EXHIBIT 99.6
, 2005
EXCHANGE AGENT AGREEMENT
The Bank of New York Trust Company, N.A.
Plaza of the Americas
Corporate Trust Division
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
KCS Energy, Inc., a Delaware corporation (the "Company"), proposes to make
an offer (the "Exchange Offer") to exchange up to $100,000,000 aggregate
principal amount of its 7.125% Senior Notes due 2012 (the "Exchange Notes"), for
a like principal amount of its outstanding 7.125% Senior Notes Due 2012 (the
"Outstanding Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus (the "Prospectus" included
in the registration statement of the Company on Form S-4 (File No.
333- )[, as amended] (the "Registration Statement")) filed with the
Securities and Exchange Commission (the "SEC"), and proposed to be distributed
to all record holders of the Outstanding Notes who acquired such Outstanding
Notes pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "Securities Act"). The Outstanding Notes
and the Exchange Notes are collectively referred to herein as the "Notes" or the
"Securities." Capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Prospectus or the accompanying
Letter of Transmittal (as defined below).
The Company hereby appoints The Bank of New York Trust Company, N.A. to act
as exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York Trust
Company, N.A.
The Exchange Offer is expected to be commenced by the Company on or about
, 2005, after the Registration Statement filed by the Company is
declared effective under the Securities Act (the "Effective Time"), which shall
be on or about , 2005. The letter of transmittal ("Letter of
Transmittal") accompanying the Prospectus is to be used by the holders of the
Outstanding Notes to accept the Exchange Offer, and contains instructions with
respect to the delivery of Outstanding Notes tendered. The Exchange Agent's
obligations with respect to receipt and inspection of the Letter of Transmittal
in connection with the Exchange Offer shall be satisfied for all purposes hereof
by inspection of the electronic message transmitted to the Exchange Agent by
Exchange Offer participants in accordance with the Automated Tender Offer
Program ("ATOP") of the Depositary Trust Company ("DTC"), and by otherwise
observing and complying with all procedures established by DTC in connection
with ATOP, to the extent that ATOP is utilized by Exchange Offer participants.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
, 2005 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (confirmed in writing) or written notice to you at any time before 9:00
a.m., New York City time, on the business day following the previously scheduled
Expiration Date, and in such case the term "Expiration Date" shall mean the time
and date on which such Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole discretion, to delay,
amend or terminate the Exchange Offer, and not to accept for exchange any
Outstanding Notes not theretofore accepted for exchange upon the occurrence of
certain events, including any of the conditions of the Exchange Offer specified
in the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer." The Company will
give to you as promptly as practicable oral (confirmed in writing) or written
notice of any delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the Prospectus captioned
"The Exchange Offer", or in the Letter of Transmittal accompanying the
Prospectus and such duties which are necessarily incidental thereto;
provided however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the
Outstanding Notes at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days
after the date of this Exchange Agent Agreement (the "Agreement"), and any
financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Outstanding Notes by
causing the Book-Entry Transfer Facility to transfer such Outstanding Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. As soon as practicable after receipt, you are to examine each of
the Letters of Transmittal and certificates for Outstanding Notes (or
confirmation of book-entry transfers into your account at the Book-Entry
Transfer Facility) and any other documents delivered or mailed to you by or
for holders of the Outstanding Notes in connection with tenders of
Outstanding Notes, to ascertain whether: (i) the Letters of Transmittal,
certificates and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and in the
Prospectus and that such book-entry confirmations are in due and proper
form and contain the information required to be set forth therein, and (ii)
the Outstanding Notes have otherwise been properly tendered in accordance
with the Prospectus and the Letter of Transmittal. In each case where (i)
the Letter of Transmittal or any other document has been improperly
completed or executed, (ii) book-entry confirmations are not in due and
proper form or omit certain information or (iii) any of the certificates
for Outstanding Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected. If such
condition is not promptly remedied by the presenters, you shall report such
condition to the Company and await its direction. All questions as to the
validity, form, eligibility (including timelines of receipt), acceptance
and withdrawal of any Outstanding Notes tendered or delivered by the
Company shall be determined by the Company, in its sole discretion.
