch Place
The Woodlands, Texas 77380
Attention: Philip S. Smith
Dear Sirs:
The undersigned, as representatives of the several Underwriters listed
in Schedule A hereto, offer to purchase, on and subject to the terms and
conditions of the Underwriting Agreement attached hereto as Annex 1
("Underwriting Agreement"), $250,000,000 aggregate principal amount of 6 3/4%
Senior Notes Due 2004 (the "Securities") of Mitchell Energy & Development Corp.
(the "Company"). The Securities to be purchased by the Underwriters, which are
to be issued under a Senior Indenture dated as of January 1, 1993, between the
Company and NationsBank of Texas, National Association, as Trustee, as
supplemented by the First Supplemental Indenture, dated as of January 15, 1994
(the "Supplemental Indenture"), shall have the following terms:
TITLE: 6 3/4% Senior Notes Due 2004.
PRINCIPAL AMOUNT: $250,000,000.
INTEREST: 6 3/4% per annum, from January 25, 1994, payable
semiannually on February 15 and August 15, commencing August 15, 1994, to
holders of record on the preceding February 1 or August 1, as the case may be.
MATURITY: February 15, 2004.
REDEMPTION BY THE COMPANY: None.
REDEMPTION BY THE HOLDERS: As more fully described in the
Supplemental Indenture, upon the occurrence of a Special Redemption Event (as
defined in the Supplemental Indenture), each holder of the Securities then
outstanding will have the right to require the Company to redeem all or any
part of such holder's Securities at a price equal to 100% of the principal
amount thereof plus accrued interest to the date of redemption.
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SINKING FUND: None.
DELAYED DELIVERY CONTRACTS: None.
PURCHASE PRICE: 99.325% of principal amount, plus accrued interest,
if any, from January 25, 1994.
EXPECTED REOFFERING PRICE: 100% of principal amount, subject to
change by the undersigned.
CLOSING: 9:00 A.M. on January 25, 1994, at Fulbright & Jaworski
L.L.P., 1301 McKinney, Houston, Texas, in New York Clearing House (next day)
funds.
NAMES AND ADDRESSES OF REPRESENTATIVES:
CS First Boston Corporation
Goldman, Sachs & Co.
c/o CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
The respective principal amount of the Securities to be purchased by
each of the Underwriters is set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Securities will be made available for checking and packaging at
the office of CS First Boston Corporation, Park Avenue Plaza, New York, New
York at least 24 hours prior to the Closing Date.
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Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
As Representatives of the several
underwriters
By CS First Boston Corporation
By /s/ H. Gregory Moore
________________________
H. Gregory Moore,
Director
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SCHEDULE A
<TABLE>
<CAPTION>
Principal
Underwriter Amount
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<S> <C>
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $113,750,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $113,750,000
Chemical Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 7,500,000
NatWest Capital Markets Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 7,500,000
SBCI Swiss Bank Corporation Investment banking Inc. . . . . . . . . . . . . . . . . . . . . . . . . . $ 7,500,000
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Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $250,000,000
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</TABLE>
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Annex 1
MITCHELL ENERGY & DEVELOPMENT CORP.
DEBT SECURITIES
UNDERWRITING AGREEMENT
1. Introductory. Mitchell Energy & Development Corp., a Texas
corporation ("Company"), proposes to issue and sell from time to time certain
of its debt securities registered under the registration statement referred to
in Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under indentures, dated as of January 1, 1993 (each, an "Indenture" and
collectively, the "Indentures"), between the Company and NationsBank of Texas,
National Association, as Trustee, in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Registered
Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33-57332), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, including all material incorporated by reference
therein, is hereinafter referred to as the "Registration Statement", and the
prospectus included in the Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and the terms
of offering thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933,
as amended ("Act"), including all material incorporated by reference therein,
is hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating
to the Registered Securities, such registration statement conformed in all
material respects to
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the requirements of the Act, the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
each Terms Agreement referred to in Section 3, the Registration Statement and
the Prospectus will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time
and date of delivery and payment (such time and date, or such other time not
later than seven full business days thereafter as the Representatives and the
Company agree as the time for payment and delivery, being herein and in the
Terms Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected in
the prospectus supplement relating to the offering of the Securities. The
obligations of the Underwriters to purchase the Securities will be several and
not joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus. The Securities delivered
to the Underwriters on the Closing Date will be in definitive fully registered
form (unless otherwise provided in the Terms Agreement), in such denominations
and registered in such names as the Underwriters may request upon not less than
48 hours notice to the Company.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the
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accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Securities to be sold pursuant to Delayed
Delivery Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to Fulbright & Jaworski L.L.P.,
counsel for the Underwriters, one signed copy of the registration statement
relating to the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with
each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) of Rule 424(b) not later
than the second business day following the execution and delivery of the Terms
Agreement. The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued. The terms "supplement" and "amendment" as
used in this Agreement shall include, without limitation, all documents filed
by the Company with the Commission subsequent to the date of the Prospectus
included in the Registration Statement which are deemed to be incorporated by
reference in the Prospectus.
