<PAGE> 1
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 (Date of earliest event reported): January 12, 1994
MAXUS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
<TABLE>
<S> <C>
1-8567-2 75-1891531
(Commission File Number) (I.R.S. Employer
Identification No.)
</TABLE>
717 North Harwood Street, Dallas, Texas 75201-6594
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code: (214) 953-2000
<PAGE> 2
ITEM 5. OTHER INFORMATION
The Registrant has entered into Tri Party Agreements appointing
successor trustees under three Indentures under which Mellon Bank, N.A. was
the original trustee. Under the first of these, dated January 24, 1994 and
relating to the Registrant's 8 1/2% Sinking Fund Debentures due April 1, 2008,
Chemical Bank is the successor trustee. Under the other two, dated January 12,
1994, NationsBank of Texas, N.A. is the successor trustee. One of the latter
two relates to Registrant's 11 1/2% Sinking Fund Debentures due November 15,
2015 and the other relates to Registrant's 11 1/4% Sinking Fund Debentures due
May 1, 2013.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
Inapplicable.
(b) Exhibits
<TABLE>
<S> <C>
4.1 - Tri Party Agreement dated January 12, 1994 relating to the
Registrant's 11 1/4% Sinking Fund Debentures due May 1, 2013.
4.2 - Tri Party Agreement dated January 12, 1994 relating to the
Registrant's 11 1/2% Sinking Fund Debentures due November 15,
2015.
4.3 - Tri Party Agreement dated January 24, 1994 relating to the
Registrant's 8 1/2% Sinking Fund Debentures due April 1, 2008.
</TABLE>
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<PAGE> 3
SIGNATURE
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.
MAXUS ENERGY CORPORATION
By: G. R. BROWN
G. R. Brown
Vice President and Controller
Dated: February 14, 1994
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<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
4.1 Tri Party Agreement dated January 12, 1994 relating to the
Registrant's 11 1/4% Sinking Fund Debentures due May 1, 2013.
4.2 Tri Party Agreement dated January 12, 1994 relating to the
Registrant's 11 1/2% Sinking Fund Debentures due November 15,
2015.
4.3 Tri Party Agreement dated January 24, 1994 relating to the
Registrant's 8 1/2% Sinking Fund Debentures due April 1, 2008.
</TABLE>
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<PAGE> 1
EX 4.1
TRI PARTY AGREEMENT
This TRI PARTY AGREEMENT (this "Instrument"), dated as of January 12,
1994 (the "Execution Date"), by and among MAXUS ENERGY CORPORATION, a Delaware
corporation (the "Issuer"), BANKAMERICA NATIONAL TRUST COMPANY, a National
Banking Association (as successor to Security Pacific National Trust Company
(New York), the "Resigning Trustee") and NATIONSBANK OF TEXAS, N.A., a national
banking association organized under the laws of the United States of America
(the "Successor Trustee").
WITNESSETH:
WHEREAS, Diamond Shamrock Corporation ("DSC") and Mellon Bank, N.A.
entered into an indenture, dated as of May 1, 1983 (as supplemented, the
"Indenture"), providing for the issuance by DSC of $150,000,000 aggregate
principal amount of 11 1/4% Sinking Fund Debentures due May 1, 2013 (the
"Debentures"), of which $16,875,000 is presently outstanding and $18,591,000
has been purchased by the Issuer and is held by the Trustee; and
WHEREAS, the Issuer has succeeded to the interest of DSC under the
Indenture and assumed DSC's obligations under the Securities; and
WHEREAS, Security Pacific National Trust Company (New York) ("Security
Pacific") became successor trustee to Mellon Bank, N.A. by Agreement of
Resignation/Appointment and Acceptance entered as of February 27, 1991, and
Resigning Trustee became the successor in interest to Security Pacific; and
WHEREAS, the Resigning Trustee has been acting as trustee, paying
agent, and registrar under the Indenture; and
<PAGE> 2
WHEREAS, Section 7.08 of the Indenture provides that the trustee may
resign and be discharged from the trust created by the Indenture by giving
written notice thereof to the Issuer; and
WHEREAS, the Resigning Trustee hereby gives notice to the Issuer to
become effective upon the acceptance of appointment by a successor trustee; and
WHEREAS, Section 7.08 of the Indenture further provides that in case
the trustee shall resign, the Issuer shall appoint a successor trustee.
