SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
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Maxus Energy Corporation
(Name of Issuer)
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Common Stock, Par Value $1.00 Per Share
(Title of Class of Securities)
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577730 10 4
(CUSIP Number)
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Mr. Nells Leon
YPF Sociedad Anonima
Avenida Pte. Roque Saenz Pena 777
1364 Buenos Aires, Argentina
Telephone: (011) (541) 329-2000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
Copy to:
P. Dexter Peacock, Esq.
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
Houston, Texas 77002
Telephone: (713) 220-4200
June 8, 1995
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Exchange Act") or otherwise subject to the liabilities of that section of
the Exchange Act but shall be subject to all other provisions of the Exchange
Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP NO. 577730 10 4 PAGE 2 OF 14 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
YPF Acquisition Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP *
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC; BK; AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED 0
BY EACH
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP NO. 577730 10 4 PAGE 3 OF 14 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
YPF Sociedad Anonima
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP *
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC; SC; BK; AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Argentina
7 SOLE VOTING POWER
NUMBER OF 135,609,772
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED 0
BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 135,609,772
WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
135,609,772
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100.0%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
Page 4 of 14
This Amendment No. 2 amends the Schedule 13D (the "Schedule 13D"), dated
April 11, 1995 as amended on April 13, 1995, originally filed in connection with
the acquisition by YPF Acquisition Corp., a Delaware corporation (the
"Purchaser"), and YPF Sociedad Anonima, a sociedad anonima (stock corporation)
organized under the laws of the Republic of Argentina ("YPF"), of the
outstanding shares of common stock, par value $1.00 per share, of Maxus Energy
Corporation, a Delaware corporation ("Maxus" or the "Company"), pursuant to a
tender offer (the "Offer"). Unless otherwise defined herein, all terms used
herein shall have the meanings set forth in the Schedule 13D.
This Amendment No. 2 is made to reflect the material changes brought about
on June 8, 1995 upon the merger of the Purchaser with and into Maxus (the
"Merger") as well as subsequent changes in the financing of the Merger.
Item 2. Identity and Background
- ------ -----------------------
Item 2 of the Schedule 13D is hereby amended to add the following sentence
following the sixth paragraph as the seventh paragraph:
On June 8, 1995, the Purchaser was merged with and into Maxus pursuant
to the Merger Agreement (defined below). Accordingly, the Purchaser ceased
to exist as a separate entity. As a result of the merger of the Purchaser
and Maxus, all outstanding Shares of Maxus, the surviving corporation,
became directly owned by YPF as described below.
Section 2 of Schedule I of the Schedule 13D is also hereby amended and
restated to read in its entirety as set forth in Schedule I attached to this
Amendment No. 2 to reflect the current officers and directors of YPF.
Item 3. Source and Amount of Funds or Other Consideration
- ------ -------------------------------------------------
Item 3 of the Schedule 13D is hereby amended and restated to read in its
entirety:
On February 28, 1995, Maxus, YPF Acquisition Corp., a Delaware
corporation (the "Purchaser") and YPF entered into an Agreement of Merger
(the "Merger Agreement") pursuant to which (i) the Purchaser agreed to make
a cash tender offer (the "Offer") for all the issued and outstanding Shares
for $5.50 per Share in cash and (ii) subject to the satisfaction of certain
conditions, including the condition that Shares representing at least a
majority of the Voting Shares (as defined below) of Maxus, on a fully
diluted basis, were validly tendered pursuant to the Offer, the Purchaser
and Maxus agreed that the Purchaser would be merged with and into Maxus
(the "Merger") as soon as practicable following the satisfaction of such
conditions.
The Offer expired at midnight on March 30, 1995. On March 31, 1995,
YPF announced that the Purchaser would accept for purchase all Shares
validly tendered and not withdrawn prior to the expiration of the Offer.
The total amount of funds required by the Purchaser to acquire the
entire common equity interest in the Company, including the purchase of
Shares pursuant to the Offer and the payment for Shares converted into the
right to receive cash pursuant to the Merger, and to pay related fees and
expenses, is expected to be approximately $800 million. On April 5, 1995,
the Purchaser entered into a credit agreement (the "Credit Agreement") with
lenders for which The Chase Manhattan Bank (National Association) ("Chase")
acts as agent, pursuant to which the lenders extended to the Purchaser a
$550 million credit facility (the "Purchaser Facility"). On April 5, 1995,
the Purchaser borrowed $442.2 million under the Purchaser Facility and
received a capital contribution of $250 million from YPF. On April 5,
1995, the Purchaser used borrowings under the Purchaser Facility and the
funds contributed to it by YPF to purchase 119,339,683 Shares pursuant to
the Offer.
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Page 5 of 14
On April 13, 1995, the depositary, The Chase Manhattan Bank (National
Association), notified YPF and the Purchaser that, upon final tabulation,
an additional 660,930 Shares had been properly tendered and not withdrawn
prior to the expiration of the Offer. The Purchaser took delivery of these
additional Shares and delivered the purchase price for the additional
Shares on April 13, 1995. The $3.6 million purchase price for such
additional Shares was paid out of funds previously borrowed on April 5,
1995 under the Purchaser Facility.
Pursuant to a commitment letter from Chase (the "Commitment Letter"),
Chase agreed to provide two additional credit facilities aggregating $425
million: (i) a credit facility of $250 million to be extended to Midgard
Energy Company ("Midgard"), a wholly owned subsidiary of the Company, and
(ii) a credit facility of $175 million to be extended to certain other
subsidiaries of the Company as described below.
On June 8, 1995, the Purchaser was merged with and into Maxus.
Midgard entered into a Credit Agreement, dated June 8, 1995 (the "Midgard
Facility"), pursuant to which a loan of $250 million was extended to
Midgard. The proceeds of the Midgard Facility were used to repay, in part,
the Purchaser Facility at the time of the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware (the "Effective
Time"). In addition, approximately $8 million of the loans outstanding
under the Purchaser Facility, which was assumed by Maxus, including accrued
interest on the Purchaser Facility loans, was repaid on June 8, 1995 from
cash held by the Company. At this time, the Purchaser Facility was
extended to June 16, 1995.
Maxus Indonesia, Inc. ("Holdings") entered into a Credit Agreement,
dated June 16, 1995 (the "Subsidiaries Facility"), pursuant to which a loan
of $175 million was extended to Holdings. The proceeds of the Subsidiaries
Facility were used to repay the outstanding portion of the Purchaser
Facility on June 16, 1995. The approximately $85.9 million to be paid to
the holders of the 15,609,159 Shares that were converted into the right to
receive cash in the Merger will be paid by the Company from available cash.
Chase arranged the various syndicates of commercial banks, financial
institutions and other investors to provide a portion of the Midgard
Facility and the Subsidiaries Facility and acts as the agent for such
lenders in connection with each of these facilities.
The following is a description of the principal terms of the Midgard
Facility and the Subsidiaries Facility.
Midgard Facility. Approximately $250 million of the loans under the
Purchaser Facility was repaid on June 8, 1995 with funds provided to the
Company by Midgard. Midgard provided the funds from the proceeds of a loan
of $250 million (the "Midgard Loan") pursuant to the Midgard Facility. The
Midgard Loan was made in a single drawing, will mature on December 31, 2003
and will be repaid in up to 28 consecutive quarterly installments
commencing on March 31, 1997, subject to semi-annual borrowing base
redeterminations. At Midgard's option, the interest rate applicable to the
Midgard Loan will be, until March 31, 1997, either (i) the one-, two- or
three-month London Interbank Offered Rate plus a margin of 1 3/4% or (ii)
the Base Rate (as defined in the Midgard Facility) plus a margin of 3/4%
and, thereafter, either (iii) the one-, two- or three-month London
Interbank Offered Rate plus a margin of 2 1/4% or (iv) the Base Rate plus
a margin of 1 1/4%. The Midgard Loan is not secured but is guaranteed by
YPF and the Company. The agreement evidencing the Midgard Loan contains,
among other things, a negative pledge on all assets of Midgard, subject to
customary exceptions. It is anticipated that the Midgard Loan will be
repaid with funds generated by Midgard's business operations.
Subsidiaries Facility. Approximately $175 million of the Purchaser
Facility was repaid with funds provided on June 16, 1995 to the Company by
Holdings. Holdings provided these funds from the proceeds of a loan of
$175 million (the "Subsidiaries Loan") made to it pursuant to the
Subsidiaries Facility. The Subsidiaries Loan was made in a single drawing
on June 16, 1995, will mature on December 31, 2002 and will be repaid in up
to 24 consecutive quarterly installments
<PAGE>
Page 6 of 14
commencing on March 31, 1997, subject to semi-annual borrowing base
redeterminations. At the option of Holdings, the interest rates applicable
to the Subsidiaries Loan will be, until March 31, 1997, either (i) the
one-, two- or three-month London Interbank Offered Rate plus a margin of
2 1/4% or (ii) the Base Rate (as defined in the Subsidiaries Facility)
plus a margin of 1 1/4% and, thereafter, either (iii) the one-, two- or
three-month London Interbank Offered Rate plus a margin of 2 3/4% or (iv)
the Base Rate plus a margin of 1 3/4%. The Subsidiaries Loan to Holdings
is secured by the stock of Maxus Northwest Java, Inc. ("Java") and Maxus
Southeast Sumatra, Inc. ("Sumatra") (collectively, the "Holdings
Subsidiaries") and by the interest of Holdings, Java and Sumatra in
certain accounts maintained at Chase into which the proceeds of sales of
hydrocarbons are to be deposited, and is guaranteed by Java, Sumatra, YPF
and the Company. The agreement evidencing the Subsidiaries Loan contains
a negative pledge on all of the other assets of Holdings, subject to
customary exceptions. It is anticipated that the Subsidiaries Loan will
be repaid with funds generated by the Holdings Subsidiaries' business
operations.
Prepayment. Each of the Midgard Loan and the Subsidiaries Loan
(collectively, the "Loans") may be prepaid in whole or in part without
premium or penalty, except for costs associated with the prepayment of any
portion of a Loan bearing interest at a rate determined by reference to the
London Interbank Offered Rate prior to the end of any applicable interest
period.
YPF and Maxus Guarantees. YPF and Maxus have each guaranteed the
repayment of the Midgard Facility and the Subsidiaries Facility. Copies of
the YPF Guarantee Agreements with respect to the Midgard Facility and the
Subsidiaries Facility are attached hereto as Exhibits G and H,
respectively.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended and restated in its entirety
to read as follows:
In mid-1994, YPF's Board of Directors adopted the goals of becoming an
internationally diversified oil and gas company with significant assets
outside Argentina and obtaining management personnel skilled and
experienced in exploring for and producing oil and gas internationally.
YPF believes that Maxus presents a good fit with its goals. Accordingly,
YPF and the Purchaser entered into the Merger Agreement, and made the
Offer pursuant to the terms of the Merger Agreement, for the purpose of
acquiring all of the outstanding Shares.
(a) Acquisition and disposition of securities of Maxus.
On February 28, 1995, YPF, Maxus and the Purchaser entered into the
Merger Agreement pursuant to which, as described in Item 3 above, the
Purchaser commenced the Offer. The Offer expired at midnight on March 30,
1995. The Purchaser took delivery of 119,339,683 Shares, representing
approximately 88.0% of the issued and outstanding Shares as of such date,
and delivered the purchase price for them on April 5, 1995. On April 13,
1995, the Purchaser was notified by the depositary that an additional
660,930 Shares had been validly tendered and not withdrawn prior to the
expiration of the Offer. The Purchaser took delivery of all such
additional Shares and delivered the purchase price therefor on such date.
As a result, the Purchaser owned an aggregate of 120,000,613 Shares, or an
aggregate of approximately 88.5% of the issued and outstanding Shares.
Pursuant to the Merger Agreement, Maxus, the Purchaser and YPF agreed to
cause the merger of the Purchaser with and into Maxus as soon as
practicable following the purchase of Shares pursuant to the Offer.
Pursuant to the Delaware General Corporation Law ("DGCL") and the Company's
Restated Certificate of Incorporation (the "Certificate"), the approval and
adoption of the Merger required the affirmative vote of the holders of a
majority of the combined voting power of the outstanding Shares and $4.00
Cumulative Convertible Preferred Stock (collectively, the "Voting Shares"),
voting together as a single class. Following the Offer, the Purchaser
owned an aggregate of approximately 85.7% of the Voting Shares.
<PAGE>
Page 7 of 14
The Merger was consummated on June 8, 1995, at which time the
Purchaser was merged with and into the Company. YPF became the sole holder
of the Shares after the Merger (except to the extent that holders of
outstanding options and warrants may exercise such options and warrants for
Shares, or holders of shares of the Company's $4.00 Cumulative Convertible
Preferred Stock (the "$4.00 Preferred Stock") may exercise their rights to
convert shares of $4.00 Preferred Stock into Shares). The holders of
Shares as of the Effective Time (other than YPF and those who perfected
appraisal rights under Section 262 of the DGCL) were given the right to
receive $5.50 in cash, without interest, for each Share held immediately
prior to the Merger. All outstanding shares of the Company's preferred
stock remain outstanding and have the identical powers, preferences,
rights, qualifications, limitations and restrictions as such shares of
preferred stock previously had (including, in the case of the $4.00
Preferred Stock, the right to convert into Shares), except for certain
changes to the terms of the $9.75 Cumulative Convertible Preferred Stock
(the "$9.75 Preferred Stock") as agreed to by the holder of the $9.75
Preferred Stock as described below in Item 6. Outstanding options or
warrants to acquire Shares that were not exercised prior to the Effective
Time, or surrendered in the case of employee or director stock options,
remain outstanding and have the identical terms as such options and
warrants previously had.
(b) Merger of Purchaser and Maxus.
Pursuant to the terms of the Merger Agreement, the Purchaser merged
with and into Maxus on June 8, 1995. Certain effects of the Merger
Agreement and the Merger are described in this Item 4.
(c) Sales or transfers of material amounts of assets of Maxus or its
subsidiaries.
YPF is engaged in a comprehensive review of Maxus' business and
operations, which may or may not result in sales or transfers of material
amounts of assets, and YPF and Maxus have received numerous proposals from
third parties regarding the purchase of various assets of Maxus. However,
YPF is not currently considering any specific plans or proposals for the
sale or transfer of a material amount of Maxus' assets.
(d) Change in the present Board of Directors and management of Maxus.