(c) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs 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 to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
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Neither the Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the registration
statement relating to the Registered Securities, (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such Terms Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution, provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction.
(g) As long as the Securities are outstanding, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, if any, as soon as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for such year; and the Company will
furnish to the Representatives (i) as soon as available, a copy of each report
(other than on Form 11-K) or definitive proxy statement of the Company filed
with the Commission under the Securities Exchange Act of 1934, as amended
("Exchange Act"), or mailed to shareholders, and (ii) from time to time, such
other information concerning the Company as the Representatives may reasonably
request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the Underwriters for
any expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Securities, for the filing fee, if applicable, of the
National Association of Securities Dealers, Inc. relating to the Registered
Securities and for expenses incurred in distributing the Prospectus, any
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preliminary prospectuses and any preliminary prospectus supplements to the
Underwriters.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending 10 days after the Closing Date, without the prior consent
of the Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities issued or guaranteed by the Company,
having a maturity of more than one year from the date of issue and denominated
in United States dollars or such currency as is specified in the Terms
Agreement.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of the Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Arthur Andersen & Co. confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules
and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and
schedules examined by them and included or incorporated by reference
in the prospectus contained in the registration statement relating to
the Registered Securities, as amended at the date of such letter,
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
Rules and Regulations;
(ii) they have made a review of any unaudited financial
statements included in such prospectus in accordance with standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to such letter;
(iii) on the basis of the review referred to in (ii) above,
a reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited financial statements and selected financial and operating
data, if any, included or incorporated by reference in such prospectus
do not comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published Rules and Regulations or are not in conformity with
generally accepted accounting principles
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applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in such
prospectus; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included or incorporated by reference in such prospectus,
including the ratios of earnings to fixed charges (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation), with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into such prospectus shall be deemed included in such prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including any Representatives, materially impairs
the investment quality of the Securities or the Registered Securities; (ii) any
downgrading in the rating of any debt securities or preferred stock of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or
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emergency if, in the judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Vinson & Elkins L.L.P., special counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Texas, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Indenture under which the Securities have been
issued has been duly authorized, executed and delivered by the Company
and has been duly qualified under the Trust Indenture Act; the
Securities have been duly authorized; the Securities other than any
Contract Securities (assuming they have been signed by the facsimile
signature of the Chairman of the Board of Directors, the President,
any Vice President or the Treasurer of the Company, the facsimile seal
of the Company has been affixed thereto or printed thereon and they
have been duly authenticated by NationsBank of Texas, National
Association, as Trustee, which assumptions such counsel need not
verify by an inspection of the Securities) have been duly issued and
delivered; such Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in such
Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
enforceable against it in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Securities
other than any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold, will conform, in
all material respects to the description thereof contained in the
Prospectus;
(iii) With respect to any securities that are convertible
into Class B Common Stock, par value $0.10 per share, of the Company
("Common Stock"), such Securities other than any such Contract
Securities are, and any such Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
applicable Indenture and sold pursuant to Delayed Delivery Contracts,
will be, convertible into Common Stock in accordance with the terms of
the applicable Indenture; the shares of such Common Stock initially
issuable upon conversion of the Securities have been duly authorized
and reserved for issuance upon such conversion and, when issued upon
such conversion, will be validly issued, fully paid
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and nonassessable; the Common Stock conforms in all material respects
to the description thereof contained in the Prospectus; and the
shareholders of the Company have no preemptive rights with respect to
the Securities or the Common Stock;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
for the consummation by the Company of the transactions contemplated
by the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities laws;
(v) The execution, delivery and performance by the Company of
the Indenture under which the Securities have been issued, the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties, or any loan agreement, note, indenture, mortgage, security
agreement or similar instrument or agreement referred to in the
Prospectus or required to be filed as an exhibit to the Registration
Statement, including any such instruments or agreements required to be
filed as an exhibit to any document incorporated by reference therein,
to which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company, and the Company has full corporate
power and authority to authorize, issue and sell the Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(vi) The Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified
therein, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act, and the Registration
Statement and the Prospectus (other than the financial statements or
other financial, geological or statistical data contained therein and
the applicable Statement of Eligibility and Qualification of the
Trustee on Form T-1), and each amendment or supplement thereto, as of
their respective effective or issue dates,
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complied as to form in all material respects with the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; and
the descriptions in the Registration Statement and Prospectus of legal
proceedings, if any, and contracts and other documents are accurate
and fairly present the information required to be shown;
(vii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(viii) Neither the Company nor any subsidiary is a "holding
company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of officers of
the Company and public officials. In addition, such counsel shall state it has
participated in conferences with the Company and the Representatives at which
the contents of the Registration Statement were discussed and on such basis it
has no reason to believe that either the Registration Statement or the
Prospectus, or any amendment or supplement thereto, as of their respective
effective or issue dates, and, in the case of the Prospectus, as of the Closing
Date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. Such opinion may state that such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus except as
otherwise expressly provided in such opinion and does not express any opinion
or belief as to the financial statements or other financial, geological or
statistical data contained in the Registration Statement and the Prospectus or
as to the applicable Statement of Eligibility and qualification of the Trustee
on Form T-1.