Section 7.10 of the Indenture further provides that the successor trustee shall
meet the requirements provided in Section 10.10 of the Indenture; and
WHEREAS, Section 7.08 of the Indenture provides that any successor
trustee appointed under the Indenture shall execute, acknowledge and deliver to
the Issuer and to the Resigning Trustee an instrument accepting such
appointment and thereupon the resignation of the Resigning Trustee shall become
effective and the Successor Trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, trusts,
duties and obligations of the Resigning Trustee; and
NOW, THEREFORE, pursuant to Sections 7.08 and 7.10 of the Indenture
and in consideration of the covenants herein contained, it is agreed as follows
(words and phrases not otherwise defined in this Instrument having the
definitions given thereto in the Indenture):
RESIGNING TRUSTEE
1. Pursuant to the terms of the Indenture, the Resigning Trustee
hereby notifies the Issuer that the Resigning Trustee is resigning as trustee
under the Indenture effective as of that date which is fourteen (14) days after
the Execution Date or, if such date is not a Business Day, then the next
succeeding Business Day (the "Effective Date").
2. Effective as of the Effective Date, the Resigning Trustee
hereby resigns as the agent of the Issuer (the "Agent") under the Indenture,
including, without limitation, as registrar, paying agent and authenticating
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<PAGE> 3
agent, where the Debentures may be presented for payment, where legal
processes, notices and demands to or upon the Issuer with respect to the
Indenture or the Debentures may be served, given or made, where the Issuer will
keep books for the registration of Debentures and the transfer and exchange of
Debentures and where Debentures may be surrendered for transfer or exchange.
3. Effective as of the Effective Date, the Resigning Trustee
hereby assigns, transfers, delivers and confirms to the Successor Trustee all
of its right, title and interest in and to the trust under the Indenture and
all of its rights, powers, titles, interests, capacities, privileges, duties
and obligations as trustee under the Indenture and agrees to pay over to the
Successor Trustee all property and moneys held by it under the Indenture.
4. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the Successor
Trustee or the Issuer may reasonably request so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, titles,
interests, capacities, privileges, duties and obligations hereby assigned,
transferred, delivered and confirmed to the Successor Trustee; provided,
however, nothing contained in this Agreement shall be deemed to waive, release,
modify, amend or otherwise impair any rights, remedies, claims or indemnities
the Resigning Trustee may have as a resigning trustee under the Indenture, at
law or otherwise, including, without limitation the rights specified in Section
7.07 of the Indenture.
5. Promptly after the Execution Date, the Resigning Trustee shall
provide the governing documents set forth in Exhibit A to the Successor
Trustee.
ISSUER
1. Effective as of the Effective Date, the Issuer hereby accepts
the resignation of the Resigning Trustee as Trustee under the Indenture and
appoints the Successor Trustee as successor in trust under the Indenture and
confirms to the Successor Trustee all of the rights,titles, interests,
capacities, privileges, duties and obligations of the trustee under the
Indenture.
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<PAGE> 4
Effective as of the Effective Date, the Issuer hereby accepts the resignation
of the Resigning Trustee as Agent and appoints the Successor Trustee as Agent.
2. No default (as defined in the Indenture), or event which with
the giving of notice or lapse of time, or both, would constitute a default, has
occurred and is continuing.
3. The Issuer agrees to execute and deliver such further
instruments and to take such further action as the Successor Trustee may
reasonably request so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, titles, interests, capacities,
privileges, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee including, without limitation, providing
notice to, and obtaining the consent of, the appropriate parties.