The Merger Agreement provides, among other things, that so long as YPF
and/or any of its direct or indirect wholly owned subsidiaries own a
majority of the outstanding Voting Shares, YPF is entitled, subject to
compliance with applicable law and the Certificate, to designate at its
option up to that number of directors, rounded up to the nearest whole
number, of the Company's Board of Directors (the "Board") as will make the
percentage of the Company's directors designated by YPF equal to the
percentage of outstanding Voting Shares held by YPF and any of its direct
or indirect wholly owned subsidiaries. The Company agreed that it would,
upon the request of YPF, promptly increase the size of its Board and/or use
its reasonable best efforts to secure the resignation of such number of
directors as is necessary to enable YPF's designees to be elected to the
Board and to use its reasonable best efforts to cause YPF's designees to be
so elected, subject to Section 14(f) of the Exchange Act; except that,
prior to the Effective Time, the Company would use its reasonable best
efforts to assure that the Board always had (at its election) at least
three members who were directors of the Company as of February 28, 1995.
At such times, the Company agreed to use its reasonable best efforts,
subject to any limitations imposed by applicable law or rules of the
New York Stock Exchange (the "NYSE"), to cause persons designated by YPF to
constitute the same percentage as such persons represent on the Board of
(i) each committee of the Board, (ii) each board of directors or board of
management of each subsidiary of the Company, and (iii) each committee of
each such board.
The Purchaser's ownership of approximately 85.7% of the outstanding
Voting Shares prior to the Merger entitled it to be represented on the
Board pursuant to the above-described provision, and the Purchaser
designated five persons, Messrs. Jose A. Estenssoro, Cedric Bridger, Peter
<PAGE>
Page 8 of 14
Gaffney, James R. Lesch and P. Dexter Peacock (collectively, the
"Designees") to serve on the Board. All of the then directors of the
Company, except Messrs. Charles L. Blackburn, George L. Jackson and
R.A. Walker, submitted their resignations from the Board on April 21, 1995
(the "Election Date") and, effective upon such resignations, the remaining
directors on the Board elected the Designees to the Board to fill the
vacancies created thereby. As a result of the foregoing, the Board
consisted of the five Designees, and Messrs. Blackburn, Jackson and Walker,
with five vacancies. Mr. Nells Leon was designated by YPF and appointed to
the Board of Maxus following the death of Mr. Estenssoro in May, 1995.
Certain additional information relating to the election of the
Designees is contained in the information statement filed by the Company
pursuant to Rule 14f-1 under the Exchange Act (the "14f-1 Information
Statement") with the Securities and Exchange Commission (the "Commission")
and mailed on or about April 11, 1995 to Stockholders of record as of April
4, 1995.
On April 7, 1995, all of the Company's eight executive officers gave
notice of their intent to resign under circumstances in which they had the
right to receive certain prenegotiated severance payments. In order to
facilitate the transition following such event, the Company and its
executive officers agreed that the executive officers would continue to
work for the Company in their then-present positions at their then-current
level of compensation until June 30, 1995 or until otherwise mutually
agreed. The Company also agreed to pay the executive officers such
severance payments and paid seven of such severance payments on April 12,
1995. Effective as of June 1, 1995, Mr. David A. Wadsworth, formerly
Associate General Counsel of the Company, was named Vice President, Legal,
Mr. M.J. Gentry, formerly Vice President, Administration of the Company,
was named Vice President, Finance and Administration and Chief Financial
Officer, and Mr. Mark Miller, formerly a general manager of the Company,
was named Vice President, Operations and Planning.
Mr. Charles L. Blackburn resigned as Chairman, President and Chief
Executive Officer of the Company on April 21, 1995. YPF asked Mr.
Blackburn to become an international consultant to YPF and to remain a
director of the Company. Under a two-year arrangement, Mr. Blackburn will
be available to render consulting services for a minimum of 60 days per
year and will be paid a retainer of $180,000 per year. Mr. Blackburn will
also be paid $3,000 per day for each day in excess of 60 days per year in
which he renders consulting services for YPF. He will also be provided
offices in Dallas and Buenos Aires.
On April 21, 1995, Mr. Peter Gaffney, a Designee, was named the
interim President and Chief Executive Officer of the Company. Mr. Gaffney
will receive $50,000 per month and will be eligible to participate in the
Company's benefit plans for executive officers. This six-month arrangement
between Mr. Gaffney and YPF is renewable upon mutual agreement.
Immediately prior to the Effective Time, the Board of Directors of the
Purchaser consisted of Messrs. Le n, Bridger, Gaffney, Lesch and Peacock.
Pursuant to the Merger Agreement, at the Effective Time, the directors of
Purchaser immediately prior to the Effective Time became the directors of
the Company and the officers of the Company immediately prior to the
Effective Time remained the officers of the Company, and in each case will
remain in such positions until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Company's Certificate, By-Laws and the DGCL.
Messrs. Blackburn, Jackson and Walker were elected as directors of the
Company immediately following the Effective Time.
(e) Material changes in present capitalization and dividend policy of
Maxus.
YPF and the Company have made material changes in the capitalization
of the Company through the assumption of the debt described in Item 3
above. In addition, pursuant to the Merger Agreement, in the event that
the Company is unable to meet its obligations as they come due,
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Page 9 of 14
whether at maturity or otherwise, including, solely for the purposes of
this undertaking, dividend and redemption payments with respect to the
Preferred Stock, YPF has agreed to capitalize the Company in an amount
necessary to permit the Company to meet such obligations; provided,
however, that YPF's aggregate obligation will be (i) limited to the amount
of debt service obligations under the Midgard Facility and the Subsidiaries
Facility and (ii) reduced by the amount, if any, of capital contributions
received by the Company after the Effective Time and the net proceeds of
any sale by the Company of common stock or non-redeemable preferred stock
after the Effective Time. The foregoing obligations of YPF will survive
until June 8, 2004.
Effective as of June 8, 1995, YPF guaranteed the Company's outstanding
long-term debt. The long-term debt to be covered by the YPF guarantee is
the Company's outstanding 11 1/4%, 11 1/2% and 8 1/2% Sinking Fund
Debentures, its outstanding 9 7/8%, 9 1/2% and both series of its 9 3/8%
Notes, and its outstanding medium-term notes (the "Company Indenture
Securities"). A copy of the Guarantee Agreement, dated June 8, 1995,
of YPF in connection with the Company Indenture Securities is attached
hereto as Exhibit F.
YPF has guaranteed, effective as of June 8, 1995, the payment and
performance of Maxus' obligations to the holders of the $9.75 Preferred
Stock, including the obligation to pay quarterly dividends and to redeem
shares under certain circumstances.
YPF has no present plans or proposals which relate to or would result
in a material change in the dividend policy of the Company.
(f) Other material changes in the Company's business or corporate
structure.
YPF expects the Company's business will continue to be conducted in
its current corporate form, and it is intended that Maxus would act as
YPF's international exploration and production arm.
(g) Changes in the Company's charter, by-laws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person.
While YPF reserves the right to take or recommend such actions as it
may consider desirable in light of its ongoing review of the businesses and
operations of Maxus and Maxus' subsidiaries, YPF has no present plans or
proposals which relate to further changes in the Company's Certificate, By-
Laws or instruments corresponding thereto which may impede the acquisition
of control of the Company by any person or other actions which may impede
the acquisition of control of the Company by any person.
(h) and (i) Delisting of securities of the Company; Termination of
registration pursuant to Section 12(g)(4) of the Act.
The Shares have been delisted from the NYSE, the Pacific Stock
Exchange and all foreign securities exchanges on which the Shares were
listed. The Shares are currently registered under the Exchange Act.
Registration of the Shares under the Exchange Act may be terminated upon
application by the Company to the Commission if the Shares are not listed
on a national securities exchange and there are fewer than 300 record
holders of the Shares. YPF expects to seek or cause the Company to make an
application for termination of registration of the Shares. Termination of
registration of the Shares under the Exchange Act would not affect the
registration of the $4.00 Preferred Stock and the $2.50 Preferred Stock
under the Exchange Act, the holders of which would continue to be entitled
to information required to be furnished to them thereunder. Termination of
registration of the Shares would reduce substantially the information
required to be furnished by the Company to holders of Shares and would make
certain provisions of the Exchange Act, including the requirement of
furnishing a proxy statement or information statement in connection with
stockholders' meetings pursuant to Section 14(a) and the requirements of
Rule 13e-3 under
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Page 10 of 14
the Exchange Act with respect to "going private" transactions, no longer
applicable to the Shares. The requirements under the Exchange Act with
respect to the Company's other registered securities, however, would
continue to be applicable.
YPF and the Company agreed to use their respective reasonable efforts
to continue the listing on the NYSE of the series of Preferred Stock which
are currently listed on such Exchange, or, if any such series were
delisted, to cause such series of the Preferred Stock to be listed on
another national securities exchange within the United States or admitted
to trading with the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market and on other organized securities
markets in such foreign jurisdictions in which such shares are presently
traded. Notwithstanding anything in the Merger Agreement to the contrary,
the obligations of the Company and YPF regarding continued listing of the
Preferred Stock will survive the Effective Time with respect to any series
of Preferred Stock until such time as the aggregate market value of all
outstanding shares of such series is less than $2 million or the number of
outstanding shares of such series is less than 100,000.
Pursuant to the rules of the NYSE, the $4.00 Preferred Stock was
delisted from the NYSE when the Shares were delisted on June 8, 1995. The
$4.00 Preferred Stock began trading on the NASDAQ National Market on June
9, 1995 and continues to be registered under the Exchange Act. The
Company's $2.50 Preferred Stock and the 8 1/2% Sinking Fund Debentures Due
April 1, 2008 (the "8 1/2% Debentures") remain registered under the
Exchange Act and listed on the NYSE. Although the registration of the
Shares under the Exchange Act is expected to be terminated, registration
under the Exchange Act of the $4.00 Preferred Stock, the $2.50 Preferred
Stock, the 8 1/2% Debentures or other securities of the Company is
expected to continue. Accordingly, the Exchange Act requirement that the
Company file periodic reports will remain applicable as long as the $4.00
Preferred Stock, the $2.50 Preferred Stock, the 8 1/2% Debentures or the
other securities of the Company continue to be registered under the
Exchange Act.
The Exchange Act provides that registration of the $4.00 Preferred
Stock, the $2.50 Preferred Stock or the 8 1/2% Debentures may be terminated
upon application by the Company to the Commission if such class of
securities is not listed on a national securities exchange and there are
fewer than 300 record holders of such class of securities. Termination of
registration of any such class of securities would reduce substantially the
information required to be furnished by the Company to holders of such
class of securities. Termination of registration of the $4.00 Preferred
Stock or the $2.50 Preferred Stock would make certain provisions of the
Exchange Act, including the requirement of furnishing a proxy statement or
information statement pursuant to Section 14(a) in connection with
stockholders' meetings and the requirements of Rule 13e-3 under the
Exchange Act with respect to "going private" transactions, no longer
applicable to such class of securities. If registration of any such class
of securities under the Exchange Act were to be terminated, such class of
securities would no longer be "margin securities" or be eligible for
listing on the NYSE or NASDAQ National Market, as the case may be.
Item 5. Interest in Securities of the Issuer
Item 5(a) and (b) of Schedule 13D is hereby amended and restated in its
entirety:
(a) and (b) Following the Merger, YPF has sole voting and dispositive
power over 135,609,772 Shares, which represents approximately 100.0% of the
outstanding Shares and 96.9% of the outstanding Voting Shares.
Item 7. Material to be Filed As Exhibits
Item 7 is hereby amended to add the following exhibits, which are filed
hereto with this Amendment No. 2:
<PAGE>
Page 11 of 14
Exhibit F Guarantee Agreement, dated June 8, 1995, of YPF Sociedad Anonima
in connection with the Company Indenture Securities.
Exhibit G YPF Guarantee Agreement, dated June 8, 1995, between YPF Sociedad
Anonima and The Chase Manhattan Bank (National Association) as
agent for the lenders under the Midgard Facility.
Exhibit H YPF Guarantee Agreement, dated June 16, 1995, between YPF
Sociedad Anonima and The Chase Manhattan Bank (National
Association) as agent for the lenders under the Subsidiaries
Facility.
<PAGE>
Page 12 of 14
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: June 19, 1995
YPF SOCIEDAD ANONIMA
By: /s/ Cedric Bridger
--------------------------------
Cedric Bridger
Vice President, Finance and
Corporate Development
<PAGE>
Page 13 of 14
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
2. Directors and Executive Officers of YPF. The following table sets
---------------------------------------
forth the name, business address and present principal occupation or employment,
and material occupations, positions, offices or employments for the past five
years of each director and executive officer of YPF. Unless otherwise
indicated, the current business address of each such person is c/o
YPF--Directorio, Avenida Pte. Roque Saenz Pena 777, 1364 Buenos Aires,
Argentina, and each occupation set forth opposite an individual's name refers
to employment with YPF. Each such person is a citizen of the Republic of
Argentina, unless otherwise indicated.
Present Principal Occupation Or Employment and
Current Business Address; Material Positions Held
Name During The Past Five Years and Business Addresses Thereof
---- ---------------------------------------------------------
Nells Leon Director since 1991, President since May, 1995,
Executive Vice President from 1990 to 1995. He
was Vice President of Operations of Sol Petroleo
S.A. from 1987 to 1990.
Mario L. Pineiro Director since 1992. He retired in 1992 as CEO of
Alejandro Llauro e Hijos S.A., where he served for
many years. Mr. Pineiro is also a director of
Transportadora de Gas del Sur S.A.
Miguel Madanes Director since 1993 and Executive Vice President
since May, 1995. Presently involved in the cable
television industry in Argentina and Brazil.
Previously a Director of YPF from 1991 to 1992.
He served as the CEO of Fate S.A. from 1971 until
1991.
Bayless A. Manning Director since 1993. Director of IBJ Schroder
Bank & Trust Company. Currently serves as a
consultant. Partner of Paul, Weiss, Rifkind,
Wharton & Garrison from 1977 until 1990. Mr.
Manning is a citizen of the United States of
America.
Carlos de la Vega Director since 1993. Presently Director of
Institutional Relations and Human Resources of
CIBA-Geigy Argentina. President of the Argentine
Chamber of Commerce from 1988 to 1993. He was
also President of the Ibero-American Association
of Chambers of Commerce from 1990 to 1992.