(e) You shall have received an opinion dated the Closing Date, of
Thomas P. Battle, General Counsel of the Company, to the effect that:
(i) Each of the Company and its subsidiaries has been
duly incorporated and is an existing corporation in good standing
under the laws of its state of incorporation, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and each of the Company and its subsidiaries is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification; and all of the outstanding capital stock
of each of the subsidiaries has been duly authorized and validly
issued and is fully paid and nonassessable and is
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<PAGE> 14
owned beneficially by the Company, free and clear of any claim, lien,
encumbrance or security interest, except as described in the
Prospectus;
(ii) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable;
(iii) The execution, delivery and performance of the
Indenture under which the Securities have been issued, the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts by the Company and the issuance and sale of the
Securities and compliance with the terms and provisions thereof by the
Company will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any agreement or
instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the
properties of the Company or any subsidiary is subject, or the charter
or by-laws of the Company or any subsidiary; and
(iv) Such counsel does not know of any legal or
governmental proceedings required to be described in the Registration
Statement or Prospectus which are not described as required or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
The opinion referred to in clause (ii) above need be given only if the
Securities are convertible into Common Stock. In rendering such opinion, such
counsel shall also state that he has participated in conferences at which the
contents of the Registration Statement were discussed and on such basis he has
no reason to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto, as of their respective effective or
issue dates, and, in the case of the Prospectus, as of the Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. Such opinion may state that such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus except as
otherwise expressly provided in such opinion and does not express any opinion
or belief as to the financial statements or other financial, geological or
statistical data contained in the Registration Statement and the Prospectus or
as to the applicable Statement of Eligibility and Qualification of the Trustee
on Form T-1.
(f) The Representatives shall have received from Fulbright &
Jaworski L.L.P., counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Company shall have furnished to
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<PAGE> 15
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial position
or results of operation of the Company and its subsidiaries except as set forth
in or contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen & Co. which reconfirms the matters set forth
in their letter delivered pursuant to subsection (a) of this Section and states
in effect that:
(i) in their opinion, any financial statements or
schedules examined by them and included or incorporated by reference
in the Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published Rules and Regulations;
(ii) they have made a review of any unaudited financial
statements included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section in accordance
with standards established by the American Institute of Certified
Public Accountants, as indicated in their report or reports attached
to such letter;
(iii) on the basis of the review referred to in (ii) above,
a reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any,
included or incorporated by reference in the Prospectus and
not covered by their letter delivered pursuant to subsection
(a) of this Section do not comply in form in all material
respects with the applicable accounting requirements of the
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<PAGE> 16
Act and the Exchange Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Prospectus;
(B) the unaudited capsule information, if any,
included in the Prospectus does not agree with the amounts set
forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than five days prior to the Closing Date, there
was any change in the capital stock (except for issuances in
connection with employee stock option plans) or any increase
in short-term indebtedness or long-term debt (except for the
accretion of long- term debt and amortization of debt discount
and offering costs) of the Company and its subsidiaries
consolidated or, at the date of the latest available balance
sheet read by such accountants or at such subsequent specified
date, there was any decrease in consolidated net current
assets or net assets, as compared with amounts shown on the
latest balance sheet included or incorporated by reference in
the Prospectus; or
(D) for the period from the date of the latest
consolidated statement of earnings included or incorporated by
reference in the Prospectus to the closing date of the latest
available consolidated statement of earnings read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year or with the period
of corresponding length ended the date of the latest
consolidated statement of earnings included or incorporated by
reference in the Prospectus, in consolidated revenues,
earnings before income taxes and extraordinary items, the
total or per share amounts of earnings or the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
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<PAGE> 17
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included or incorporated by reference in the Prospectus
and not covered by their letter delivered pursuant to subsection (a)
of this Section (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
the purposes of this subsection.
(i) The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, 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 each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability (i) arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein or (ii) results from the
fact that a copy of the Prospectus was not sent or given to the person
asserting any such loss, claim, damage or liability at or prior to the written
confirmation of the sale of Securities to such person.