4. As evidence of the acceptance of such resignations and of such
appointments, the Issuer hereby confirms to the Successor Trustee and the
Resigning Trustee that such resignations and appointments have been duly
authorized and approved by all requisite corporate action on behalf of the
Issuer.
SUCCESSOR TRUSTEE
1. Effective as of the Effective Date, the Successor Trustee
hereby accepts its appointment and delivers this written acknowledgment as
Successor Trustee and Agent under the Indenture and shall be vested with all of
the rights, powers, titles, interests, capacities, privileges, duties and
obligations of the trustee and Agent under the Indenture.
2. The Successor Trustee hereby represents that it is qualified
and eligible under Sections 310(a) and (b) of the Trust Indenture Act of 1939,
as amended and under Sections 7.10 and 10.10 of the Indenture to be appointed
successor trustee and, effective as of the Effective Date accepts the
appointment as successor trustee and Agent and agrees that upon the Effective
Date, it shall become vested with all the rights, powers, titles, interests,
capacities, privileges, duties and obligations of the Resigning Trustee
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<PAGE> 5
as trustee and Agent with respect to the Debentures with like effect as if
originally named as trustee and Agent under the Indenture.
3. Promptly after the Effective Date, the Successor Trustee will
give notice of the appointments made hereby to the Debentureholders pursuant to
Section 7.08 of the Indenture.
MISCELLANEOUS
1. The parties hereto agree that this Instrument does not
constitute an assumption by the Successor Trustee of any liability of the
Resigning trustee arising out of any breach by the Resigning Trustee of its
duties or obligations under the Indenture (a "Prior Liability"). The parties
hereto further agree that, notwithstanding any provision hereof, the Resigning
Trustee shall remain liable for any Prior Liabilities.
2. The parties hereto agree that as of the Effective Date, all
references to the "Trustee" in the Indenture shall be deemed to refer to the
Successor Trustee. After the Effective Date, all notices or payments which
were required by the terms of the Indenture to be given or paid to the
Resigning Trustee, as trustee, shall be given or paid to:
Nationsbank of Texas, N.A.
Corporate Trust Department
901 Main Street, 18th Floor
Dallas, Texas 75202
Attention: Mr. Robert Patterson
3. The resignations, appointments and acceptances effected hereby
shall become effective as of the opening of business on the Effective Date.
4. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York.
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<PAGE> 6
5. This Instrument may be executed in any number of counterparts,
each of which shall be an original, but which counterparts shall together
constitute but one and the same instrument.
6. Nothing contained in this Instrument shall in any way affect
the obligations or rights of the Issuer, the Resigning Trustee or any holder of
the Debentures under the Indenture. This Agreement shall be binding upon and
inure to the benefit of the Issuer, the Resigning Trustee and the Successor
Trustee and their respective successors and assigns.
7. The parties hereby agree that notwithstanding any contrary
instructions received from the Resigning Trustee, from and after the Effective
Date, all fees payable by the Issuer to the Trustee and the Agent under the
Indenture shall henceforth be invoiced by and paid to the Successor Trustee at
such address and account as shall hereafter be provided by the Successor
Trustee to the Issuer.
8. Each of the parties hereto hereby represents and warrants for
itself that as of the date hereof, and the Effective Date:
(a) it has the corporate power and authority to execute
and deliver this Instrument and to perform its
obligations hereunder, and all such action has been
duly and validly authorized by all necessary
proceedings on its part; and
(b) this Instrument has been duly authorized, executed
and delivered by it, and constitutes a legal, valid
and binding agreement enforceable against it in
accordance with its terms, except as the
enforceability of this Instrument may be limited by
bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of
creditor's rights or by general principles of equity
limiting the availability or equitable remedies.
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<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and attested by their duly authorized officers, all as of the
date and year first above written.