James R. Lesch Director since 1993. Mr. Lesch is currently
retired. He was Chief Executive Officer (1979-
1986) and Chairman of the Board (1981-1986) of the
Hughes Tool Company and he also served as
Commissioner, State of Texas Department of
Commerce (1988-1992). He previously served as
Director of the American Petroleum Institute.
Mr. Lesch is a citizen of the United States of
America. His business address is P. O. Box 4442,
Houston, Texas 77210.
Ernst Schneider Director since 1993. Chairman of the Board of Leu
Holding and Bank Leu Ltd. and a member of the
Board of Directors of CS Holding Ltd. since 1993.
Previously, he served as Vice Chairman and member
of the Board of Credit Suisse. Mr. Schneider is a
dual citizen of Switzerland and the United States
of America.
<PAGE>
Page 14 of 14
Hector A. Domeniconi Director since 1993. Presently, Managing Director
of DEXCOR, a consulting firm in Argentina. Held
several positions in the Ministry of Economy of
Argentina from 1990 through 1992.
Luis A. Prol Director since 1993. President of YPF Gas S.A.
Held several positions in both Argentine Federal
and Provincial governments, serving as Minister of
the Treasury and Finance of the Province of
Formosa from 1987 to 1989 and as Secretary of
Hydrocarbons and Mining of the Ministry of Economy
from 1991 to 1992.
Angel Cirasino Director since 1993. Assistant Secretary for
Petrochemistry and Mining of the Ministry of
Economy of the Province of Mendoza since 1991. He
was Managing Partner of Motomar Cuyo Marketing
S.R.L. from 1989 to 1991.
Rodolfo Alejandro Diaz Director since 1994. Mr. Diaz is a lawyer and has
private practices in Buenos Aires and Mendoza. He
was the Republic of Argentina's Secretary of Labor
from 1989 until 1991 and Labor Minister from 1991
until 1992.
Eduardo Petazze Vice President, Refining and Marketing and Head of
Restructuring Project since 1993. Previously, he
served as Vice President of Exploration and
Production from 1992 to 1993 and Head of the
Restructuring Project since 1991. Joined YPF in
1983.
Marcelo Guiscardo Vice President, Exploration and Production since
1993. Previously, he was associated with Exxon
Corporation from 1979 to 1993.
Cedric Bridger Vice President, Finance and Corporate Development
since 1992. Before joining YPF, he was Marketing
Manager for CVB Industrias Mecanicas in Brazil
from 1989. He was associated with Hughes Tool
Company from 1964 to 1989.
Carlos A. Olivieri Vice President and General Controller since 1993.
He was Controller and Director of Aerolineas
Argentinas S.A. from 1991 to 1992, a Director of
the Central Bank of Argentina in 1991 and an
accountant with Arthur Andersen & Co. from 1974 to
1986.
Raul H. Oreste Vice President, Human Resources since 1990. He
was previously associated with YPF from 1943 to
1963 and from 1965 to 1977. From 1978 to 1990,
Mr. Oreste was associated with Compania Naviera
Perez Companc.
Juan A. Rodriguez Vice President of Engineering and Technology since
1992. He joined YPF in 1990. From 1968 to 1990,
he was associated with Hughes Tool Company of
Argentina.
Juan J. Garacija Vice President, Purchasing, Contracts and
Environmental Protection since 1992. Consultant
from 1989 to 1990, when he joined YPF. He has
previously served YPF in various capacities from
1941 to 1976 and from 1982 to 1988.
Norberto Noblia Vice President, Legal Affairs since 1989.
Previously, he was associated with the Sindicatura
General de Empresas Publicas from 1975 to 1986.
Martin Paez-Allende Vice President for Institutional Affairs since
September 1994. From 1991 to 1994, he practiced
law. Until 1991 he served as Vice President and
member of the Board of Shell C.A.P.S.A.
(Argentina).
EXHIBIT F
GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT ("Agreement"), dated June 8, 1995, of
YPF Sociedad Anonima, a sociedad anonima (corporation) organized and existing
under the laws of the Republic of Argentina, with principal executive offices
located at Avenida Pte. R. Saenz Pena 777, 1364 Buenos Aires, Argentina
(hereinafter called the "Guarantor"), in connection with (i) that certain
Indenture dated as of April 1, 1978, of Maxus Energy Corporation, a corporation
organized and existing under the laws of the State of Delaware (said corporation
being hereinafter called the "Company" and said Indenture, as heretofore
supplemented, being hereinafter called the "1978 Indenture"); (ii) that certain
Indenture dated as of May 1, 1983, of the Company (as heretofore supplemented,
hereinafter called the "1983 Indenture"); (iii) that certain Indenture dated as
of November 1, 1985, of the Company (hereinafter called the "1985 Indenture");
(iv) that certain Indenture dated as of April 1, 1988, of the Company
(hereinafter called the "1988 Indenture"); (v) that certain Indenture dated as
of November 1, 1990, of the Company (hereinafter called the "1990 Indenture"
and, collectively with the 1978 Indenture, the 1983 Indenture, the 1985
Indenture and the 1988 Indenture, the "Company Indentures"); in favor of each
registered holder from time to time of (a) 8 1/2% Sinking Fund Debentures due
April 1, 2008, issued and outstanding on the date hereof under the 1978
Indenture, (b) 11 1/4% Sinking Fund Debentures due May 1, 2013, issued and
outstanding on the date hereof under the 1983 Indenture, (c) 11 1/2% Sinking
Fund Debentures due November 15, 2015, issued and outstanding on the date hereof
under the 1985 Indenture, (d) Medium Term Notes, Series A due from nine months
to fifteen years from date of issue, issued and outstanding on the date hereof
under the 1988 Indenture, and (e) 9 1/2% Notes due February 15, 2003, 9 3/8%
Notes due November 1, 2003, 9 3/8% Notes due November 1, 2003, Series B, 9 7/8%
Notes due October 15, 2002, Medium Term Notes, Series B due from nine months to
fifteen years from date of issue, and Medium Term Notes, Series C due from nine
months to thirty years from date of issue, issued and outstanding on the date
hereof under the 1990 Indenture (all of the securities identified in subclauses
(a) through (e) above, including any Notes issued in substitution or exchange
therefor under the applicable terms of the relevant Company Indenture,
collectively, being hereinafter called the "Company Indenture Securities," those
identified in subclauses (d) and (e) above, including any Notes issued in
substitution or exchange therefor under the applicable terms of the relevant
Company Indenture, being sometimes hereinafter respectively called the "1988
Company Indenture Securities" and the "1990 Company Indenture Securities" and
collectively the "Consent Securities," and such registered holders of the
Company Indenture Securities, collectively, being hereinafter called the
"Obligees").
RECITALS
It is anticipated that YPF Acquisition Corp., a corporation
organized and existing under the laws of the State of Delaware and wholly-owned
subsidiary of the Guarantor, will be merged (the "Merger") with and into the
Company. As a result of the Merger, the Company would become a wholly-owned
subsidiary of the Guarantor. In connection therewith, the Guarantor has offered
to provide its guaranty in respect of the payment of the principal of and
premium (if any) and interest on the Company Indenture Securities, subject to
the condition (and, in the case of the Consent Securities, to the additional
condition) to effectiveness set forth below in Section 7.
<PAGE>
NOW, THEREFORE, this Agreement
W I T N E S S E T H:
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Guarantor does hereby covenant and agree,
for the benefit of each of the Obligees from time to time, as follows:
1. Guarantee. The Guarantor unconditionally and irrevocably
guarantees the payment of all principal of and premium (if any) and interest on
the Company Indenture Securities (hereinafter collectively called the
"Obligations"), in each case when and as the same shall become due and payable
in accordance with the terms of such Company Indenture Securities and the
respective Company Indenture pursuant to which the same were issued, as in
effect on the date hereof; provided, that if any Company Indenture Security or
any Company Indenture shall be amended at any time when the Guarantor shall not
control the Company in any way which shall or could enlarge, expand, increase or
extend, or could otherwise have an adverse effect on, the Guarantor's
obligations under this Agreement, and such amendment is effected without the
Guarantor's specific prior written consent, this Guaranty shall automatically
terminate, and be of no further force and effect whatsoever, in respect of the
Company Indenture Security so affected or the Company Indenture Securities
issued under such Company Indenture so affected. In the case of any failure of
the Company to make any such payment, the Guarantor hereby unconditionally
agrees to cause any such payment to be made, when and as the same shall become
due, all as if such payment were made or rendered by the Company.
2. Certain Waivers; Unconditionality. The Guarantor waives (to the
extent permitted by applicable law) notice of acceptance of the guaranties set
forth herein, of any action taken or omitted in reliance hereon or of any
default in the payment or in the performance of any Obligations guaranteed
hereby. The Guarantor hereby agrees that its obligations under this Agreement
constitute a present and continuing guarantee of payment and not of
collectibility, and shall be absolute and unconditional.
3. Subrogation. The Guarantor hereby agrees that if it shall make
any payment in respect of any Obligation, it shall, to the extent permitted by
applicable law, be subrogated to the rights of the Obligee to which such payment
was made.
4. Further Waivers; Reinstatement. The Guarantor waives any right
it may have to require any Obligee to proceed against the Company or against
any other party prior to making any claim under this Agreement. The Guarantor
agrees that its guaranties herein contained shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of the Company
or the Guarantor is rescinded or must be otherwise restored by any Obligee,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise.
5. Consent to Jurisdiction and Service of Process. (a) The
Guarantor consents to the non-exclusive jurisdiction of any court of the State
of New York or any United States federal court sitting in the Borough of
Manhattan, New York City, New York, United States, and any appellate court from
any thereof, and waives any immunity from the
2
<PAGE>
jurisdiction of such courts over any suit, action or proceeding that may be
brought in connection with this Agreement. The Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection to any suit, action, or
proceeding that may be brought in connection with this Agreement in such courts
on the grounds of venue, residence or domicile or on the ground that any such
suit, action or proceeding has been brought in an inconvenient forum. The
Guarantor agrees that final judgment in any such suit, action or proceeding
brought in such court shall be conclusive and binding upon the Guarantor and may
be enforced in any court to the jurisdiction of which the Guarantor is subject
by suit upon such judgment; provided that service of process is effected upon
--------
the Guarantor in the manner provided in this Agreement. Notwithstanding the
foregoing, any suit, action or proceeding brought in connection with this
Agreement may be instituted in any competent court in Argentina.
(b) The Guarantor agrees that service of all writs, process and
summonses in any suit, action or proceeding brought in connection with this
Agreement against the Guarantor in any court sitting in the Borough of
Manhattan, New York City may be made upon CT Corporation System at 1633
Broadway, New York, New York 10019, whom the Guarantor irrevocably appoints as
its authorized agent for service of process. The Guarantor represents and
warrants that CT Corporation System has agreed to act as the Guarantors agent
for service of process. The Guarantor agrees that such appointment shall be
irrevocable so long as this Agreement shall remain in effect or until the
irrevocable appointment by the Guarantor of a successor in The City of New York
as its authorized agent for such purpose and the acceptance of such appointment
by such successor. The Guarantor further agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
If CT Corporation System shall cease to be the Guarantors agent for service of
process, the Guarantor shall appoint without delay another such agent and
provide prompt written notice to the Obligees, to the extent known to it, of
such appointment. With respect to any such action in any court of the State of
New York or any United States federal court in the Borough of Manhattan, New
York City, service of process upon CT Corporation System, as the authorized
agent of the Guarantor for service of process, and written notice of such
service to the Guarantor, shall be deemed, in every respect, effective service
of process upon the Guarantor.
(c) Nothing in this paragraph 5 shall affect the right of any
party to serve legal process in any other manner permitted by law or affect the
right of any party to bring any action or proceeding against any other party or
its property in the courts of other jurisdictions.
6. Governing Law. This Agreement is being delivered and is intended
to be performed in the State of New York, and shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
such State without regard to conflicts of law principles.
7. Effectiveness. Subject to the following proviso, this Agreement
shall take effect upon (and concurrently with) the Merger; provided, however,
that this Agreement shall not take effect with respect to and for the benefit of
any Obligee which is the registered
3
<PAGE>
holder of any Consent Securities issued and outstanding under the 1988 Indenture
or the 1990 Indenture, as the case may be, unless and until
(x) the Holders (as defined in such Indenture) of at least 66 2/3
in principal amount of each series of the Securities (as so defined)
outstanding under such Indenture shall have executed and delivered to
the Trustee thereunder its consent (in substantially the form annexed
hereto as Exhibit A-1 or A-2, as the case may be) to the execution and
delivery of an amendment to such Indenture in substantially the form
of the supplemental indenture annexed to such form of consent
(hereinafter called the "Indenture Amendment" with respect to such
Indenture), as contemplated and in accordance with Section 9.02 and
all other applicable provisions of such Indenture;
(y) the Indenture Amendment with respect to such Indenture shall
have become effective in accordance with the applicable terms of such
Indenture; and
(z) the Trustee under such Indenture shall have delivered to the
Guarantor written confirmation to the effect that such Indenture
Amendment has become effective.
8. Successors and Assigns. All covenants and agreements in this
Agreement contained shall bind and inure to the benefit of (a) the Guarantor and
its successors and assigns and (b) the Obligees. This Agreement shall not be
assignable separately from the Company Indenture Securities, in whole or in
part, by any Obligee without the prior written consent of the Guarantor.
9. Notices. All communications provided for hereunder shall be sent
by first class mail and (a) if to any Obligee, addressed to such Obligee in care
of the Trustee under the appropriate Company Indenture, or to such other address
as such Trustee may have designated in writing to the Guarantor and the Company,
(b) if to the Guarantor, at its address set forth in the prefatory paragraph of
this Agreement, Attention: President, or to such other address as the Guarantor
may have designated to the Trustees under the Company Indentures and to the
Company, and (c) if to the Company, addressed to it at: 717 North Harwood
Street, Dallas, Texas 75201, Attention: Secretary, or to such other address as
the Company may have designated in writing to the Trustees under the Company
Indentures and to the Guarantor.
10. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
4
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be
executed by its officer thereunto duly authorized, all as of the day and year
first above written.