(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
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<PAGE> 18
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or arise
out of or are based upon the omission or the 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 reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, 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 will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (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 from the
offering of the 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 the Underwriters on
the other in connection with the statements or omissions which 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
-14-
<PAGE> 19
commissions received by the Underwriters. The relative fault 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 the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of 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 action or
claim which is the subject of this subsection (d). 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 Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 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 or the Exchange Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the Act or
the Exchange Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments under this
Agreement and the Terms Agreement, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Securities with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any
-15-
<PAGE> 20
non-defaulting Underwriter or the Company, except as provided in Section 8 of
this Agreement. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 7 or the occurrence of any event specified in clause (iii), (iv) or
(v) of Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or faxed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or faxed and confirmed to it at 2001 Timberloch Place, The Woodlands,
Texas 77380, Attention: Chief Financial Officer (telecopy number (713)
377-6192; confirm (713) 377-5861).
10. Successors. This Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
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<PAGE> 21
12. Consent to Representation. The Company and the Underwriters
acknowledge that Vinson & Elkins L.L.P., which will be acting as special
counsel to the Company in connection with the offer and sale of the Securities,
also acts as counsel from time to time to one or more of the Underwriters in
connection with unrelated matters. The Company and the Underwriters consent to
Vinson & Elkins L.L.P. so acting as special counsel to the Company. The
Company and the Underwriters also acknowledge that Fulbright & Jaworski L.L.P.,
which is acting as counsel to the Underwriters in connection with the offer and
sale of the Securities, also acts as counsel from time to time to the Company
and certain of its affiliates in connection with unrelated matters. The
Company and the Underwriters consent to Fulbright & Jaworski L.L.P. so acting
as counsel to the Underwriters.
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<PAGE> 22
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on __________________, 19__*.)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
MITCHELL ENERGY & DEVELOPMENT CORP.
c/o [Insert name of lead Representative or Underwriter]
[Insert Address]
Gentlemen:
The undersigned hereby agrees to purchase from Mitchell Energy &
Development Corp., a Texas corporation ("Company"), and the Company agrees to
sell to the undersigned, [if one delayed closing, insert - as of the date
hereof, for delivery on __________, _____ ("Delivery Date"),]
$________________
principal amount of the Company's [insert title of securities] ("Securities"),
offered by the Company's Prospectus dated February 19, 1993 and a Prospectus
Supplement dated __________, _____, relating thereto, receipt of copies of
which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
DELIVERY DATE PRINCIPAL AMOUNT
_____________ ________________
_____________ ________________
_____________ ________________
_________________________
*Insert date which is third full business day prior to Closing Date under
the Terms Agreement
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<PAGE> 23
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on - the - each - Delivery Date shall be made to the Company or
its order by certified or official bank check in New York Clearing House (next
day) funds at the office of ___________________________ at ___.M. on - the -
such - Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned - for delivery on such Delivery Date - in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to - the - such - Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on -the - each - Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at - the - such - Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by - a copy - copies - of the opinion[s] of counsel
for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
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<PAGE> 24
___________________________
(Name of Purchaser)
By ______________________
______________________
(Title of Signatory)
______________________
(Address of Purchaser)
Accepted, as of the above date.
MITCHELL ENERGY & DEVELOPMENT CORP.
By: _____________________
[Insert Title]
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<PAGE> 1
Exhibit 4(a)
================================================================================
MITCHELL ENERGY & DEVELOPMENT CORP.
AND
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION
____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 15, 1994
_____________________
Supplementing the Senior Indenture
dated as of
January 1, 1993
================================================================================
<PAGE> 2
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of January 15, 1994
between Mitchell Energy & Development Corp., a Texas corporation (the
"Issuer"), and NationsBank of Texas, National Association, a national banking
association (the "Trustee"), as trustee under the Original Indenture referred
to below,
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), which are to be issued in one or more series; and the Issuer has
heretofore made, executed and delivered to the Trustee its Senior Indenture
dated as of January 1, 1993 (such Senior Indenture being sometimes referred to
herein as the "Original Indenture") pursuant to which the Securities are
issuable;
WHEREAS, no Securities have been issued under the Original Indenture;
WHEREAS, Sections 2.1 and 2.3 of the Original Indenture provide that
the form and terms of any series of Securities may be established in an
indenture supplemental thereto, and the Issuer desires to establish in this
First Supplemental Indenture both the form and terms of a series of Securities
designated as its 6 3/4% Senior Notes Due 2004 (the "2004 Notes");
WHEREAS, all things necessary to authorize the execution and delivery
of this First Supplemental Indenture, to establish the form and terms of the
2004 Notes as provided for in this First Supplemental Indenture, and to make
the Original Indenture, as supplemented by this First Supplemental Indenture, a
valid agreement of the Issuer, in accordance with its terms, have been done;
NOW, THEREFORE, in consideration of the premises and the purchase of
the 2004 Notes by the Holders, the Issuer and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective Holders from
time to time of the 2004 Notes as follows:
ARTICLE 1
SUPPLEMENT TO THE ORIGINAL INDENTURE
SECTION 1.1 SUPPLEMENT TO ARTICLE ONE OF THE ORIGINAL INDENTURE.