MAXUS ENERGY CORPORATION, as Issuer
By:_____________________________
Title:__________________________
Attest:
_____________________________
BANKAMERICA NATIONAL TRUST COMPANY, as
Resigning Trustee
By:____________________________
Title:_________________________
Attest:
_____________________________
NATIONSBANK OF TEXAS, as Successor
Trustee
By:________________________
Title:_____________________
Attest:
_____________________________
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<PAGE> 1
EX 4.2
TRI PARTY AGREEMENT
This TRI PARTY AGREEMENT (this "Instrument"), dated as of January 12,
1994 (the "Execution Date"), by and among MAXUS ENERGY CORPORATION, a Delaware
corporation (the "Issuer"), BANKAMERICA NATIONAL TRUST COMPANY, a National
Banking Association (as successor to Security Pacific National Trust Company
(New York), the "Resigning Trustee") and NATIONSBANK OF TEXAS, N.A., a national
banking association organized under the laws of the United States of America
(the "Successor Trustee").
WITNESSETH:
WHEREAS, Diamond Shamrock Corporation ("DSC") and Mellon Bank, N.A.
entered into an indenture, dated as of November 1, 1985 (as supplemented, the
"Indenture"), providing for the issuance by DSC of $150,000,000 aggregate
principal amount of 11 1/2% Sinking Fund Debentures due November 15, 2015 (the
"Debentures"), of which $109,578,000 is presently outstanding and $40,422,000
has been purchased by the Issuer and is held by the Trustee; and
WHEREAS, the Issuer has succeeded to the interest of DSC under the
Indenture and assumed DSC's obligations under the Securities; and
WHEREAS, Security Pacific National Trust Company (New York) ("Security
Pacific") became successor trustee to Mellon Bank, N.A. by Agreement of
Resignation/Appointment and Acceptance entered as of February 27, 1991, and
Resigning Trustee became the successor in interest to Security Pacific; and
WHEREAS, the Resigning Trustee has been acting as trustee, paying
agent, and registrar under the Indenture; and
<PAGE> 2
WHEREAS, Section 7.08 of the Indenture provides that the trustee may
resign and be discharged from the trust created by the Indenture by giving
written notice thereof to the Issuer; and
WHEREAS, the Resigning Trustee hereby gives notice to the Issuer to
become effective upon the acceptance of appointment by a successor trustee; and
WHEREAS, Section 7.08 of the Indenture further provides that in case
the trustee shall resign, the Issuer shall appoint a successor trustee.
Section 7.10 of the Indenture further provides that the successor trustee shall
meet the requirements provided in Section 10.10 of the Indenture; and
WHEREAS, Section 7.08 of the Indenture provides that any successor
trustee appointed under the Indenture shall execute, acknowledge and deliver to
the Issuer and to the Resigning Trustee an instrument accepting such
appointment and thereupon the resignation of the Resigning Trustee shall become
effective and the Successor Trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, trusts,
duties and obligations of the Resigning Trustee; and
NOW, THEREFORE, pursuant to Sections 7.08 and 7.10 of the Indenture
and in consideration of the covenants herein contained, it is agreed as follows
(words and phrases not otherwise defined in this Instrument having the
definitions given thereto in the Indenture):
RESIGNING TRUSTEE
1. Pursuant to the terms of the Indenture, the Resigning Trustee
hereby notifies the Issuer that the Resigning Trustee is resigning as trustee
under the Indenture effective as of that date which is fourteen (14) days after
the Execution Date or, if such date is not a Business Day, then the next
succeeding Business Day (the "Effective Date").
2. Effective as of the Effective Date, the Resigning Trustee
hereby resigns as the agent of the Issuer (the "Agent") under the Indenture,
including, without limitation, as registrar, paying agent and authenticating
-2-
<PAGE> 3
agent, where the Debentures may be presented for payment, where legal
processes, notices and demands to or upon the Issuer with respect to the
Indenture or the Debentures may be served, given or made, where the Issuer will
keep books for the registration of Debentures and the transfer and exchange of
Debentures and where Debentures may be surrendered for transfer or exchange.