4. With the approval of any of the Chief Executive Officer, Chief
Financial Officer or Secretary of the Company (such approval, if given
orally, promptly to be confirmed in writing) or any other party designated
by such officer in writing, you are authorized to waive any irregularities
in connection with any tender of Outstanding Notes pursuant to the Exchange
Offer.
5. Tenders of Outstanding Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering" and Outstanding Notes shall be
considered properly tendered to you only when tendered in accordance with
the procedures set forth therein. Notwithstanding the provisions of this
paragraph 5, Outstanding Notes which the Chief Executive Officer, Chief
Financial Officer or the Secretary of the Company or any other party
designated by any such officer in writing shall approve as having been
properly tendered shall be considered to be properly tendered (such
approval, if given orally, promptly shall be confirmed in writing).
6. You shall advise the Company with respect to any Outstanding Notes
delivered subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Outstanding Notes.
7. The Company reserves the absolute right (i) to reject any or all
tenders of any particular Outstanding Notes determined by the Company not
to be in proper form or the acceptance or exchange
of which may, in the opinion of the Company's counsel, be unlawful and (ii)
to waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any particular Outstanding Notes, and the
Company's determination of the terms and conditions of the Exchange Offer
(including the Letter of Transmittal and Notice of Guaranteed Delivery and
the instructions set forth therein) will be final and binding.
8. You shall accept tenders:
(a) in cases where the Outstanding Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of Outstanding
Notes provided that customary transfer requirements, including (i) any
endorsement of the Outstanding Note or delivery of a properly completed
bond power, in either case duly executed by each registered holder, (ii)
payment of applicable transfer taxes, and (iii) the requirements imposed
by the transfer restrictions on the Outstanding Notes (including any
applicable requirements for certifications, legal opinion or other
information) are fulfilled.
You shall accept partial tenders of Outstanding Notes where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Outstanding Notes to the transfer agent for the
Outstanding Notes for split-up and return any untendered Outstanding Notes
to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of
the Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Outstanding Notes properly tendered and you, on
behalf of the Company, will exchange such Outstanding Notes for Exchange
Notes and cause such Outstanding Notes to be canceled. Delivery of Exchange
Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of Exchange Notes for each $1,000 principal amount of the
Outstanding Notes tendered promptly after notice (such notice if given
orally, promptly to be confirmed in writing) of acceptance of said
Outstanding Notes by the Company; provided, however, that in all cases,
Outstanding Notes tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Outstanding Notes
(or confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof or an Agent's Message in lieu thereof)
with any required signature guarantees and any other required document.
Unless otherwise instructed in writing by the Company, you shall issue
Exchange Notes only in denominations of $1,000 or any integral multiple
thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Outstanding Notes tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior to
5:00 p.m., New York City time, on the Expiration Date in accordance with
the terms of the Exchange Offer. You shall, after proper notification of
such withdrawal, return such Outstanding Notes to, or in accordance with
the instructions of, the holder of such Outstanding Notes and such
Outstanding Notes shall no longer be considered properly tendered. Any
withdrawn Outstanding Notes may be tendered again following procedures
therefore described in the Prospectus at any time on or prior to the
Expiration Date.
11. The Company shall not be required to exchange any Outstanding
Notes tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Company not to exchange any
Outstanding Notes tendered shall be given (such notices if given orally,
promptly shall be confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Outstanding Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates
for unaccepted Outstanding Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons
who deposited them (or effected such book-entry transfer).
13. All certificates for reissued Outstanding Notes, unaccepted
Outstanding Notes or Exchange Notes (other than those effected by
book-entry transfer) shall be forwarded by (a) first-class mail, postage
pre-paid under a blanket surety bond protecting you and the Company from
loss or liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately for the
replacement value of each of such certificates.
14. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other
persons or to engage or utilize any persons to solicit tenders.
15. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the Outstanding Notes deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange
Offer;
(b) shall not take any legal action hereunder against any third
party, other than the Company, without the prior written consent of the
Company, and shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with reasonable
indemnity against such expense or liability;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted,
without negligence, misconduct or bad faith on your part, by reason of
or as a result of the administration of your duties hereunder in
accordance with the terms and conditions of this Agreement or by reason
of your compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in
reliance upon any certificate, instrument, opinion, notice, letter,
facsimile or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper
party or parties;
(d) in connection with the administration of your duties hereunder
and in the absence of negligence, misconduct or bad faith on your part,
may reasonably rely upon any tender, statement, request, comment,
agreement or other instrument whatsoever, not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
you shall in good faith reasonably believe to be genuine or to have been
signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions from any officer of the Company authorized
to provide instructions under this Agreement;
(f) shall not advise any person tendering Outstanding Notes
pursuant to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of the Outstanding Notes or as to the
market value, decline or appreciation in market value of any Outstanding
Notes that may or may not occur as a result of the Exchange Offer or as
to the market value of the Exchange Notes and shall not solicit any
holder of Outstanding Notes for the purpose of causing such person to
tender its Outstanding Notes;
(g) may consult with counsel with respect to any questions relating
to your duties and responsibilities, and the written advice or opinion
of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by you hereunder in good faith and in reliance thereon; and
(h) in the absence of negligence, willful misconduct or bad faith
on your part, shall in no event be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if you have been advised of the
likelihood of such loss or damage and regardless of the form of action.
16. As soon as practicable after your receipt of notification from the
Company as to the Effective Time, you shall send to all holders of
Outstanding Notes a copy of the Prospectus, the Letter of Transmittal
(including instructions for completing a substitute Form W-9), the notice
of guaranteed delivery (as described in the Prospectus) and such other
documents (collectively, the "Exchange Offer Documents") as may be
furnished by the Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Company or its counsel
(and such other action as you may reasonably deem appropriate) to furnish
copies of the Exchange Offer Documents or such other forms as may be
approved from time to time by the Company, to all holders of Outstanding
Notes and to all persons reasonably requesting such documents and to accept
and comply with telephone and mail requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents to enable you to
perform your duties hereunder. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention: Xxxx
Xxxxx at (000) 000-0000.
17. You shall advise, by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxx Xxxxx (at the facsimile
number (000) 000-0000), and such other person or persons as the Company may
request, daily, and more frequently during the week immediately preceding
the Expiration Date and if otherwise requested by the Company, up to and
including the Expiration Date, as to the aggregate principal amount of
Outstanding Notes which have been tendered pursuant to the Exchange Offer
and the items received by you pursuant to the Exchange Offer and this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons as the Company requests in writing from time to time
prior to the Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the Company may
request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Outstanding Notes tendered, the aggregate
principal amount of Outstanding Notes accepted and the identity of any
participating Broker-Dealers and the aggregate principal amount of Exchange
Notes delivered to each, and deliver said list to the Company promptly
after the deadline for the Exchange Offer or the Expiration Date.
18. Each Letter of Transmittal, Outstanding Note and any other
document received by you in connection with the Exchange Offer shall be
stamped by you as to the date and the time of receipt thereof (or if
Outstanding Notes are tendered by book-entry delivery, such form of record
keeping of receipt as is customary for tenders through ATOP) and, if
defective, the date and time the last defect was cured or waived by the
Company. You shall retain all Outstanding Notes and Letters of Transmittal
and other related documents or correspondence received by you until the
Expiration Date. You shall return all such material to the Company as soon
as practicable after the Expiration Date. You shall dispose of unused
Letters of Transmittal and other surplus materials in accordance with your
customary procedures.
19. It is understood and agreed that the securities, money or property
to be deposited with or received by you as Exchange Agent (the "Property")
constitute a special, segregated account held solely for the benefit of the
Company and the tendering holders of Outstanding Notes as their interests
may appear, and the Property shall not be commingled with the money, assets
or properties of you or of any
other person, firm or corporation. You hereby waive any and all rights of
lien, encumbrance, attachment or right of set-off whatsoever, if any, that
you may have with respect to the Property so deposited, whether such rights
arise by reason of applicable law, contract or otherwise.
20. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses
in accordance with Schedule I hereto.
21. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer
attached hereto and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus, the Letter of Transmittal and such other forms (as they may be
amended from time to time), on the other hand, shall be resolved in favor
of the Prospectus, the Letter of Transmittal and such other forms, except
with respect to the duties, liabilities and indemnification of you as
Exchange Agent which shall be controlled by this Agreement.
22. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or
expense, including reasonable-attorneys' fees and expenses, arising out of
or in connection with your appointment as Exchange Agent and the
performance of your duties hereunder, including, without limitation, any
act, omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to
be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Outstanding Notes reasonably believed by you in good faith
to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Outstanding Notes; provided, however,
that the Company shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of your
negligence, willful misconduct or bad faith. In no case shall the Company
be liable under this indemnity with respect to any action, proceeding, suit
or claim against you unless the Company shall be notified by you, by letter
or facsimile transmission confirmed by letter, of the written assertion of
any action, proceeding, suit or claim made or commenced against you
promptly after you shall have been served with the summons or other first
legal process or have received the first written assertion, giving
information as to the nature and basis of the action, proceeding, suit or
claim. The Company shall be entitled to participate at its own expense in
the defense of any such action, proceeding, suit or claim and if the
Company so elects, assume defense of such action, proceeding, suit or
claim. In the event that the Company assumes such defense, the Company
shall not thereafter be liable for the fees and expenses of any additional
counsel that you retain. You agree that, without the prior written consent
of the Company (which consent shall not be unreasonably withheld), you will
not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not you are an actual or potential
party to such claim, action or proceeding). Under no circumstances shall
the Company be liable for the costs and expenses of any settlement of any
action, proceeding, suit or claim effected by you without the prior written
consent of the Company.
23. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Company understands that you are required, in
certain instances, to backup withhold at the applicable rate with respect
to interest paid on the Exchange Notes and proceeds from the sale,
exchange, redemption or retirement of the Exchange Notes from holders who
have not supplied their correct Taxpayer Identification Numbers or required
certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations.
24. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Outstanding Notes and shall deliver
or cause to be delivered, in a timely manner, to each governmental
authority to which any transfer taxes are payable in respect of the
exchange of Outstanding Notes your check in the amount of all transfer
taxes so payable, and, subject to the provisions of Section 8(c) of this
Agreement, the Company shall reimburse you for the amount of any and all
transfer
taxes payable in respect of the exchange of Outstanding Notes; provided
however, that you shall reimburse the Company for amounts refunded to you
in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
25. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and permitted assigns of each of the parties
hereto and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Without limitation
of the foregoing, the parties hereto expressly agree that no holder of
Outstanding Notes or Exchange Notes shall have any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
26. The Company and you hereby submit to the exclusive jurisdictions
of the Federal and state courts in the state of Texas in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
27. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
28. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
29. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party
to be charged.
30. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
KCS Energy, Inc.
0000 Xxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
With a copy to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
If to the Exchange Agent:
The Bank of New York Trust Company, N.A.
Plaza of the Americas
Corporate Trust Division
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
31. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19 and 22 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property
(including, without limitation, Letters of Transmittal and any other
documents relating to the Exchange Offer) then held by you as Exchange
Agent under this Agreement.
32. You may resign from your duties under this Agreement by giving to
the Company 30 days' prior written notice. If you resign or become
incapable of acting as Exchange Agent and the Company fails to appoint a
new exchange agent within a period of 30 days after it has been notified in
writing of such resignation or incapacity by you, the Company shall appoint
a successor exchange agent or assume all of the duties and responsibilities
of the Exchange Agent. Any successor exchange agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Exchange Agent without any further act or deed; but you
shall deliver and transfer to the successor exchange agent any Property at
the time held by you hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for such purpose.
33. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
KCS ENERGY, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK TRUST COMPANY,
N.A.
By:
----------------------------------
Name:
Title:
SCHEDULE I
KCS ENERGY, INC.
EXCHANGE AGENCY
FEE SCHEDULE
[TO COME]