YPF SOCIEDAD ANONIMA
By
-----------------------------------------
Name: Cedric Bridger
Title: Vice President, Finance and
Corporate Development
5
EXHIBIT G
YPF GUARANTEE AGREEMENT
dated as of June 8, 1995
between
YPF SOCIEDAD ANONIMA
and
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
<PAGE>
GUARANTEE AGREEMENT dated as of June 8, 1995 between YPF SOCIEDAD ANONIMA,
an Argentine sociedad anonima duly organized and validly existing under the laws
-------- -------
of Argentina ("YPF"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as
---
agent for the lenders from time to time party to the Credit Agreement referred
to below (in such capacity, together with its successors in such capacity, the
"Agent").
-----
Midgard Energy Company, a Delaware corporation (the "Company") and a
-------
Subsidiary of YPF, certain lenders and the Agent are parties to a Credit
Agreement dated as of June 8, 1995 (as modified and supplemented and in effect
from time to time, the "Credit Agreement"), providing, subject to the terms and
----------------
conditions thereof, for loans to be made by said lenders to the Company in an
aggregate principal amount not exceeding $250,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, YPF has agreed to
guarantee the Guaranteed Obligations (as hereinafter defined). Accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
-----------
used herein as defined therein unless otherwise defined herein. In addition,
(a) the following terms shall have the following meanings (and terms defined in
this Section 1 or in other provisions of this Agreement in the singular shall
have the same meanings when used in the plural and vice versa) and (b) each
---- -----
reference to a Subsidiary or Subsidiaries of YPF (other than in Section 4.07
hereof and the definition of "Total Indebtedness" in this Section 1) shall be
deemed to refer to a Subsidiary or Subsidiaries of YPF (as the case may be)
other than Maxus and its Subsidiaries:
"Argentine GAAP" shall mean generally accepted accounting principles
--------------
in Argentina as in effect from time to time.
"Capital Lease Obligations" shall mean, for any Person, all
-------------------------
obligations of such Person to pay rent or other amounts under a lease of
(or other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under Argentine GAAP, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with Argentine GAAP.
<PAGE>
- 2 -
"Indebtedness" shall mean with respect to any Person, (a) any
------------
liability of such Person (i) for money borrowed, or under any reimbursement
obligation relating to a letter of credit, (ii) evidenced by a bond, note,
debenture or similar instrument (including a purchase money obligation)
given in connection with the acquisition of any businesses, properties or
assets of any kind (other than a trade payable or a liability arising in
the ordinary course of business, so long as such trade payable or liability
is payable within 90 days of the date the respective goods are delivered or
the respective services are rendered), or (iii) for Capital Lease
Obligations; (b) all Redeemable Stock issued by such Person (the amount of
Indebtedness being represented by any involuntary liquidation preference
plus accrued and unpaid dividends); (c) any liability of others described
in the preceding clause (a) that such Person has guaranteed; and (d)
(without duplication) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to
in clauses (a), (b) and (c) above. For purposes of determining any
particular amount of Indebtedness under this definition, Guarantees of (or
obligations with respect to letters of credit supporting) Indebtedness
otherwise included in the determination of such amount shall not also be
included.
"Maxus Public Debt Documents" shall mean, collectively, (a) the
---------------------------
Indenture dated as of April 1, 1978 between Diamond Shamrock Corporation
(as predecessor in interest to Maxus) and Mellon Bank, N.A., as trustee, as
amended by that certain First Supplemental Indenture, dated as of
January 26, 1984, among Diamond Shamrock Corporation, Diamond Shamrock
Chemicals Company and Mellon Bank, N.A., as trustee, that certain Agreement
of Resignation/Appointment and Acceptance, dated as of February 27, 1991,
among Mellon Bank, N.A., Maxus and Security Pacific National Trust Company
(New York), and that certain Tri-Party Agreement dated January 24, 1993,
among Security Pacific National Trust Company (New York), Maxus and
Chemical Bank, trustee, and the Debentures (as defined therein) issued
thereunder, (b) the Indenture dated as of May 1, 1983 between Diamond
Shamrock Corporation (as predecessor in interest to Maxus) and Mellon Bank,
N.A., as trustee, as amended by that certain First Supplemental Indenture,
dated as of January 26, 1984, among Diamond Shamrock Corporation, Diamond
Shamrock Chemicals Company, and Mellon Bank, N.A., under which NationsBank,
N.A., currently serves as successor trustee, and the Securities (as defined
therein) issued thereunder, (c) the Indenture dated as of November 1, 1985
between Maxus Diamond Shamrock Corporation (as predecessor in interest to
Maxus) and Mellon Bank, N.A., as trustee,
<PAGE>
- 3 -
under which NationsBank, N.A., currently serves as successor trustee, as
trustee, and the Securities (as defined therein) issued thereunder, (d) the
Indenture dated as of April 1, 1988 between Maxus and Chemical Bank, as
trustee, and the Securities (as defined therein) issued thereunder, and (e)
the Indenture dated as of November 1, 1990 between Maxus and Chemical Bank,
as trustee and the Securities (as defined therein) issued thereunder, in
each case, as such agreements and instruments may be hereafter modified and
supplemented and in effect from time to time.
"Redeemable Stock" shall mean any class or series of capital stock of
----------------
any Person that by its terms or otherwise is required to be redeemed prior
to the final maturity of the Loans, or is redeemable at the option of the
holder thereof at any time prior to the final maturity of the Loans.
"Significant Subsidiary" shall mean a Subsidiary of YPF which is
----------------------
material to the condition, financial or otherwise, or to the earnings,
operations, business affairs or business prospects of YPF and its
Subsidiaries taken as a whole.
"Subsidiary" shall mean, with respect to any Person, any corporation
----------
or other business entity of which such Person owns or controls (either
directly or through another or other Subsidiaries) more than 50% of the
issued share capital or other ownership interest, in each case having
ordinary voting power to elect directors, managers or trustees of such
corporation or other business entity (whether or not capital stock or other
ownership interest of any other class or classes shall or might have voting
power upon the occurrence of any contingency).
"Tangible Net Worth" shall mean, as at any date, the amount for YPF
------------------
(determined in accordance with Argentine GAAP) of (a) shareholders' equity
as at such date minus (b) the sum of the following as at such date: the
-----
cost of treasury shares and the book value of all assets that should be
classified as intangibles (without duplication of deductions in respect of
items already deducted in arriving at surplus and retained earnings) but in
any event including goodwill, minority interests, research and development
costs, trademarks, trade names, copyrights, patents and franchises,
unamortized debt discount and expense, all reserves for losses,
contingencies, or other liabilities (but only to the extent such reserves
were not deducted in arriving at shareholders' equity) and any write-up in
the book value of assets resulting from a revaluation thereof
<PAGE>
- 4 -
subsequent to December 31, 1994 other than as a result of the Merger.
"Total Capitalization" shall mean as at any date (a) Total
--------------------
Indebtedness as at such date plus (b) shareholders' equity of YPF as at
such date.
"Total Indebtedness" shall mean as at any date all Indebtedness of YPF
------------------
and its Subsidiaries as of such date, determined on a consolidated basis in
accordance with Argentine GAAP.
"YPF Material Adverse Effect" shall mean the occurrence of any event
---------------------------
or condition with respect to YPF which has a material adverse effect on
(a) the financial condition, results of operations or the shareholders'
equity of YPF and its Subsidiaries taken as a whole, (b) the ability of YPF
to perform any of its payment or any of its other material obligations
under this Agreement, (c) the validity or enforceability of any of such
obligations, or (d) the ability of the Lenders or the Agent to enforce any
of their respective rights and remedies against YPF under this Agreement.
Section 2. The Guarantee.
-------------
2.01 The Guarantee. YPF hereby guarantees to each Lender and the
-------------
Agent and their respective successors and assigns the prompt payment in full
when due (whether at stated maturity, by acceleration or otherwise) of the
principal of and interest on the Loans made by the Lenders to, and, without
duplication, the Notes held by each Lender of, the Company and all other amounts
from time to time owing to the Lenders or the Agent by the Company under the
Credit Agreement and under the Notes, in each case strictly in accordance with
the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). YPF hereby further agrees that if the Company shall
----------------------
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, YPF will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
2.02 Obligations Unconditional. The obligations of YPF under
-------------------------
Section 2.01 hereof are, to the fullest extent permitted by law, absolute and
unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of the
<PAGE>
- 5 -
Credit Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or any security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 2.02 that the obligations of YPF hereunder shall be absolute and
unconditional under any and all circumstances (other than full and final payment
of the Guaranteed Obligations). Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of YPF hereunder which shall remain absolute and unconditional as
described above and (to the fullest extent permitted by law) YPF hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to any and all of the following:
(i) at any time or from time to time, without notice to YPF, the time
for any performance of or compliance with any of the Guaranteed Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under the Credit
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Agent or any Lender or Lenders as security for any of the Guaranteed
Obligations shall fail to be perfected.
YPF hereby expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Agent or any Lender
exhaust any right, power or remedy or proceed against the Company under the
Credit Agreement or the Notes or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee
<PAGE>
- 6 -
of, or security for, any of the Guaranteed Obligations. YPF hereby also
irrevocably waives any right contemplated by Articles 480 (second paragraph),
481 and 482 of the Argentine Commercial Code as well as any rights and powers
contemplated by Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020, 2021, 2022,
2023, 2025, 2026, 2029, 2043, 2044, 2045, 2046, 2047, 2049 and 2050 of the
Argentine Civil Code.
2.03 Reinstatement. The obligations of YPF under this Section 2
-------------
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Company in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and YPF agrees that it will indemnify the Agent and
each Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
2.04 Subrogation. YPF hereby waives all rights of subrogation or
-----------
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Federal Bankruptcy Code) or
otherwise by reason of any payment by it pursuant to the provisions of this
Section 2 and further agrees with the Company for the benefit of each of its
creditors (including, without limitation, each Lender and the Agent) that any
such payment by it shall constitute a contribution of capital by YPF to the
Company (or an investment in the equity capital of the Company by YPF).
2.05 Remedies. YPF agrees that, as between YPF and the Lenders, to
--------
the fullest extent permitted by law, the obligations of the Company under the
Credit Agreement and the Notes may be declared to be forthwith due and payable
as provided in Section 9 of the Credit Agreement (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 9) for purposes of Section 2.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Company and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Company) shall forthwith become due and payable by YPF for purposes of
said Section 2.01.
<PAGE>
- 7 -
2.06 Instrument for the Payment of Money. To the fullest extent
-----------------------------------
permitted by law, YPF hereby (a) acknowledges that the guarantee in this
Section 2 constitutes an instrument for the payment of money, and (b) consents
and agrees that any Lender or the Agent, at its sole option, in the event of a
dispute by YPF in the payment of any moneys due hereunder, shall have the right
to bring motion-action under New York CPLR Section 3213.
2.07 Continuing Guarantee. The guarantee in this Section 2 is a
--------------------
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.08 Taxes. YPF covenants and agrees that:
-----
(a) All payments on account of the Guaranteed Obligations by YPF to
the Agent and the Lenders, including, without limitation, amounts payable under
paragraph (b) of this Section 2.08, shall be made in Dollars, free and clear of
and without reduction by reason of any and all present and future income, stamp,
excise, asset, value added and other taxes and levies, imposts, deductions,
charges, compulsory loans and withholdings whatsoever imposed, assessed, levied
or collected by Argentina or any political subdivision or taxing authority
thereof or therein, together with interest thereon and penalties with respect
thereto, if any, on or in respect of this Agreement, the Guaranteed Obligations,
the registration, notarization or other formalization of any thereof, and any
payments of principal, interest, charges, fees or other amounts made on, under
or in respect thereof (hereinafter called "Argentine Taxes"), all of which will
---------------
be paid by YPF, for its own account, prior to the date on which penalties
attached thereto.
(b) YPF will indemnify the Agent and the Lenders against, and
reimburse the Agent and the Lenders on demand for, any Argentine Taxes and any
loss, liability, claim, or expense including interest, penalties, and legal fees
which the Agent or the Lenders may incur at any time arising out of or in
connection with any failure of YPF to make any payments of Argentine Taxes when
due.
(c) To the extent that YPF is required by applicable law, decree or
regulation to deduct or withhold Argentine Taxes from any amounts payable on,
under or in respect of this Agreement, or the Guaranteed Obligations, YPF shall
pay the Agent and the Lenders in Dollars such additional amounts as may be
required, after deduction or withholding of Argentine Taxes, to enable the Agent
and the Lenders to receive from YPF an amount equal to the amount stated to be
payable in respect of this Agreement or the Guaranteed Obligations.
<PAGE>
- 8 -
(d) YPF shall furnish to the Agent and the Lenders original tax
receipts in respect of any withholding of Argentine Taxes required under this
Section 2.08 within 30 days after the date of each payment of interest which is
subject to any Argentine Taxes, and YPF shall promptly furnish to the Agent and
the Lenders any other information, documents and receipts that the Agent and the
Lenders may, in their sole discretion from time to time, require to establish to
their satisfaction that full and timely payment has been made of all Argentine
Taxes required to be paid under this Section 2.08.
(e) YPF shall pay all present and future Argentine Taxes, including
but not limited to stamp taxes, imposts, contributions, charges, deductions,
withholdings, court taxes, duties and fees which are imposed, assessed, levied
or collected in connection with the execution, delivery, registration,
notarization, enforcement or any other act related thereto, of any of the Basic
Documents and any documents related thereto, and shall, upon notice from the
Agent or any Lender, reimburse the Agent or any Lender or its assigns for any
such taxes, imposts, contributions, charges, deductions, duties and fees.
Section 3. Representations and Warranties. YPF represents and
------------------------------
warrants to the Lenders and the Agent that:
3.01 Organization, Standing, etc. YPF is a sociedad anonima
---------------------------- -------- -------
(corporation) duly organized and existing and in good standing under the laws of
Argentina, has full corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into this Agreement and to carry out the terms hereof.
3.02 Qualification. YPF and each of its Subsidiaries is duly
-------------
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction (other than the jurisdiction of its incorporation
or organization) in which the nature of its activities or the character of the
properties it owns or leases makes such qualification necessary and in which the
failure so to qualify would have a YPF Material Adverse Effect.