3. Effective as of the Effective Date, the Resigning Trustee
hereby assigns, transfers, delivers and confirms to the Successor Trustee all
of its right, title and interest in and to the trust under the Indenture and
all of its rights, powers, titles, interests, capacities, privileges, duties
and obligations as trustee under the Indenture and agrees to pay over to the
Successor Trustee all property and moneys held by it under the Indenture.
4. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the Successor
Trustee or the Issuer may reasonably request so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, titles,
interests, capacities, privileges, duties and obligations hereby assigned,
transferred, delivered and confirmed to the Successor Trustee; provided,
however, nothing contained in this Agreement shall be deemed to waive, release,
modify, amend or otherwise impair any rights, remedies, claims or indemnities
the Resigning Trustee may have as a resigning trustee under the Indenture, at
law or otherwise, including, without limitation the rights specified in Section
7.07 of the Indenture.
5. Promptly after the Execution Date, the Resigning Trustee shall
provide the governing documents set forth in Exhibit A to the Successor
Trustee.
ISSUER
1. Effective as of the Effective Date, the Issuer hereby accepts
the resignation of the Resigning Trustee as Trustee under the Indenture and
appoints the Successor Trustee as successor in trust under the Indenture and
confirms to the Successor Trustee all of the rights,titles, interests,
capacities, privileges, duties and obligations of the trustee under the
Indenture.
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<PAGE> 4
Effective as of the Effective Date, the Issuer hereby accepts the resignation
of the Resigning Trustee as Agent and appoints the Successor Trustee as Agent.
2. No default (as defined in the Indenture), or event which with
the giving of notice or lapse of time, or both, would constitute a default, has
occurred and is continuing.
3. The Issuer agrees to execute and deliver such further
instruments and to take such further action as the Successor Trustee may
reasonably request so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, titles, interests, capacities,
privileges, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee including, without limitation, providing
notice to, and obtaining the consent of, the appropriate parties.
4. As evidence of the acceptance of such resignations and of such
appointments, the Issuer hereby confirms to the Successor Trustee and the
Resigning Trustee that such resignations and appointments have been duly
authorized and approved by all requisite corporate action on behalf of the
Issuer.
SUCCESSOR TRUSTEE
1. Effective as of the Effective Date, the Successor Trustee
hereby accepts its appointment and delivers this written acknowledgment as
Successor Trustee and Agent under the Indenture and shall be vested with all of
the rights, powers, titles, interests, capacities, privileges, duties and
obligations of the trustee and Agent under the Indenture.
2. The Successor Trustee hereby represents that it is qualified
and eligible under Sections 310(a) and (b) of the Trust Indenture Act of 1939,
as amended and under Sections 7.10 and 10.10 of the Indenture to be appointed
successor trustee and, effective as of the Effective Date accepts the
appointment as successor trustee and Agent and agrees that upon the Effective
Date, it shall become vested with all the rights, powers, titles, interests,
capacities, privileges, duties and obligations of the Resigning Trustee
-4-
<PAGE> 5
as trustee and Agent with respect to the Debentures with like effect as if
originally named as trustee and Agent under the Indenture.
3. Promptly after the Effective Date, the Successor Trustee will
give notice of the appointments made hereby to the Debentureholders pursuant to
Section 7.08 of the Indenture.
MISCELLANEOUS
1. The parties hereto agree that this Instrument does not
constitute an assumption by the Successor Trustee of any liability of the
Resigning trustee arising out of any breach by the Resigning Trustee of its
duties or obligations under the Indenture (a "Prior Liability"). The parties
hereto further agree that, notwithstanding any provision hereof, the Resigning
Trustee shall remain liable for any Prior Liabilities.
2. The parties hereto agree that as of the Effective Date, all
references to the "Trustee" in the Indenture shall be deemed to refer to the
Successor Trustee. After the Effective Date, all notices or payments which
were required by the terms of the Indenture to be given or paid to the
Resigning Trustee, as trustee, shall be given or paid to:
Nationsbank of Texas, N.A.