Section 1.1 of the Original Indenture is supplemented by inserting therein, in
alphabetical order, the following definitional paragraphs:
"Adjusted Consolidated Stockholders' Equity" means the sum of (a)
Consolidated Stockholders' Equity and (b) the aggregate book value of
all Special Dividends that may have been declared or paid by the
Issuer other
<PAGE> 3
than the Special Dividend with respect to which such computation is
being made.
"Consolidated Stockholders' Equity" means the sum of the amounts set
forth on the consolidated balance sheet of the Issuer and its
Subsidiaries, prepared in accordance with generally accepted
accounting principles and as of any date selected by the Issuer not
more than 90 days prior to the taking of any action for the purpose of
which the determination is being made, as (a) the par or stated value
of all outstanding capital stock of the Issuer, (b) paid-in capital or
capital surplus relating to such capital stock and (c) retained
earnings or earned surplus, less treasury stock.
"Energy Business" means the business of the exploration for, and
development, acquisition, production, processing, marketing, refining,
storage and transportation of, hydrocarbons and other related energy
and natural resource businesses.
"Energy Subsidiary" means any Subsidiary primarily engaged in the
Energy Business at the time of determination, whether directly or
through any subsidiary thereof.
"Special Dividend" means any declaration or payment by the Issuer on
or after January 15, 1994 of any dividend or other distribution on any
class of its capital stock or to the holders of any class of its
capital stock payable in shares of the capital stock of any Energy
Subsidiary (or rights or warrants to acquire such shares).
"Special Redemption Event" means any declaration or payment by the
Issuer of any Special Dividend, if (a) at the time of such action an
Event of Default shall have occurred and be continuing, or (b) at the
time the Issuer becomes committed to take such action and upon giving
effect to such Special Dividend and all other Special Dividends
declared or paid prior thereto, Adjusted Consolidated Stockholders'
Equity would decrease by more than 33 1/3 percent.
"2004 Notes" means the series of Securities denominated as the 6 3/4%
Senior Notes Due 2004.
ARTICLE 2
THE 2004 NOTES
SECTION 2.1 FORM AND TERMS. The 2004 Notes shall be in the form of
Exhibit A hereto. The terms of the 2004 Notes set forth in Exhibit A shall be
part of the terms and provisions of this First Supplemental Indenture as fully
as if set forth herein.
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<PAGE> 4
SECTION 2.2 DEFEASANCE. The provisions of Section 10.1(C) of the
Original Indenture shall be applicable to the 2004 Notes.
SECTION 2.3 REDEMPTION.
(a) Upon the occurrence of a Special Redemption Event, each Holder
of the 2004 Notes then Outstanding may elect to require the Issuer to redeem
all or any part of such Holder's 2004 Notes, within the time period specified
in and subject to the procedures set forth in subsection (c) of this Section
2.3, at a redemption price (the "Special Redemption Price") equal to 100% of
the principal amount thereof, together with accrued interest to the date fixed
for redemption (the "Special Redemption Date"), but interest installments whose
stated maturity is on or prior to such Special Redemption Date will be payable
to the Holders of record on the relevant record dates.
(b) Redemption of 2004 Notes at the election of the Holders, as
permitted by the provisions of this Section 2.3, shall be made in accordance
with such provisions and, except to the extent inconsistent with the provisions
of this Section 2.3, Article Twelve of the Original Indenture.
(c) Not more than 15 days after the occurrence of a Special
Redemption Event, the Issuer (or, at the Issuer's request, the Trustee) shall
give notice thereof to the Holders of the 2004 Notes, at their respective
addresses appearing in the registry books, such notice to be given in the name
of and at the expense of the Issuer by first-class mail, postage prepaid. All
such notices shall set forth:
(1) a summary description of the Special Redemption Event
that has occurred,
(2) the date such Special Redemption Event occurred,
(3) that each Holder of 2004 Notes then Outstanding may
require the Issuer to redeem all or any part of his 2004 Notes by
surrendering them no later than the tenth day prior to the Special
Redemption Date,
(4) the Special Redemption Date, which shall be the first
Business Day next succeeding 60 days after the giving of such notice,
(5) the Special Redemption Price,
(6) that on the Special Redemption Date, the Special
Redemption Price will become due and payable upon each such 2004 Note
required to be redeemed and that interest thereon will cease to accrue
on and after said date,
-3-
<PAGE> 5
(7) that the form of written notice instructing the
Issuer to redeem a 2004 Note is part of the 2004 Note, and
(8) the place or places where such 2004 Notes are to be
surrendered for payment of the Special Redemption Price.