3.03 Financial Statements. The consolidated balance sheets of YPF
--------------------
and its Subsidiaries as at December 31, 1994, 1993 and 1992 and the related
consolidated statements of income, cash flows and changes in financial position
of YPF and its Subsidiaries for each of the fiscal years then ended, together
with related notes, such statements being accompanied by reports thereon of
Pistrelli, Diaz y Associados (associated with Arthur Andersen & Co.),
independent public accountants have been delivered to the Lenders. In addition,
the consolidated balance
<PAGE>
- 9 -
sheet of YPF and its Subsidiaries as at March 31, 1995 and the related
consolidated statements of income, cash flows and changes in financial position
of YPF and its Subsidiaries for the fiscal quarter then ended have been
delivered to the Lenders. All such financial statements (including any related
schedules or notes) have been prepared in accordance with Argentine GAAP,
present fairly the consolidated financial position of YPF and its Subsidiaries
as at the respective dates of such consolidated balance sheets and the
consolidated results of operations, cash flows and changes in financial position
of YPF and its Subsidiaries for the fiscal periods ended on said dates (subject
to normal year end audit adjustments in the case of said financial statements at
March 31, 1995). Since December 31, 1994 there have been no changes in the
business, financial condition, operations, assets or liabilities of YPF and its
Subsidiaries from that set forth in the consolidated balance sheet as of that
date, other than changes in the ordinary course of business which have not,
either individually or in the aggregate, had a YPF Material Adverse Effect.
3.04 Litigation, etc. Except as described on Schedule I hereto,
----------------
there is no action, suit, proceeding or investigation at law or in equity by or
before any court, governmental body, agency, commission or other tribunal now
pending or, to the best of YPF's knowledge after due inquiry, threatened against
or affecting YPF or its Subsidiaries or its or its Subsidiaries' property or
rights (a) which questions or would question the validity of this Agreement or
(b) as to which there is a significant possibility of an adverse determination
and which if adversely determined (i) may have a YPF Material Adverse Effect or
(ii) could impair the ability of YPF to perform its obligations hereunder.
3.05 Governmental Consents. No consent, approval or authorization
---------------------
of, or declaration or filing with, any governmental authority is required for
the valid execution, delivery and performance by YPF of this Agreement.
3.06 Taxes. Under the laws of Argentina, the execution, delivery and
-----
performance by YPF of its obligations hereunder and all payments of the
Guaranteed Obligations and other amounts hereunder are exempt from all income or
withholding taxes, stamp taxes, charges or contributions of Argentina or any
political subdivision or taxing authority thereof, irrespective of the fact that
the Agent or any of the Lenders may have a representative office or subsidiary
in Argentina; provided, however, that under current law payments of interest by
-------- -------
YPF under this Agreement would be subject to a withholding tax at the rate of
12% to the extent any such interest payments were deemed to be subject to the
income tax contemplated under Argentine law.
<PAGE>
- 10 -
3.07 Authorization. YPF has all necessary corporate power, authority
-------------
and legal right to execute, deliver and perform its obligations hereunder. This
Agreement has been duly authorized by all requisite corporate and other actions
and duly executed and delivered by an authorized officer of YPF, and is the
valid obligation of YPF, legally binding upon and enforceable against YPF in
accordance with its terms, except as such enforceability may be limited by
(a) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.08 No Conflicts. The execution, delivery and performance by YPF of
------------
this Agreement do not and will not violate the provisions of any applicable law
or regulation of Argentina (or of any political subdivision thereof) presently
in effect or any order of any court, regulatory body or arbitral tribunal or of
the estatutos of YPF, other than violations that individually or collectively
---------
could not have a YPF Material Adverse Effect, and do not and will not constitute
a breach or default or require any consent under, or result in the creation of
any Lien on any of the present or future revenues and properties of YPF or any
of its Subsidiaries pursuant to, any agreement, instrument or document to which
YPF or any of its Subsidiaries is a party or by which YPF or any of its or its
Subsidiaries' respective properties or revenues may be bound or affected except
to the extent that such breaches, defaults or Liens individually or collectively
could not have a YPF Material Adverse Effect.
3.09 Commercial Obligations. YPF is subject to civil and commercial
----------------------
law with respect to its obligations hereunder, and the execution, delivery and
performance by YPF of its obligations under this Agreement, constitute private
and commercial acts; and neither YPF nor any of its properties or revenues is
entitled to any right of immunity from suit, court jurisdiction, attachment
prior to judgment, attachment in aid of execution of a judgment, set-off,
execution of a judgment or from any other legal process with respect to such
obligations.
3.10 Enforceability. This Agreement is in proper legal form under
--------------
the laws of Argentina for the enforcement thereof against YPF in the courts of
Argentina and it is not necessary, to ensure the enforceability or admissibility
in evidence of this Agreement, that the same be filed or recorded with any court
or other authority in Argentina except that if this Agreement is enforced before
the courts of the city of Buenos Aires, the payment of a court tax of 3% on the
amount of the claim is required; and except further that an official
<PAGE>
- 11 -
Spanish translation of this Agreement is required to bring an action thereon in
the courts of Argentina.
3.11 Ranking. YPF's obligations under Section 2 hereof are direct
-------
and unconditional general obligations of YPF and will rank in right of payment
at least pari passu with all other Indebtedness of YPF, except to the extent any
---- -----
such other Indebtedness is accorded preference by reason of collateral security
for such other Indebtedness.
3.12 Environmental Matters. YPF has obtained all permits, licenses
---------------------
and other authorizations which are required under all environmental laws and
regulations, except to the extent failure to have any such permit, license or
authorization would not have a YPF Material Adverse Effect. YPF is in
compliance with the terms and conditions of all such permits, licenses and
authorizations and of all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable environmental law or in any regulation or code (as
such laws, regulations or codes are currently being interpreted or enforced) or
any plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply would not have a YPF Material Adverse Effect.
3.13 Exploration, Permits, Etc. All oil and gas exploration permits
--------------------------
and production and transportation concessions held by YPF are in effect and YPF
is not in breach of any of its obligations thereunder or in connection therewith
that may potentially cause the forfeiture of its rights under said permits and
concessions or impair or otherwise affect the exercise of its rights thereunder
except to the extent that any such breach would not cause a YPF Material Adverse
Effect.
3.14 True and Complete Disclosure. The information, reports
----------------------------
(including, without limitation, hydrocarbon engineering reports), financial
statements, exhibits and schedules furnished in writing by or on behalf of YPF
to the Agent or any Lender in connection with the negotiation, preparation or
delivery of this Agreement and the other Basic Documents or included herein or
therein or delivered pursuant hereto, when taken as a whole and when considered
with respect to the Company and its Subsidiaries, to the actual knowledge of
YPF, do not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. YPF has not
delivered any information to the Agent or any Lender relating to general
economic conditions in South America, and in particular, Argentina. All written
information furnished after
<PAGE>
- 12 -
the date hereof by or on behalf of YPF to the Agent or the Lenders in connection
with this Agreement and the other Basic Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on reasonable estimates,
on the date as of which such information is stated or certified. There is no
fact known to YPF that could reasonably be expected to have a YPF Material
Adverse Effect, a Closing Date Material Adverse Effect or a Company Material
Adverse Effect that has not been disclosed herein or in the other Basic
Documents (including in each case the exhibits and schedules thereto) or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders in connection with the transactions contem-
plated hereby or thereby.
Section 4. Covenants. YPF agrees that, until the payment and
---------
satisfaction in full of the Guaranteed Obligations:
4.01 Maintenance of Existence. YPF shall, and shall cause each of
------------------------
its Subsidiaries to, (a) maintain in effect its corporate existence and all
registrations necessary therefor and (b) take all reasonable actions to maintain
all rights, privileges, titles to property, franchises and the like necessary or
desirable in the normal conduct of its business, activities or operations;
provided, however, that this covenant shall not prohibit any transaction by YPF
- -------- -------
or any of its Subsidiaries otherwise permitted under Section 4.16 hereof and
this covenant shall not require YPF to maintain any such right, privilege, title
to property or franchise or to preserve the corporate existence of any
Subsidiary, if the Board of Directors of YPF shall determine that (i) the
maintenance or preservation thereof is no longer desirable in the conduct of the
business of YPF and its Subsidiaries taken as a whole and (ii) the loss thereof
is not, and will not be, adverse in any material respect to the Lenders.
4.02 Maintenance of Properties. YPF shall cause all tangible
-------------------------
Properties used or useful in the conduct of its business or the business of any
Subsidiary of YPF to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements and improvements thereof, all
as in the judgment of YPF may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing shall prevent YPF from discontinuing the
- -------- -------
operation or maintenance of any of such Properties if such discontinuance is, as
determined by the Board of Directors of YPF in good faith, desirable in the
conduct of the business of YPF and its
<PAGE>
- 13 -
Subsidiaries taken as a whole and not adverse in any material respect to the
Lenders.
4.03 Payments of Taxes and Other Claims. YPF shall pay or discharge
----------------------------------
or cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments, royalties and governmental charges levied or imposed
upon YPF or any of its Subsidiaries, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
Property of YPF or any of its Subsidiaries; provided, however, that YPF will not
-------- -------
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claims whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
4.04 Maintenance of Insurance. YPF shall, and shall cause each of
------------------------
its Subsidiaries to, keep at all times all of their Properties which are of an
insurable nature insured against loss or damage with insurers believed by YPF to
be responsible to the extent that Property of similar characteristics is usually
so insured by corporations similarly situated and owing like Properties in
accordance with good business practice.
4.05 Negative Pledge. YPF shall not, and shall not permit any of its
---------------
Subsidiaries to, create or suffer to exist any Lien on any of their present or
future Property, in each case to secure Indebtedness, unless all of the
Guaranteed Obligations are equally and ratably secured, except for:
(i) any Lien on any Property existing on the date hereof;
(ii) any Lien on any asset securing Indebtedness incurred or assumed
solely for the purpose of financing all or any part of the cost of
acquiring or constructing such asset;
(iii) any Lien on any Property existing thereon at the time of
acquisition of such Property and not created in connection with such
acquisition;
(iv) any Lien on any Property owned by a corporation or other Person,
which Lien exists at the time of the acquisition of such corporation or
other Person by YPF or any of its Subsidiaries and which Lien is not
created in connection with such acquisition;
(v) any Lien on any Property securing an extension, renewal or
refunding of Indebtedness secured by a Lien
<PAGE>
- 14 -
referred to in (i), (ii), (iii) or (iv) above, provided that such new Lien
is limited to the Property which was subject to the prior Lien immediately
before such extension, renewal or refunding, and provided that the
principal amount of Indebtedness secured by the prior Lien immediately
before such extension, renewal or refunding is not increased;
(vi) any Lien in the form of a tax or other statutory lien, provided
that any such lien shall be discharged within 30 days after the date it is
created or arises (unless contested in good faith by YPF or a Subsidiary,
in which case it shall be discharged within thirty (30) days after final
adjudication); or
(vii) any other Lien on assets of YPF or any Subsidiary, provided that
the assets securing such Indebtedness together with all other Property of
YPF securing any Indebtedness under this subparagraph (vii) do not exceed
15% of the total assets of YPF; provided, that, for purposes of this
-------- ----
clause (vii), (A) the value of such assets, Property and total assets shall
be determined by reference to the most recent audited balance sheet of YPF
prepared in accordance with Argentine GAAP, and (B) the value of the assets
and Property securing Indebtedness shall not exceed the outstanding
principal amount of such Indebtedness.
Notwithstanding the foregoing, YPF shall not create or suffer to exist any Lien
on any capital stock of Maxus now owned or hereafter acquired by YPF.
4.06 Limitations on Sale and Leaseback Transactions. YPF shall not
----------------------------------------------
enter into, renew or extend, or permit any Subsidiary to enter into, renew or
extend, any transaction or series of related transactions pursuant to which YPF
or any such Subsidiary sells or transfers any Property in connection with the
leasing, or the release against installment payments, or as part of an
arrangement involving the leasing or resale against installment payments, of
such Property to the seller or transferor ("Sale and Leaseback Transaction")
------------------------------
except (i) a Sale and Leaseback Transaction that, had such Sale and Leaseback
Transaction been structured as a mortgage loan rather than as a Sale and
Leaseback Transaction, YPF would have been permitted to enter into such
transaction pursuant to Section 4.05 hereof and (ii) a Sale and Leaseback
Transaction entered into prior to April 5, 1995.
4.07 Financial Statements; Other Information.
---------------------------------------
(a) YPF will furnish or cause to be furnished to the Agent (with a
copy for each Lender) (i) annual reports in
<PAGE>
- 15 -
English, which will include a report of YPF's statutory audit committee and
annual audited financial statements prepared in conformity with Argentine GAAP,
together with a reconciliation to generally accepted accounting principles as in
effect in the United States of America of net income and shareholders' equity
and (ii) quarterly reports in English which will include unaudited interim
financial information prepared in conformity with Argentine GAAP. YPF will
furnish to the Agent (with a copy for each Lender), at the time it furnishes
each set of financial information, a certificate of the chief financial officer
of YPF to the effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in reasonable detail
and describing the action that YPF has taken or proposes to take with respect
thereto). YPF also will furnish or cause to be furnished to the Agent (with a
copy for each Lender) in English (i) all notices of shareholders' meetings and
other reports and communications that are made generally available to YPF's
shareholders and (ii) registration statements and regular and periodic reports
which YPF shall have filed with the Commission, any United States securities
exchange, the Argentine Securities Commission ("Comision Nacional de Valores"),
----------------------------
the Buenos Aires Stock Exchange or any other stock exchange in Argentina.
Notwithstanding the provisions of Section 5.12, YPF shall have no obligation to
provide an English translation of any such report filed with the Argentine
Securities Commission, the Buenos Aires Stock Exchange or any other stock
exchange in Argentina if a report in English providing substantially the same
information (with no material differences) has been furnished to the Agent in
accordance with this Section 4.07. From time to time YPF shall furnish to the
Agent such other information regarding the financial condition, operations,
business or prospects of YPF or any of its Subsidiaries as the Agent or any
Lender (through the Agent) may reasonably request.
(b) Promptly after a senior officer of YPF becomes aware that any
Default has occurred (other than a Default that has ceased to exist), YPF will
deliver to the Agent notice of such Default describing the same in reasonable
detail and, together with such notice or as soon thereafter as possible, a
description of the action that YPF has taken or proposes to take with respect
thereto.
4.08 Compliance with Laws and Other Agreements. YPF shall, and shall
-----------------------------------------
cause each of its Subsidiaries to, comply with all applicable laws, rules,
regulations, orders and directions of any governmental or regulatory authority
or agency having jurisdiction over it or its business and all of the covenants
and obligations contained in any agreements to which YPF or any Subsidiary is a
party, except where the failure to so comply would not have a YPF Material
Adverse Effect.