Corporate Trust Department
901 Main Street, 18th Floor
Dallas, Texas 75202
Attention: Mr. Robert Patterson
3. The resignations, appointments and acceptances effected hereby
shall become effective as of the opening of business on the Effective Date.
4. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York.
-5-
<PAGE> 6
5. This Instrument may be executed in any number of counterparts,
each of which shall be an original, but which counterparts shall together
constitute but one and the same instrument.
6. Nothing contained in this Instrument shall in any way affect
the obligations or rights of the Issuer, the Resigning Trustee or any holder of
the Debentures under the Indenture. This Agreement shall be binding upon and
inure to the benefit of the Issuer, the Resigning Trustee and the Successor
Trustee and their respective successors and assigns.
7. The parties hereby agree that notwithstanding any contrary
instructions received from the Resigning Trustee, from and after the Effective
Date, all fees payable by the Issuer to the Trustee and the Agent under the
Indenture shall henceforth be invoiced by and paid to the Successor Trustee at
such address and account as shall hereafter be provided by the Successor
Trustee to the Issuer.
8. Each of the parties hereto hereby represents and warrants for
itself that as of the date hereof, and the Effective Date:
(a) it has the corporate power and authority to execute
and deliver this Instrument and to perform its
obligations hereunder, and all such action has been
duly and validly authorized by all necessary
proceedings on its part; and
(b) this Instrument has been duly authorized, executed
and delivered by it, and constitutes a legal, valid
and binding agreement enforceable against it in
accordance with its terms, except as the
enforceability of this Instrument may be limited by
bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of
creditor's rights or by general principles of equity
limiting the availability or equitable remedies.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and attested by their duly authorized officers, all as of the
date and year first above written.
MAXUS ENERGY CORPORATION, as Issuer
By:_____________________________
Title:__________________________
Attest:
_____________________________
BANKAMERICA NATIONAL TRUST COMPANY, as
Resigning Trustee
By:____________________________
Title:_________________________
Attest:
_____________________________
NATIONSBANK OF TEXAS, as Successor
Trustee
By: ________________________
Title:______________________
Attest:
_____________________________
-7-
<PAGE> 1
EX 4.3
TRI PARTY AGREEMENT
This TRI PARTY AGREEMENT (this "Instrument"), dated as of January 24,
1994 (the "Execution Date"), by and among MAXUS ENERGY CORPORATION, a Delaware
corporation (the "Issuer"), BANKAMERICA NATIONAL TRUST COMPANY, a National
Banking Association (as successor to Security Pacific National Trust Company
(New York), the "Resigning Trustee") and CHEMICAL BANK, a New York Corporation
(the "Successor Trustee").
WITNESSETH:
WHEREAS, Diamond Shamrock Corporation ("DSC") and Mellon Bank, N.A.
entered into an indenture, dated as of April 1, 1978 (as supplemented, the
"Indenture"), providing for the issuance by DSC of $150,000,000 aggregate
principal amount of 8 1/2% Sinking Fund Debentures due April 1, 2008 (the
"Debentures"), of which $98,224,000 is presently outstanding and $21,776,000
has been purchased by Issuer and is held by the Resigning Trustee; and
WHEREAS, the Issuer has succeeded to the interest of DSC under the
Indenture and assumed DSC's obligations under the Securities; and
WHEREAS, Security Pacific National Trust Company (New York) ("Security
Pacific") became successor trustee to Mellon Bank, N.A. by Agreement of
Resignation/Appointment and Acceptance entered as of February 27, 1991, and
Resigning Trustee became the successor in interest to Security Pacific; and
WHEREAS, the Resigning Trustee has been acting as trustee, paying
agent, and registrar under the Indenture; and
WHEREAS, Section 10.6 of the Indenture provides that the trustee may
resign and be discharged from the trust created by the Indenture by giving
written notice thereof to the Issuer and the Debentureholders; and
WHEREAS, the Resigning Trustee hereby gives notice to the Issuer and
is simultaneously herewith giving notice to the Debentureholders of its
resignation as Trustee, to become effective upon the Effective Date; and
<PAGE> 2
WHEREAS, Section 10.6 of the Indenture further provides that in case
the trustee shall resign, the Issuer shall appoint a successor trustee.