For a 2004 Note to be redeemed at the election of the Holder thereof,
the Issuer must receive such 2004 Note at the place or places where the 2004
Notes are to be surrendered for payment of the Special Redemption Price, on or
before the tenth day prior to the Special Redemption Date, accompanied by
written notice to the Issuer (which shall be substantially in the form of the
Notice of Redemption at Holder's Option specified in the form of the 2004 Note
set forth in Exhibit A hereto) instructing the Issuer to redeem such 2004 Note.
Such notice duly received shall be irrevocable. The Holder of a 2004 Note may
elect redemption by the Issuer of his 2004 Note in the principal amount of
$1,000 or an integral multiple thereof.
If the Issuer shall fail to give any notice of the occurrence of a
Special Redemption Event as required by this subsection (c), then the Holders
of the 2004 Notes then Outstanding shall have the continuing right to require
the Issuer to redeem their 2004 Notes at a Special Redemption Price equal to
100% of the principal amount thereof, together with accrued interest to the
date of such redemption, until the Issuer shall have given such notice as
aforesaid, whereupon such right shall be subject to the limitations and
procedures set forth above in this subsection (c).
(d) On or prior to any Special Redemption Date, the Issuer shall
deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 3.5 of the Original Indenture) an amount of money sufficient to pay the
Special Redemption Price of, and (except if the Special Redemption Date shall
be an interest payment date) accrued interest on, all the 2004 Notes which are
to be redeemed on that date.
SECTION 2.4 OFFICES FOR NOTICES AND PAYMENTS, ETC. The Place of
Payment of the 2004 Notes shall be Atlanta, Georgia, and the Issuer hereby
designates the agency of the Trustee, NationsBank of Georgia, N.A., 715
Peachtree Street, 7th floor, Atlanta, Georgia 30308-1297, as the agency where
the 2004 Notes may be presented for payment, for registration of transfer and
for exchange and where notices and demands to or upon the Issuer in respect of
the 2004 Notes may be served.
SECTION 2.5 NO AUTHENTICATING AGENT. The Issuer and the Trustee
agree that no Person shall act as Authenticating Agent of the Trustee with
respect to the 2004 Notes without the express approval of the Issuer.
SECTION 2.6 EXCLUSIVITY. The provisions of this Article 2 are
intended to relate exclusively to the 2004 Notes.
-4-
<PAGE> 6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
SECTION 3.1 AUTHORITY OF THE ISSUER. The Issuer is duly authorized
by a resolution of the Board of Directors to execute and deliver this First
Supplemental Indenture, and all corporate action on its part required for the
execution and delivery of this First Supplemental Indenture has been duly and
effectively taken.
SECTION 3.2 TRUTH OF RECITALS AND STATEMENTS. The Issuer warrants
that the recitals of fact and statements contained in this First Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished hereunder will be
true and correct.
ARTICLE 4
CONCERNING THE TRUSTEE
SECTION 4.1 ACCEPTANCE OF TRUSTS. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and
conditions set forth in the Original Indenture and in this First Supplemental
Indenture, to all of which the Issuer and the respective Holders of the 2004
Notes at any time hereafter outstanding agree by their acceptance thereof.
SECTION 4.2 RESPONSIBILITY OF TRUSTEE FOR RECITALS, ETC. The
recitals and statements contained in this First Supplemental Indenture (other
than in Section 2.5) shall be taken as the recitals and statements of the
Issuer, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency
of this First Supplemental Indenture, except that the Trustee is duly
authorized to execute and deliver this First Supplemental Indenture.
ARTICLE 5
MISCELLANEOUS PROVISIONS
SECTION 5.1 RELATION TO THE INDENTURE. The provisions of this First
Supplemental Indenture shall become effective immediately upon the execution
and delivery hereof. This First Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and
with the same effect as if all such terms and provisions had been set forth in
the Original Indenture. The Original Indenture is hereby ratified and confirmed
and shall remain and continue in full force and effect in accordance with the
terms and provisions thereof, as supplemented by this First Supplemental
Indenture, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed together as one instrument.
-5-
<PAGE> 7
SECTION 5.2 MEANING OF TERMS. Any capitalized term used in this
First Supplemental Indenture and not defined herein that is defined in the
Original Indenture shall have the meaning specified in the Original Indenture,
unless the context shall otherwise require.
SECTION 5.3 COUNTERPARTS OF FIRST SUPPLEMENTAL INDENTURE. This First
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
SECTION 5.4 GOVERNING LAW. This First Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, Mitchell Energy & Development Corp. and
NationsBank of Texas, National Association have caused this First Supplemental
Indenture to be duly executed, all as of the date first above written.
MITCHELL ENERGY & DEVELOPMENT CORP.
BY:_____________________________________
W. BROOKE HAMILTON, JR.
VICE PRESIDENT - FINANCE
& TREASURER
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION, AS TRUSTEE
BY:_____________________________________
SHELBY A. BEER
VICE PRESIDENT
-6-
<PAGE> 1
Exhibit 4(b)
[LOGO]
No. R- $_____________
MITCHELL ENERGY & DEVELOPMENT CORP.