<PAGE>
- 16 -
4.09 Maintenance of Books and Records. YPF shall, and shall cause
--------------------------------
each of its Argentine Subsidiaries to, maintain books, accounts and records in
accordance with Argentine GAAP.
4.10 Inspection. YPF shall permit representatives of the Agent or
----------
any Lender, during normal business hours and at the expense of the Agent or such
Lender (as the case may be), to examine, copy and make extracts from its books
and records, to inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by the Agent
or such Lender.
4.11 Further Assurances. YPF will, at its own cost and expense,
------------------
execute and deliver to the Agent (with a copy for each Lender, if requested by
the Agent) all such documents, instruments and agreements and do all such other
acts and things as may be reasonably required, in the opinion of the Agent or
the Majority Lenders (acting through the Agent), to enable the Lenders to
exercise and enforce their rights under the Basic Documents.
4.12 Ranking. YPF will ensure that at all times its obligations
-------
under Section 2 hereof rank at least pari passu (whether in priority of payment
---- -----
or otherwise) with all of its other Indebtedness, except to the extent any such
other Indebtedness is accorded preference by reason of collateral security for
such other Indebtedness.
4.13 Litigation. YPF will promptly give to the Agent notice of all
----------
legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting YPF or any of its
Subsidiaries, except proceedings which, if adversely determined, would not have
a YPF Material Adverse Effect.
4.14 Total Indebtedness. YPF shall not permit at any time Total
------------------
Indebtedness to exceed 45% of Total Capitalization.
4.15 Tangible Net Worth. YPF shall not permit at any time Tangible
------------------
Net Worth (expressed in Argentine pesos) to be less than 3,980,000,000 Argentine
pesos which is equal to 80% of Tangible Net Worth as at December 31, 1994.
4.16 Merger, Etc. YPF shall not, and shall not permit any of its
------------
Significant Subsidiaries to, merge or consolidate with or into, or convey,
transfer or lease their respective Properties substantially as an entirety to,
any Person, unless immediately after giving effect to such transaction, (a) no
Default shall have occurred and be continuing, and (b) with respect to a merger
<PAGE>
- 17 -
or consolidation of YPF with or into any Person, (i) any corporation formed by
any merger or consolidation with YPF or the Person which acquires by conveyance
or transfer, or which leases, the Properties of YPF substantially as an entirety
("YPF's Successor Corporation") shall be an Argentine corporation and shall
---------------------------
expressly assume the due and punctual payment and performance of all of the
obligations and covenants of YPF hereunder.
4.17 Maintenance of Concessions, Permits, Leases and Licenses. YPF
--------------------------------------------------------
shall maintain in full force and effect and good standing (and renew or extend
when appropriate) all its rights under any existing or future oil and gas
exploration permits and production and transportation concessions, leases or
licenses and to observe and perform all conditions or restrictions contained or
arising thereunder except to the extent any such failure (i) to maintain,
observe or perform would not have a YPF Material Adverse Effect or (ii) arises
from the scheduled expiration thereof in accordance with its terms.
4.18 Modifications of Certain Documents. YPF shall not consent to
----------------------------------
any modification, supplement or waiver of any provision of (a) any document or
agreement in respect of its obligations under Section 5.15 of the Merger
Agreement and (b) its Guarantee of (i) the Indebtedness of Maxus under the Maxus
Public Debt Documents or (ii) obligations of Maxus in respect of Maxus'
$9.75 Cumulative Convertible Preferred Stock, in each case, as such agreements
or documents (as the case may be) are in effect on the date hereof, without in
each case, the prior consent of the Majority Lenders (or the Agent acting with
the consent of the Majority Lenders).
4.19 Ownership of Maxus Shares and the Company. At all times from
-----------------------------------------
and after the consummation of the Merger, YPF shall (a) own all of the issued
and outstanding shares of common stock of Maxus other than any such shares
issued after the consummation of the Merger pursuant to Equity Rights issued by
Maxus prior to the consummation of the Merger and (b) cause the Company to be a
Wholly Owned Subsidiary of YPF except to the extent that it ceases to be such a
Wholly Owned Subsidiary as a result of such issuance of such shares by Maxus.
Section 5. Miscellaneous.
-------------
5.01 No Waiver. No failure on the part of the Agent or any Lender to
---------
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Agent or any Lender of any right,
power or remedy hereunder preclude any other or further exercise
<PAGE>
- 18 -
thereof or the exercise of any other right, power or remedy. The remedies
herein are cumulative and are not exclusive of any remedies provided by law.
5.02 Notices. All notices, requests, consents and demands hereunder
-------
shall be in writing and telecopied or delivered to the intended recipient at the
"Address for Notices" specified beneath its name on the signature pages hereof
or, as to either party, at such other address as shall be designated by such
party in a notice to the other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
5.03 Expenses. YPF agrees to reimburse each of the Lenders and the
--------
Agent for all reasonable out of pocket costs and expenses of the Lenders and the
Agent (including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (a) any Event of Default and any enforcement or
collection proceeding resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (i) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (ii) judicial
or regulatory proceedings and (iii) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (b) the enforcement of this
Section 5.03.
5.04 Amendments, Etc. The terms of this Agreement may be waived,
----------------
altered or amended only by an instrument in writing duly executed by YPF and the
Agent (with the prior consent of the Lenders or the Majority Lenders, as the
case may be, as specified in Section 10.09 of the Credit Agreement). Each such
amendment or waiver shall be binding upon the Agent and each Lender, each holder
of any of the Guaranteed Obligations and YPF.
5.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of YPF, the
Agent, the Lenders and each holder of any of the Guaranteed Obligations
(provided, however, that except as provided in Section 4.16 hereof, YPF shall
--------
not assign or transfer any of its rights or obligations hereunder without the
prior consent of the Agent (with the consent of the Lenders as specified in
Section 10.09 of the Credit Agreement)).
5.06 Captions. The captions and section headings appearing herein
--------
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
<PAGE>
- 19 -
5.07 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.08 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the law of the State of New York.
5.09 Jurisdiction, Venue, Immunity and Service of Process.
----------------------------------------------------
(a) YPF hereby consents to the non-exclusive jurisdiction of any
court of the State of New York or any United States federal court sitting in the
Borough of Manhattan, New York City, New York, United States, and any appellate
court from any thereof, and waives any immunity from the jurisdiction of such
courts over any suit, action or proceeding that may be brought in connection
with any of this Agreement and the transactions contemplated hereby. YPF hereby
irrevocably waives, to the fullest extent permitted by law, any objection to any
suit, action or proceeding that may be brought in connection with this Agreement
and the transactions contemplated hereby in such courts whether on grounds of
venue, residence or domicile or on the ground that any such suit, action or
proceeding has been brought in an inconvenient forum. YPF agrees that final
judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon YPF and may be enforced in any court to the
jurisdiction of which YPF is subject by a suit upon such judgment, provided that
--------
service of process is effected upon YPF in the manner provided in this Section
5.09. Notwithstanding the foregoing, any suit, action or proceeding brought in
connection with any of this Agreement and the transactions contemplated hereby
may be instituted in any competent court in Argentina.
(b) To the extent that YPF has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process, YPF hereby waives such
immunity and agrees not to assert, by way of motion, as a defense or otherwise,
in any suit, action or proceeding the defense of sovereign immunity or any claim
that it is not personally subject to the jurisdiction of the above-named courts
by reason of sovereign immunity or otherwise, or that it is immune from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property or from attachment either prior to judgment or in aid of
execution by reason of sovereign immunity.
<PAGE>
- 20 -
(c) YPF hereby agrees that service of all writs, process and
summonses in any such suit, action or proceeding brought in the State of New
York may be made upon it by service upon CT Corporation System (the "Process
-------
Agent"), presently having an office at 1633 Broadway, New York, New York 10019,
- -----
U.S.A., and YPF hereby irrevocably appoints the Process Agent its true and
lawful agent and attorney-in-fact in its name, place and stead to accept such
service of any and all such writs, process and summonses, and agrees that the
failure of the Process Agent to give any notice of any such service of process
to YPF shall not impair or affect the validity of such service or of any
judgment based thereon. If for any reason CT Corporation System ceases to act,
or to be able to act, as a Process Agent as contemplated hereby, YPF will
appoint a substitute therefor and agrees to maintain at all times an agent in
the United States of America to act as its Process Agent. YPF hereby further
irrevocably consents to the service of process in any suit, action or proceeding
in said courts by the mailing thereof by the Agent or the Lender or any holder
of any Note by registered or certified mail, postage prepaid, to YPF at the
address given below its name on the signature pages hereto.
(d) Nothing herein shall in any way be deemed to limit the ability of
the Agent or any Lender to serve any such writs, process or summonses in any
other manner permitted by applicable law or to obtain jurisdiction over YPF in
such other jurisdictions, and in such manner, as may be permitted by applicable
law.
5.10 Special Waiver. To the extent that YPF may be entitled to the
--------------
benefit of any provision of law requiring the Agent or the Lender in any suit,
action or proceeding brought in a court of Argentina or other jurisdiction
arising out of or in connection with any of this Agreement and the transactions
contemplated hereby, to post security for litigation costs or otherwise post a
performance bond or guaranty ("cautio judicatum solvi" or "excepcion de
---------------------- ------------
arraigo"), or to take any similar action, YPF hereby irrevocably waives such
- -------
benefit, in each case to the fullest extent now or hereafter permitted under the
laws of Argentina or, as the case may be, such other jurisdiction.
5.11 Judgment Currency. (a) This Agreement is part of an
-----------------
international loan transaction in which the specification of Dollars and payment
in New York City is of the essence, and the obligations of YPF under this
Agreement to make payment to (or for the account of) the Agent or a Lender in
Dollars shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any other currency or in another
place except to the extent that such tender or recovery results in the effective
receipt by the Agent or such
<PAGE>
- 21 -
Lender in New York City of the full amount of Dollars payable to the Agent or
such Lender hereunder. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due under this Agreement to the Agent, any Lender
or any indemnified person in Dollars into another currency the rate of exchange
used shall be that at which in accordance with normal banking procedures such
party could purchase Dollars with such other currency in New York City on the
business day in New York next preceding the day on which final judgment is
rendered. The obligation of YPF in respect of any sum payable under this
Agreement by it to the Agent, any Lender or any indemnified person shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
-----------------
Dollars, be discharged only to the extent that on the business day in New York
next following receipt by such payee of any sum adjusted to be so due in the
Judgment Currency such payee may in accordance with normal banking procedures
purchase and transfer to New York Dollars with the Judgment Currency; if the
amount of Dollars which could have been so purchased and transferred is less
than the sum originally due in Dollars to the Agent, any Lender or any
indemnified person, as the case may be, YPF agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such payee against the
deficiency.
(b) (i) Without limiting the obligation of YPF to pay Guaranteed
Obligations hereunder in Dollars and otherwise in accordance with the provisions
of this Agreement (but without duplication of any amounts paid by YPF in Dollars
in respect of its Guaranteed Obligations), if foreign exchange restrictions are
imposed in Argentina and, as a result thereof, YPF is prohibited from purchasing
or otherwise obtaining Dollars or transferring Dollars to the account of the
Agent specified in Section 5.13 hereof, then YPF will, if and to the extent
requested to do so by the Agent (acting on the instructions of the Majority
Lenders acting in their sole discretion): (1) pay to the Agent an amount of
Argentine pesos sufficient to purchase the Argentine Public Debt Instruments (as
defined below) identified in (and in the respective amounts specified in) such
request having a value sufficient so that, upon the sale thereof for Dollars in
New York (or, at the option of the Agent, in such other city as the Agent
<PAGE>
- 22 -
shall determine it is able to obtain a better price), the Agent will receive a
sum in Dollars (net of any taxes, expenses and commissions payable in connection
with the purchase and sale of such securities) equal to the aggregate Dollar
amount owed by YPF to the Agent and the Lenders under this Agreement including
without limitation the Guaranteed Obligations; or (2) deliver to the Agent
Argentine Public Debt Instruments identified in (and in the respective amounts
specified in) such request having a value sufficient so that upon the sale
thereof for Dollars in New York (or, at the option of the Agent, in such other
city as the Agent shall determine it is able to obtain a better price), the
Agent will receive a sum in Dollars (net of any taxes, expenses and commissions
payable in connection with the purchase and sale of such securities) equal to
the aggregate Dollar amount owed by YPF to the Agent and the Lenders under this
Agreement including without limitation the Guaranteed Obligations. The receipt
by the Agent of Dollar proceeds from the sale of securities as provided in the
preceding sentence shall not be deemed to constitute payment of amounts owed by
YPF under this Agreement except to the extent credited to the account at the
Principal Office referred to in Section 5.13(a) hereof. The Agent hereby agrees
to use its best efforts to effect such purchase and/or sale, and to cause the
proceeds of any such sale (net of any taxes, expenses and commissions that are
payable in connection with such purchase and/or sale) to be credited to such
account as promptly as practicable following the payment of Argentine pesos or
delivery of Argentine Public Debt Instruments by YPF pursuant to the preceding
sentence of this Section 5.11. As used herein, "Argentine Public Debt
---------------------
Instruments" shall mean Argentine External Bonds issued by Argentina denominated
- -----------
in Dollars and other Argentine public foreign debt instruments denominated in
Dollars.
(ii) Nothing in this Section 5.11(b) shall impair any of the rights of
the Agent and the Lenders in respect of the Guaranteed Obligations under
this Agreement and nothing in this Section 5.11(b) shall be construed to
entitle YPF to refuse to make payments in respect of the Guaranteed
Obligations hereunder in Dollars in New York City for any reason whatsoever
(other than full and final payment to the Agent of all amounts due
hereunder in respect of the Guaranteed Obligations in Dollars in New York
City), including without limitation if (1) the purchase of Dollars in
Argentina by any means were to become more onerous or burdensome for YPF
than as of the date hereof; or (2) the exchange rate in force in Argentina
as of the date hereof increases significantly; or (3) the exchange ratio
between the Argentine peso and the Dollar established by Law 23,928 is
modified.
