-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, GhVUiM50koLqdqKVzYjE+6M+uFM6DDuJhgHoeuaDQg+vmlmQ8H7zCIszQFp6YwEJ n7QCf/DnXOVWyN8lVQUSAA== 0000950134-94-000127.txt : 19940216 0000950134-94-000127.hdr.sgml : 19940216 ACCESSION NUMBER: 0000950134-94-000127 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19940112 ITEM INFORMATION: 5 ITEM INFORMATION: 7 FILED AS OF DATE: 19940215 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAXUS ENERGY CORP /DE/ CENTRAL INDEX KEY: 0000724176 STANDARD INDUSTRIAL CLASSIFICATION: 1311 IRS NUMBER: 751891531 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 34 SEC FILE NUMBER: 001-08567 FILM NUMBER: 94508282 BUSINESS ADDRESS: STREET 1: 717 N HARWOOD ST- RM 3147 CITY: DALLAS STATE: TX ZIP: 75201-6594 BUSINESS PHONE: 2149532000 FORMER COMPANY: FORMER CONFORMED NAME: DIAMOND SHAMROCK CORP /DE/ DATE OF NAME CHANGE: 19870518 FORMER COMPANY: FORMER CONFORMED NAME: NEW DIAMOND CORP DATE OF NAME CHANGE: 19830908 8-K 1 FORM 8-K FOR PERIOD ENDIND 1-12-94 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) 1-8567-2 75-1891531 (Commission File Number) (I.R.S. Employer Identification No.)
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 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 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.
-2- 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 -3- 4 EXHIBIT INDEX
Exhibit Number Exhibit ------ ------- 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.
-4- EX-4.1 2 EXHIBIT 4.1 TO FORM 8-K 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 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- 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. -3- 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- 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- 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- 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- EX-4.2 3 EXHIBIT 4.2 TO FORM 8-K 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 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- 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. -3- 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- 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- 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- 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- EX-4.3 4 EXHIBIT 4.3 TO FORM 8-K 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 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 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. 3 4 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 4 5 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 5 6 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: _____________________________ 6 -----END PRIVACY-ENHANCED MESSAGE-----