Section 10.6 of the Indenture further provides that the successor trustee shall
meet the requirements provided in Section 10.5 of the Indenture; and
WHEREAS, Section 10.7 of the Indenture provides that any successor
trustee appointed under the Indenture shall execute, acknowledge and deliver to
the Issuer and to the Resigning Trustee an instrument accepting such
appointment and thereupon the resignation of the Resigning Trustee shall become
effective and the Successor Trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, trusts,
duties and obligations of the Resigning Trustee; and
NOW, THEREFORE, pursuant to Sections 10.5, 10.6 and 10.7 of the
Indenture and in consideration of the covenants herein contained, it is agreed
as follows (words and phrases not otherwise defined in this Instrument having
the definitions given thereto in the Indenture):
RESIGNING TRUSTEE
1. Pursuant to the terms of the Indenture, the Resigning Trustee
hereby notifies the Issuer that the Resigning Trustee is resigning as trustee
under the Indenture effective as of that date which is fourteen (14) days after
the Execution Date or, if such date is not a Business Day, then the next
succeeding Business Day (the "Effective Date").
2. Effective as of the Effective Date, the Resigning Trustee
hereby resigns as the agent of the Issuer (the "Agent") under the Indenture,
including, without limitation, as registrar, paying agent and authenticating
agent, where the Debentures may be presented for payment, where legal
processes, notices and demands to or upon the Issuer with respect to the
Indenture or the Debentures may be served, given or made, where the Issuer will
keep books for the registration of Debentures and the transfer and exchange of
Debentures and where Debentures may be surrendered for transfer or exchange.
3. Effective as of the Effective Date, the Resigning Trustee
hereby assigns, transfers, delivers and confirms to the Successor Trustee all
of its right, title and interest in and to the trust under the Indenture and
all of its rights, powers, titles, interests, capacities, privileges, duties
and obligations as trustee under the Indenture and agrees to pay over to the
Successor Trustee all property and moneys held by it under the Indenture.
2
<PAGE> 3
4. The Resigning Trustee agrees to execute and deliver such
further instruments and shall take such further actions as the Successor
Trustee or the Issuer may reasonably request so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, titles,
interests, capacities, privileges, duties and obligations hereby assigned,
transferred, delivered and confirmed to the Successor Trustee; provided,
however, nothing contained in this Agreement shall be deemed to waive, release,
modify, amend or otherwise impair any rights, remedies, claims or indemnitees
the Resigning Trustee may have as a resigning trustee under the Indenture, at
law or otherwise, including, without limitation, the rights specified in
Section 10.2 of the Indenture.
5. Simultaneously with the execution and delivery of this
Instrument, the Resigning Trustee shall cause notice of the resignation
effected hereby to be given as is required pursuant to the Section 10.6 of the
Indenture.
6. Promptly after the Execution Date, the Resigning Trustee shall
provide the governing documents set forth in Exhibit A to the Successor
Trustee.
ISSUER
1. Effective as of the Effective Date, the Issuer hereby accepts
the resignation of the Resigning Trustee as Trustee under the Indenture and
appoints the Successor Trustee as successor in trust under the Indenture and
confirms to the Successor Trustee all of the rights,titles, interests,
capacities, privileges, duties and obligations of the trustee under the
Indenture. Effective as of the Effective Date, the Issuer hereby accepts the
resignation of the Resigning Trustee as Agent and appoints the Successor
Trustee as Agent in the Borough of Manhattan, The City of New York.
2. No default (as defined in the Indenture), or event which with
the giving of notice or lapse of time, or both, would constitute a default, has
occurred and is continuing.
3. The Issuer agrees to execute and deliver such further
instruments and to take such further action as the Successor Trustee may
reasonably request so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, titles, interests, capacities,
privileges, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee including, without limitation, providing
notice to, and obtaining the consent of, the appropriate parties.