5.12 Use of English Language. This Agreement has been negotiated and
-----------------------
executed in the English language. Except as provided in Section 4.07 hereof,
all certificates, reports, notices and other documents and communications given
or delivered pursuant to this Agreement (including, without limitation, pursuant
to any modifications or supplements hereto) shall be in the English language, or
accompanied by a certified English translation thereof. Except in the case of
laws or official communications of Argentina, in the case of any document
originally issued in a language other than English, the English language version
of any such document shall for purposes of this
<PAGE>
- 23 -
Agreement, and absent manifest error, control the meaning of the matters set
forth therein.
5.13 Payments.
--------
(a) Any payments made by YPF of the Guaranteed Obligations and any
other payment made by YPF to the Agent or the Lenders hereunder shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to the Agent at account number NYAO-DI-900-9-000002 maintained by
the Agent with Chase at the Principal Office, not later than 1:00 p.m. New York
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day), provided that, if (and only if) and to the extent so
specified by the Agent (acting on the instructions of the Majority Lenders) in a
notice to YPF, YPF shall make any such payment, in immediately available funds,
without deduction, set-off or counterclaim, for the account of the Agent to such
office of such bank in Buenos Aires, Argentina, as is specified by the Agent in
such notice no later than 2:00 p.m. Buenos Aires time on the date for the
payment specified in such notice (which date shall be a day on which commercial
banks in Buenos Aires, Argentina are not authorized or required to close and
shall be no earlier than the date such payment is due hereunder) (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day).
(b) Each payment received by the Agent under this Agreement or any
Note for account of any Lender shall be paid by the Agent promptly to such
Lender, in immediately available funds, for account of such Lender's Applicable
Lending Office for the Loan or other obligation in respect of which such payment
is made.
5.14 Waiver of Jury Trial. EACH OF YPF, THE AGENT AND THE LENDERS
--------------------
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.15 Agents and Attorneys-in-Fact. The Agent may employ agents and
----------------------------
attorneys-in-fact in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith.
5.16 Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be
<PAGE>
- 24 -
liberally construed in favor of the Agent and the Lenders in order to carry out
the intentions of the parties hereto as nearly as may be possible and (b) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
5.17 Opinion of Counsel. YPF hereby instructs each of Andrews &
------------------
Kurth L.L.P. and Marval, O'Farrel & Mairal to deliver the opinions referred to
in Section 6.01(c)(i) and 6.01(c)(ii) of the Credit Agreement to the Lenders and
the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
YPF SOCIEDAD ANONIMA
By________________________
Title:
Address for Notices:
YPF Sociedad Anonima
Pte. R. Saenz Pena 777
1364 Buenos Aires, Argentina
Attention: Carlos Felices
Telecopier No.: 011-541-329-2113
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By ________________________
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association), as Agent
4 Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
<PAGE>
- 25 -
with a copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Ian Shottlaender
<PAGE>
SCHEDULE I
1. Items disclosed on Schedule I to the Maxus Guarantee Agreement.
2. Items disclosed on Schedule IV to the Credit Agreement, dated as of
April 5, 1995, by and among YPF Acquisition Corp., YPF, as guarantor, the
several lenders from time to time parties thereto and The Chase Manhattan
Bank (National Association), as Agent, as amended to date.
3. Matters described in any periodic or annual reports or reports on Form 8-K
of Maxus Energy Corporation filed with the Securities and Exchange
Commission.
4. Lawsuit threatened by Jerry Krim, who claims to be a shareholder of YPF, in
connection with the offer by YPF Acquisition Corp. to purchase the
outstanding common stock of Maxus for cash and the Merger.
EXHIBIT H
YPF GUARANTEE AGREEMENT
dated as of June 16, 1995
between
YPF SOCIEDAD ANONIMA
and
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
<PAGE>
GUARANTEE AGREEMENT dated as of June 16, 1995 between YPF
SOCIEDAD ANONIMA, an Argentine sociedad anonima duly organized and validly
-------- -------
existing under the laws of Argentina ("YPF"); and THE CHASE MANHATTAN BANK
---
(NATIONAL ASSOCIATION), as agent for the lenders from time to time party to the
Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Agent").
-----
Maxus Indonesia, Inc., a Delaware corporation ("Holdings"),
Maxus Northwest Java, Inc., a Delaware corporation, and Maxus Southeast Sumatra,
Inc., a Delaware corporation, each of which is a subsidiary of YPF, certain
lenders and the Agent are parties to a Credit Agreement dated as of June 16,
1995 (as modified and supplemented and in effect from time to time, the "Credit
------
Agreement"), providing, subject to the terms and conditions thereof, for loans
- ---------
to be made by said lenders to Holdings in an aggregate principal amount not
exceeding $175,000,000.
To induce said lenders to enter into the Credit Agreement
and to extend credit thereunder, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, YPF has agreed to
guarantee the Guaranteed Obligations (as hereinafter defined). Accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit
-----------
Agreement are used herein as defined therein unless otherwise defined herein.
In addition, (a) the following terms shall have the following meanings (and
terms defined in this Section 1 or in other provisions of this Agreement in the
singular shall have the same meanings when used in the plural and vice versa)
---- -----
and (b) each reference to a Subsidiary or Subsidiaries of YPF (other than in
Section 4.07 hereof and the definition of "Total Indebtedness" in this Section
1) shall be deemed to refer to a Subsidiary or Subsidiaries of YPF (as the case
may be) other than Maxus and its Subsidiaries:
"Argentine GAAP" shall mean generally accepted accounting
--------------
principles in Argentina as in effect from time to time.
"Capital Lease Obligations" shall mean, for any Person, all
-------------------------
obligations of such Person to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) Property
to the extent such obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such
Person under Argentine GAAP, and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with Argentine GAAP.
<PAGE>
- 2 -
"Indebtedness" shall mean with respect to any Person,
------------
(a) any liability of such Person (i) for money borrowed, or under
any reimbursement obligation relating to a letter of credit, (ii)
evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any
kind (other than a trade payable or a liability arising in the
ordinary course of business, so long as such trade payable or
liability is payable within 90 days of the date the respective
goods are delivered or the respective services are rendered), or
(iii) for Capital Lease Obligations; (b) all Redeemable Stock
issued by such Person (the amount of Indebtedness being
represented by any involuntary liquidation preference plus
accrued and unpaid dividends); (c) any liability of others
described in the preceding clause (a) that such Person has
guaranteed; and (d) (without duplication) any amendment,
supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses
(a), (b) and (c) above. For purposes of determining any
particular amount of Indebtedness under this definition,
Guarantees of (or obligations with respect to letters of credit
supporting) Indebtedness otherwise included in the determination
of such amount shall not also be included.
"Maxus Public Debt Documents" shall mean, collectively, (a)
---------------------------
the Indenture dated as of April 1, 1978 between Diamond Shamrock
Corporation (as predecessor in interest to Maxus) and Mellon
Bank, N.A., as trustee, as amended by that certain First
Supplemental Indenture, dated as of January 26, 1984, among
Diamond Shamrock Corporation, Diamond Shamrock Chemicals Company
and Mellon Bank, N.A., as trustee, that certain Agreement of
Resignation/Appointment and Acceptance, dated as of February 27,
1991, among Mellon Bank, N.A., Maxus and Security Pacific
National Trust Company (New York), and that certain Tri-Party
Agreement dated January 24, 1993, among Security Pacific National
Trust Company (New York), Maxus and Chemical Bank, trustee, and
the Debentures (as defined therein) issued thereunder, (b) the
Indenture dated as of May 1, 1983 between Diamond Shamrock
Corporation (as predecessor in interest to Maxus) and Mellon
Bank, N.A., as trustee, as amended by that certain First
Supplemental Indenture, dated as of January 26, 1984, among
Diamond Shamrock Corporation, Diamond Shamrock Chemicals Company,
and Mellon Bank, N.A., under which NationsBank, N.A., currently
serves as successor trustee, and the Securities (as defined
therein) issued thereunder, (c) the Indenture dated as of
November 1, 1985 between Maxus Diamond Shamrock Corporation (as
predecessor in interest to Maxus) and Mellon Bank, N.A., as
trustee, under which NationsBank, N.A., currently serves as
successor trustee, as trustee, and the Securities (as defined
therein) issued thereunder, (d) the Indenture dated as of
April 1,
<PAGE>
- 3 -
1988 between Maxus and Chemical Bank, as trustee, and the
Securities (as defined therein) issued thereunder, and (e) the
Indenture dated as of November 1, 1990 between Maxus and Chemical
Bank, as trustee and the Securities (as defined therein) issued
thereunder, in each case, as such agreements and instruments may
be hereafter modified and supplemented and in effect from time to
time.
"Redeemable Stock" shall mean any class or series of capital
----------------
stock of any Person that by its terms or otherwise is required to
be redeemed prior to the final maturity of the Loans, or is
redeemable at the option of the holder thereof at any time prior
to the final maturity of the Loans.
"Significant Subsidiary" shall mean a Subsidiary of YPF
----------------------
which is material to the condition, financial or otherwise, or to
the earnings, operations, business affairs or business prospects
of YPF and its Subsidiaries taken as a whole.
"Subsidiary" shall mean, with respect to any Person, any
----------
corporation or other business entity of which such Person owns or
controls (either directly or through another or other
Subsidiaries) more than 50% of the issued share capital or other
ownership interest, in each case having ordinary voting power to
elect directors, managers or trustees of such corporation or
other business entity (whether or not capital stock or other
ownership interest of any other class or classes shall or might
have voting power upon the occurrence of any contingency).
"Tangible Net Worth" shall mean, as at any date, the amount
------------------
for YPF (determined in accordance with Argentine GAAP) of
(a) shareholders' equity as at such date minus (b) the sum of the
-----
following as at such date: the cost of treasury shares and the
book value of all assets that should be classified as intangibles
(without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) but in any
event including goodwill, minority interests, research and
development costs, trademarks, trade names, copyrights, patents
and franchises, unamortized debt discount and expense, all
reserves for losses, contingencies, or other liabilities (but
only to the extent such reserves were not deducted in arriving at
shareholders' equity) and any write-up in the book value of
assets resulting from a revaluation thereof subsequent to
December 31, 1994 other than as a result of the Merger.
"Total Capitalization" shall mean as at any date (a) Total
--------------------
Indebtedness as at such date plus (b) shareholders' equity of YPF
as at such date.
<PAGE>
- 4 -
"Total Indebtedness" shall mean as at any date all
------------------
Indebtedness of YPF and its Subsidiaries as of such date,
determined on a consolidated basis in accordance with Argentine
GAAP.
"YPF Material Adverse Effect" shall mean the occurrence of
---------------------------
any event or condition with respect to YPF which has a material
adverse effect on (a) the financial condition, results of
operations or the shareholders' equity of YPF and its
Subsidiaries taken as a whole, (b) the ability of YPF to perform
any of its payment or any of its other material obligations under
this Agreement, (c) the validity or enforceability of any of such
obligations, or (d) the ability of the Lenders or the Agent to
enforce any of their respective rights and remedies against YPF
under this Agreement.
Section 2. The Guarantee.
-------------
2.01 The Guarantee. YPF hereby guarantees to each Lender
-------------
and the Agent and their respective successors and assigns the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the
principal of and interest on the Loans made by the Lenders to, and, without
duplication, the Notes held by each Lender of, Holdings and all other amounts
from time to time owing to the Lenders or the Agent by Holdings under the Credit
Agreement and under the Notes, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "Guaranteed
----------
Obligations"). YPF hereby further agrees that if Holdings shall fail to pay in
- -----------
full when due (whether at stated maturity, by acceleration or otherwise) any of
the Guaranteed Obligations, YPF will promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of YPF
-------------------------
under Section 2.01 hereof are, to the fullest extent permitted by law, absolute
and unconditional irrespective of the value, genuineness, validity, regularity
or enforceability of the Credit Agreement, the Notes or any other agreement or
instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or any security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 2.02 that the obligations of YPF hereunder
shall be absolute and unconditional under any and all circumstances (other than
full and final payment of the Guaranteed Obligations).
<PAGE>
- 5 -
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of YPF hereunder which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
YPF, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance
or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be done or
omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be waived or any
other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in
part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor
of, the Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
YPF hereby expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Agent or any Lender
exhaust any right, power or remedy or proceed against Holdings under the Credit
Agreement or the Notes or any other agreement or instrument referred to herein
or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations. YPF hereby also irrevocably
waives any right contemplated by Articles 480 (second paragraph), 481 and 482 of
the Argentine Commercial Code as well as any rights and powers contemplated by
Articles 1990, 1994, 2012, 2015, 2017, 2018, 2020, 2021, 2022, 2023, 2025, 2026,
2029, 2043, 2044, 2045, 2046, 2047, 2049 and 2050 of the Argentine Civil Code.
2.03 Reinstatement. The obligations of YPF under this
-------------
Section 2 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Holdings in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and YPF agrees that it will indemnify the Agent
and each Lender on demand for all reasonable
<PAGE>
- 6 -
costs and expenses (including, without limitation, fees of counsel) incurred by
the Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
2.04 Subrogation. YPF hereby waives all rights of
-----------
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 2 and further agrees with Holdings for the benefit of
each of its creditors (including, without limitation, each Lender and the Agent)
that any such payment by it shall constitute a contribution of capital by YPF to
Holdings (or an investment in the equity capital of Holdings by YPF).
2.05 Remedies. YPF agrees that, as between YPF and the
--------
Lenders, to the fullest extent permitted by law, the obligations of Holdings
under the Credit Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 of the Credit Agreement (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 10) for purposes of Section 2.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against Holdings and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by Holdings) shall forthwith become due and payable by YPF for purposes of said
Section 2.01.
2.06 Instrument for the Payment of Money. To the fullest
-----------------------------------
extent permitted by law, YPF hereby (a) acknowledges that the guarantee in this
Section 2 constitutes an instrument for the payment of money, and (b) consents
and agrees that any Lender or the Agent, at its sole option, in the event of a
dispute by YPF in the payment of any moneys due hereunder, shall have the right
to bring motion-action under New York CPLR Section 3213.