6 3/4% SENIOR NOTE DUE 2004
CUSIP 606592 AF0
Mitchell Energy & Development Corp., a corporation duly organized and existing
under the laws of Texas (herein called the "Company", which term includes any
successor corporation under the indenture hereinafter referred to), FOR VALUE
RECEIVED, HEREBY PROMISES TO PAY TO
, or registered assigns the principal sum of _________________________ Dollars
on February 15, 2004, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semi-annually on February 15 and August 15
of each year, commencing August 15, 1994, on said principal sum, in like coin
or currency, at the rate per annum specified in the title of this Security, to
the registered holder hereof as of the close of business on the first day of
the month in which an interest payment is due, except as otherwise provided in
the indenture referred to on the reverse hereof, all at the office or agency of
the Company in the City of Atlanta, State of Georgia, from the February 15 or
August 15, as the case may be, next preceding the date of this Security to
which interest has been paid (unless the date hereof is a February 15 or August
15 to which interest has been paid in which case from the date hereof or unless
the date hereof is prior to the payment of any interest on the Securities, in
which case from January 25, 1994 or unless the date hereof is between the first
day of February or August, as the case may be, and the next following February
15 or August 15, in which case from such February 15 or August 15, except that,
if the Company shall default in payment of the interest due on such February 15
or August 15, then from the next preceding February 15 or August 15 to which
interest has been paid or, if no interest has been paid on the Securities, from
January 25, 1994) until payment of said principal sum has been made or duly
provided for; provided, however, that payment of interest may be made at the
option of the Company by check mailed on or before the payment date to the
address of the person entitled thereto as such address shall appear in the
Security register.
This Security shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee or
an Authenticating Agent under the Indenture referred to on the reverse hereof.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE
REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[CORPORATE SEAL]
Dated: ______________________________
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Securities of
the series designated herein referred
to in the within-mentioned Indenture.
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By __________________________________
Authorized Signatory
MITCHELL ENERGY & DEVELOPMENT CORP.
Attest: /s/ Thomas P. Battle By: /s/ George P. Mitchell
Secretary Chairman of the Board
<PAGE> 2
MITCHELL ENERGY & DEVELOPMENT CORP.
6 3/4% SENIOR NOTE DUE 2004
1. DESIGNATION
This Security is one of a duly authorized series of Securities of the Company,
designated as its 6 3/4% Senior Notes Due 2004 (herein called the "Securities"),
limited to the aggregate principal amount of $250,000,000, all issued or to be
issued under and pursuant to a senior indenture dated as of January 1, 1993
(herein called the "Indenture"), duly executed and delivered by the Company and
NationsBank of Texas, National Association, as trustee, to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitation of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.
Capitalized terms used but not defined herein are defined in the Indenture and
are used herein with the same meanings as ascribed to them therein.
2. PAYING AGENT AND REGISTRAR
Initially, the Trustee (through its agent, NationsBank of Georgia, N.A., 715
Peachtree Street, 7th Floor, Atlanta, Georgia 30308-1297) will act as Paying
Agent, Registrar and as the agent where notices and demands to or upon the
Company in respect of the Securities may be served. The Company may appoint
and change any Paying Agent, Registrar or agent for notices without notice,
other than notice to the Trustee. The Company or any of its Subsidiaries or
any of their Affiliates may act as Paying Agent, Registrar or agent for
notices.
3. DENOMINATIONS; TRANSFERS; EXCHANGE
The Securities are in registered form, without coupons, in denominations of
$1,000 in principal amount and integral multiples of $1,000. Upon due
presentation for registration of transfer of this Security at the agency of the
Trustee in the City of Atlanta, State of Georgia or any other such designated
office or agency of the Company, a new Security or Securities of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations imposed by the
Indenture, without charges except for any tax or other governmental charge
imposed in connection therewith, and the Security may in a like manner be
exchanged for one or more new Securities of other authorized denominations but
of the same aggregate principal amount.
4. PERSONS DEEMED OWNERS
The Company, the Trustee, any Paying Agent and any Registrar may deem and treat
the registered Holder hereof as the absolute owner of this Security (whether or
not this Security shall be overdue and notwithstanding any notation of
ownership or other writing herein made by anyone other than the Company, the
Trustee or any Registrar) for purposes of receiving payment hereof, or on
account hereof, and for all other purposes, and neither the Company, the
Trustee, any Paying Agent nor any Registrar shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums so paid, satisfy and discharge the
liability for moneys payable on this Security.