4. Promptly after the Effective Date, the Issuer will give notice
of the appointments made hereby to the Debentureholders pursuant to Section
10.7 of the Indenture.
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5. As evidence of the acceptance of such resignations and of such
appointments, the Issuer hereby delivers to the Successor Trustee and the
Resigning Trustee certified resolutions of its Board of Directors accepting
such resignations and providing for such appointments.
SUCCESSOR TRUSTEE
1. Effective as of the Effective Date, the Successor Trustee
hereby accepts its appointment and delivers this written acknowledgment as
Successor Trustee and Agent under the Indenture and shall be vested with all of
the rights, powers, titles, interests, capacities, privileges, duties and
obligations of the trustee and Agent under the Indenture.
2. The Successor Trustee hereby represents that it is qualified
and eligible under Sections 310(a) and (b) of the Trust Indenture Act of 1939,
as amended, and under Section 10.5 of the Indenture to be appointed successor
trustee and, effective as of the Effective Date, hereby accepts the appointment
as successor trustee and Agent and agrees that upon the Effective Date it shall
become vested with all the rights, powers, titles, interests, capacities,
privileges, duties and obligations of the Resigning Trustee as trustee and
Agent with respect to the Debentures with like effect as if originally named as
trustee and Agent under the Indenture.
MISCELLANEOUS
1. The parties hereto agree that this Instrument does not
constitute an assumption by the Successor Trustee of any liability of the
Resigning trustee arising out of any breach by the Resigning Trustee of its
duties or obligations under the Indenture (a "Prior Liability"). The parties
hereto further agree that, notwithstanding any provision hereof, the Resigning
Trustee shall remain liable for any Prior Liabilities.
2. The parties hereto agree that as of the Effective Date, all
references to the "Trustee" in the Indenture shall be deemed to refer to the
Successor Trustee. After the Effective Date, all notices or payments which
were required by the terms of the
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Indenture to be given or paid to the Resigning Trustee, as trustee, shall be
given or paid to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
3. The resignations, appointments and acceptances effected hereby
shall become effective as of the opening of business on the Effective Date.
4. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York.
5. This Instrument may be executed in any number of counterparts,
each of which shall be an original, but which counterparts shall together
constitute but one and the same instrument.
6. Nothing contained in this Instrument shall in any way affect
the obligations or rights of the Issuer, the Resigning Trustee or any holder of
the Debentures under the Indenture. This Agreement shall be binding upon and
inure to the benefit of the Issuer, the Resigning Trustee and the Successor
Trustee and their respective successors and assigns.
7. The parties hereby agree that notwithstanding any contrary
instructions received from the Resigning Trustee, from and after the Effective
Date, all fees payable by the Issuer to the trustee and the Agent under the
Indenture shall henceforth be invoiced by and paid to the Successor Trustee at
such address and account as shall hereafter be provided by the Successor
Trustee to the Issuer.
8. Each of the parties hereto hereby represents and warrants for
itself that as of the date hereof, and the Effective Date:
(a) it has the corporate power and authority to execute
and deliver this Instrument and to perform its
obligations hereunder, and all such action has been
duly and validly authorized by all necessary
proceedings on its part; and
(b) this Instrument has been duly authorized, executed
and delivered by it, and constitutes a legal, valid
and binding agreement enforceable against it in
accordance with its terms, except as the
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enforceability of this Instrument may be limited by
bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of
creditor's rights or by general principles of equity
limiting the availability or equitable remedies.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and attested by their duly authorized officers, all as of the
date and year first above written.
MAXUS ENERGY CORPORATION, as Issuer
By: _____________________________
Title:____________________________
Attest:
_____________________________
BANKAMERICA NATIONAL TRUST COMPANY, as
Resigning Trustee
By: ____________________________
Title:__________________________
Attest:
_____________________________
CHEMICAL BANK, as Successor Trustee
By: ________________________
Title:______________________
Attest:
_____________________________
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