5. DEFAULTS; AMENDMENT; WAIVER
In case an Event of Default, as defined in the Indenture, shall have occurred
and be continuing, the principal hereof and the interest accrued thereon may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of each series of Securities then Outstanding under
the Indenture and affected thereby, evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall
(i) extend the final maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
change the coin or currency in which payments are to be made, impair or affect
the right of any Holder to institute suit for enforcement of any payment
thereof or (ii) reduce the aforesaid percentage of any series of such
Securities, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security of
any series so affected. It is also provided in the Indenture that the Holders
of not less than a majority in aggregate principal amount of the Securities of
any series then Outstanding may on behalf of the Holders of all of the
Securities of such series waive any past default under the Indenture and its
consequences except a default in the payment of the principal of or interest on
any of the Securities of such series. Any such consent or waiver by the Holder
of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Security and any Securities which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the place, at the respective times, and at the rate and in the coin
or currency herein provided.
6. REDEMPTION
The Securities are subject to redemption upon the occurrence of a Special
Redemption Event, at the election of the Holders, at a redemption price equal
to 100% of the principal amount thereof, together with accrued interest to the
date fixed for redemption (the "Special Redemption Date"), but interest
installments whose stated maturity is on or prior to such Special Redemption
Date will be payable to the Holders of such Securities of record on the
relevant record dates referred to on the face hereof, all as provided in the
Indenture. For this Security to be redeemed at the election of the Holder
hereof upon the occurrence of a Special Redemption Event, the Company must
receive this Security at the place or places and on or before the date
specified in a notice of such occurrence to be given to the Holder hereof as
provided in the Indenture, accompanied by written notice to the Company (which
shall be substantially in the form of the Notice of Redemption at Holder's
Option hereon) instructing the Company to redeem this Security. Such notice
duly received shall be irrevocable.
7. GOVERNING LAW
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF the STATE OF TEXAS.
- -------------------------------------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _______________ Custodian _______________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ______________________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
-----------------
For Value Received, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert social Security or other
identifying number of assignee
______________________________________
_______________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
_______________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________________________________________ attorney
to transfer said Security on the books of the Company,
with full power of substitution in the premises.
Dated: ____________________ ________________________________________
Notice: The signature to this assignment
must correspond with the name as
written upon the face of the
within instrument in every
particular, without alteration
or enlargement or any change
whatever.
- ------------------------------------------------------------------------------
NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: MITCHELL ENERGY & DEVELOPMENT CORP.
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security, or portion hereof in the principal amount
below designated, in accordance with the terms of this Security, and directs
that any new Security representing any principal amount hereof which is not to
be redeemed in accordance with these instructions be issued and delivered to
the registered Holder hereof unless a different name has been indicated below.
Dated: ________________________
Fill in for registration of new Security __________________________________
if to be issued otherwise than to the Signature
registered Holder.
_______________________________________
Name Signature Guaranteed:
_______________________________________
Address
_______________________________________
(Please print name and address,
including zip code number)
Note: Exercise of the option to Principal amount to be redeemed
elect redemption is irrevocable. (in an integral multiple of
$1,000, if less than all):
$_________________________
<PAGE> 1
Exhibit 5
(713) 758-2148
January 25, 1994
Mitchell Energy & Development Corp.
2001 Timberloch Place
The Woodlands, Texas 77380
Gentlemen:
We have acted as counsel for Mitchell Energy & Development Corp., a
Texas corporation (the "Company"), in connection with the proposed issuance and
sale by the Company of $250,000,000 principal amount of 6 3/4% Senior Notes Due
2004 (the "Notes") pursuant to a Registration Statement on Form S-3, as amended
(File No. 33-57332) (the "Registration Statement"), filed by the Company with
the Securities and Exchange Commission on January 22, 1993, with respect to
$400,000,000 in aggregate principal amount of the Company's senior debt
securities or subordinated debt securities or both. The Notes will be issued
pursuant to a Senior Indenture dated as of January 1, 1993, as supplemented by
a First Supplemental Indenture dated January 15, 1994 (the "Senior Indenture"),
between the Company and NationsBank of Texas, National Association, as trustee.
Before rendering our opinions hereinafter set forth, we examined such
certificates, instruments and documents, and we reviewed such questions of law,
as we considered appropriate.
Based upon the foregoing examination and review, we are of the opinion
that, assuming the Notes shall have been duly executed and authenticated in
accordance with the Senior Indenture and issued and sold as contemplated in the
supplement dated January 18, 1994 to the basic prospectus dated February 19,
1993 (the "Prospectus") constituting a part of the Registration Statement, the
Notes will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits of the
Senior Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, or other laws relating to or affecting creditors'
rights generally and by general equitable principles.
This opinion is limited to the laws of the State of Texas and the
federal laws of the United States of America.
We hereby consent to the statements made with respect to us under the
captions "Legal Matters" and "Provisions Applicable Solely to Subordinated Debt
- - Conversion" in the
<PAGE> 2
Page 2
Prospectus and to the filing of this opinion as an exhibit to the Registration
Statement. By giving such consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations of the Commission issued thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