2.07 Continuing Guarantee. The guarantee in this Section 2
--------------------
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
2.08 Taxes. YPF covenants and agrees that:
-----
(a) All payments on account of the Guaranteed Obligations
by YPF to the Agent and the Lenders, including, without limitation, amounts
payable under paragraph (b) of this Section 2.08, shall be made in Dollars, free
and clear of and without reduction by reason of any and all present and future
income, stamp, excise, asset, value added and other taxes and
<PAGE>
- 7 -
levies, imposts, deductions, charges, compulsory loans and withholdings
whatsoever imposed, assessed, levied or collected by Argentina or any political
subdivision or taxing authority thereof or therein, together with interest
thereon and penalties with respect thereto, if any, on or in respect of this
Agreement, the Guaranteed Obligations, the registration, notarization or other
formalization of any thereof, and any payments of principal, interest, charges,
fees or other amounts made on, under or in respect thereof (hereinafter called
"Argentine Taxes"), all of which will be paid by YPF, for its own account, prior
---------------
to the date on which penalties attached thereto.
(b) YPF will indemnify the Agent and the Lenders against,
and reimburse the Agent and the Lenders on demand for, any Argentine Taxes and
any loss, liability, claim, or expense including interest, penalties, and legal
fees which the Agent or the Lenders may incur at any time arising out of or in
connection with any failure of YPF to make any payments of Argentine Taxes when
due.
(c) To the extent that YPF is required by applicable law,
decree or regulation to deduct or withhold Argentine Taxes from any amounts
payable on, under or in respect of this Agreement, or the Guaranteed
Obligations, YPF shall pay the Agent and the Lenders in Dollars such additional
amounts as may be required, after deduction or withholding of Argentine Taxes,
to enable the Agent and the Lenders to receive from YPF an amount equal to the
amount stated to be payable in respect of this Agreement or the Guaranteed
Obligations.
(d) YPF shall furnish to the Agent and the Lenders original
tax receipts in respect of any withholding of Argentine Taxes required under
this Section 2.08 within 30 days after the date of each payment of interest
which is subject to any Argentine Taxes, and YPF shall promptly furnish to the
Agent and the Lenders any other information, documents and receipts that the
Agent and the Lenders may, in their sole discretion from time to time, require
to establish to their satisfaction that full and timely payment has been made of
all Argentine Taxes required to be paid under this Section 2.08.
(e) YPF shall pay all present and future Argentine Taxes,
including but not limited to stamp taxes, imposts, contributions, charges,
deductions, withholdings, court taxes, duties and fees which are imposed,
assessed, levied or collected in connection with the execution, delivery,
registration, notarization, enforcement or any other act related thereto, of any
of the Basic Documents and any documents related thereto, and shall, upon notice
from the Agent or any Lender, reimburse the Agent or any Lender or its assigns
for any such taxes, imposts, contributions, charges, deductions, duties and
fees.
<PAGE>
- 8 -
Section 3. Representations and Warranties. YPF represents
------------------------------
and warrants to the Lenders and the Agent that:
3.01 Organization, Standing, etc. YPF is a sociedad
---------------------------- --------
anonima (corporation) duly organized and existing and in good standing under the
- -------
laws of Argentina, has full corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into this Agreement and to carry out the terms hereof.
3.02 Qualification. YPF and each of its Subsidiaries is
-------------
duly qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction (other than the jurisdiction of its incorporation
or organization) in which the nature of its activities or the character of the
properties it owns or leases makes such qualification necessary and in which the
failure so to qualify would have a YPF Material Adverse Effect.
3.03 Financial Statements. The consolidated balance sheets
--------------------
of YPF and its Subsidiaries as at December 31, 1994, 1993 and 1992 and the
related consolidated statements of income, cash flows and changes in financial
position of YPF and its Subsidiaries for each of the fiscal years then ended,
together with related notes, such statements being accompanied by reports
thereon of Pistrelli, Diaz y Associados (associated with Arthur Andersen & Co.),
independent public accountants have been delivered to the Lenders. In addition,
the consolidated balance sheet of YPF and its Subsidiaries as at March 31, 1995
and the related consolidated statements of income, cash flows and changes in
financial position of YPF and its Subsidiaries for the fiscal quarter then ended
have been delivered to the Lenders. All such financial statements (including any
related schedules or notes) have been prepared in accordance with Argentine
GAAP, present fairly the consolidated financial position of YPF and its
Subsidiaries as at the respective dates of such consolidated balance sheets and
the consolidated results of operations, cash flows and changes in financial
position of YPF and its Subsidiaries for the fiscal periods ended on said dates
(subject to normal year end audit adjustments in the case of said financial
statements at March 31, 1995). Since December 31, 1994 there have been no
changes in the business, financial condition, operations, assets or liabilities
of YPF and its Subsidiaries from that set forth in the consolidated balance
sheet as of that date, other than changes in the ordinary course of business
which have not, either individually or in the aggregate, had a YPF Material
Adverse Effect.
3.04 Litigation, etc. Except as described on Schedule I
----------------
hereto, there is no action, suit, proceeding or investigation at law or in
equity by or before any court, governmental body, agency, commission or other
tribunal now pending or, to the best of YPF's knowledge after due inquiry,
threatened against or
<PAGE>
- 9 -
affecting YPF or its Subsidiaries or its or its Subsidiaries' property or rights
(a) which questions or would question the validity of this Agreement or (b) as
to which there is a significant possibility of an adverse determination and
which if adversely determined (i) may have a YPF Material Adverse Effect or
(ii) could impair the ability of YPF to perform its obligations hereunder.
3.05 Governmental Consents. No consent, approval or
---------------------
authorization of, or declaration or filing with, any governmental authority is
required for the valid execution, delivery and performance by YPF of this
Agreement.
3.06 Taxes. Under the laws of Argentina, the execution,
-----
delivery and performance by YPF of its obligations hereunder and all payments of
the Guaranteed Obligations and other amounts hereunder are exempt from all
income or withholding taxes, stamp taxes, charges or contributions of Argentina
or any political subdivision or taxing authority thereof, irrespective of the
fact that the Agent or any of the Lenders may have a representative office or
subsidiary in Argentina; provided, however, that under current law payments of
-------- -------
interest by YPF under this Agreement would be subject to a withholding tax at
the rate of 12% to the extent any such interest payments were deemed to be
subject to income tax contemplated under Argentine law.
3.07 Authorization. YPF has all necessary corporate power,
-------------
authority and legal right to execute, deliver and perform its obligations
hereunder. This Agreement has been duly authorized by all requisite corporate
and other actions and duly executed and delivered by an authorized officer of
YPF, and is the valid obligation of YPF, legally binding upon and enforceable
against YPF in accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.08 No Conflicts. The execution, delivery and performance
------------
by YPF of this Agreement do not and will not violate the provisions of any
applicable law or regulation of Argentina (or of any political subdivision
thereof) presently in effect or any order of any court, regulatory body or
arbitral tribunal or of the estatutos of YPF, other than violations that
---------
individually or collectively could not have a YPF Material Adverse Effect, and
do not and will not constitute a breach or default or require any consent under,
or result in the creation of any Lien on any of the present or future revenues
and properties of YPF or any of its Subsidiaries pursuant to, any agreement,
instrument or document to which YPF or any of its Subsidiaries is a party or by
which YPF or any of its or its Subsidiaries' respective
<PAGE>
- 10 -
properties or revenues may be bound or affected except to the extent that such
breaches, defaults or Liens individually or collectively could not have a YPF
Material Adverse Effect.
3.09 Commercial Obligations. YPF is subject to civil and
----------------------
commercial law with respect to its obligations hereunder, and the execution,
delivery and performance by YPF of its obligations under this Agreement,
constitute private and commercial acts; and neither YPF nor any of its
properties or revenues is entitled to any right of immunity from suit, court
jurisdiction, attachment prior to judgment, attachment in aid of execution of a
judgment, set-off, execution of a judgment or from any other legal process with
respect to such obligations.
3.10 Enforceability. This Agreement is in proper legal
--------------
form under the laws of Argentina for the enforcement thereof against YPF in the
courts of Argentina and it is not necessary, to ensure the enforceability or
admissibility in evidence of this Agreement, that the same be filed or recorded
with any court or other authority in Argentina except that if this Agreement is
enforced before the courts of the city of Buenos Aires, the payment of a court
tax of 3% on the amount of the claim is required; and except further that an
official Spanish translation of this Agreement is required to bring an action
thereon in the courts of Argentina.
3.11 Ranking. YPF's obligations under Section 2 hereof are
-------
direct and unconditional general obligations of YPF and will rank in right of
payment at least pari passu with all other Indebtedness of YPF, except to the
---- -----
extent any such other Indebtedness is accorded preference by reason of
collateral security for such other Indebtedness.
3.12 Environmental Matters. YPF has obtained all permits,
---------------------
licenses and other authorizations which are required under all environmental
laws and regulations, except to the extent failure to have any such permit,
license or authorization would not have a YPF Material Adverse Effect. YPF is
in compliance with the terms and conditions of all such permits, licenses and
authorizations and of all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable environmental law or in any regulation or code (as
such laws, regulations or codes are currently being interpreted or enforced) or
any plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply would not have a YPF Material Adverse Effect.
3.13 Exploration, Permits, Etc. All oil and gas
--------------------------
exploration permits and production and transportation concessions held by YPF
are in effect and YPF is not in breach of any of its obligations thereunder or
in connection therewith that may
<PAGE>
- 11 -
potentially cause the forfeiture of its rights under said permits and
concessions or impair or otherwise affect the exercise of its rights thereunder
except to the extent that any such breach would not cause a YPF Material Adverse
Effect.
3.14 True and Complete Disclosure. The information,
----------------------------
reports (including, without limitation, hydrocarbon engineering reports),
financial statements, exhibits and schedules furnished in writing by or on
behalf of YPF to the Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Basic Documents or
included herein or therein or delivered pursuant hereto, when taken as a whole
and when considered with respect to the Relevant Obligors and their respective
Subsidiaries, to the actual knowledge of YPF, do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading. YPF has not delivered any information to the Agent
or any Lender relating to general economic conditions in South America, and in
particular, Argentina. All written information furnished after the date hereof
by or on behalf of YPF to the Agent or the Lenders in connection with this
Agreement and the other Basic Documents and the transactions contemplated hereby
and thereby will be true, complete and accurate in every material respect, or
(in the case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact known to YPF
that could reasonably be expected to have a YPF Material Adverse Effect, a
Closing Date Material Adverse Effect or an Indonesian Material Adverse Effect
that has not been disclosed herein or in the other Basic Documents (including in
each case the exhibits and schedules thereto) or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders in connection with the transactions contemplated hereby or thereby.
Section 4. Covenants. YPF agrees that, until the payment
---------
and satisfaction in full of the Guaranteed Obligations:
4.01 Maintenance of Existence. YPF shall, and shall cause
------------------------
each of its Subsidiaries to, (a) maintain in effect its corporate existence and
all registrations necessary therefor and (b) take all reasonable actions to
maintain all rights, privileges, titles to property, franchises and the like
necessary or desirable in the normal conduct of its business, activities or
operations; provided, however, that this covenant shall not prohibit any
-------- -------
transaction by YPF or any of its Subsidiaries otherwise permitted under Section
4.16 hereof and this covenant shall not require YPF to maintain any such right,
privilege, title to property or franchise or to preserve the corporate existence
of any Subsidiary, if the Board of Directors of YPF shall determine that (i) the
maintenance or preservation thereof is no longer desirable in the conduct of the
business of YPF and
<PAGE>
- 12 -
its Subsidiaries taken as a whole and (ii) the loss thereof is not, and will not
be, adverse in any material respect to the Lenders.
4.02 Maintenance of Properties. YPF shall cause all
-------------------------
tangible Properties used or useful in the conduct of its business or the
business of any Subsidiary of YPF to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements and improvements
thereof, all as in the judgment of YPF may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing shall prevent YPF from
-------- -------
discontinuing the operation or maintenance of any of such Properties if such
discontinuance is, as determined by the Board of Directors of YPF in good faith,
desirable in the conduct of the business of YPF and its Subsidiaries taken as a
whole and not adverse in any material respect to the Lenders.
4.03 Payments of Taxes and Other Claims. YPF shall pay or
----------------------------------
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments, royalties and governmental charges
levied or imposed upon YPF or any of its Subsidiaries, and (b) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the Property of YPF or any of its Subsidiaries; provided, however, that YPF
-------- -------
will not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claims whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
4.04 Maintenance of Insurance. YPF shall, and shall cause
------------------------
each of its Subsidiaries to, keep at all times all of their Properties which are
of an insurable nature insured against loss or damage with insurers believed by
YPF to be responsible to the extent that Property of similar characteristics is
usually so insured by corporations similarly situated and owing like Properties
in accordance with good business practice.
4.05 Negative Pledge. YPF shall not, and shall not permit
---------------
any of its Subsidiaries to, create or suffer to exist any Lien on any of their
present or future Property, in each case to secure Indebtedness, unless all of
the Guaranteed Obligations are equally and ratably secured, except for:
(i) any Lien on any Property existing on the date hereof;
<PAGE>
- 13 -
(ii) any Lien on any asset securing Indebtedness incurred or
assumed solely for the purpose of financing all or any part of
the cost of acquiring or constructing such asset;
(iii) any Lien on any Property existing thereon at the time
of acquisition of such Property and not created in connection
with such acquisition;
(iv) any Lien on any Property owned by a corporation or
other Person, which Lien exists at the time of the acquisition of
such corporation or other Person by YPF or any of its
Subsidiaries and which Lien is not created in connection with
such acquisition;
(v) any Lien on any Property securing an extension, renewal
or refunding of Indebtedness secured by a Lien referred to in
(i), (ii), (iii) or (iv) above, provided that such new Lien is
limited to the Property which was subject to the prior Lien
immediately before such extension, renewal or refunding, and
provided that the principal amount of Indebtedness secured by the
prior Lien immediately before such extension, renewal or
refunding is not increased;
(vi) any Lien in the form of a tax or other statutory lien,
provided that any such lien shall be discharged within 30 days
after the date it is created or arises (unless contested in good
faith by YPF or a Subsidiary, in which case it shall be
discharged within thirty (30) days after final adjudication); or
(vii) any other Lien on assets of YPF or any Subsidiary,
provided that the assets securing such Indebtedness together with
all other Property of YPF securing any Indebtedness under this
subparagraph (vii) do not exceed 15% of the total assets of YPF;
provided, that, for purposes of this clause (vii), (A) the value
-------- ----
of such assets, Property and total assets shall be determined by
reference to the most recent audited balance sheet of YPF
prepared in accordance with Argentine GAAP, and (B) the value of
the assets and Property securing Indebtedness shall not exceed
the outstanding principal amount of such Indebtedness.
Notwithstanding the foregoing, YPF shall not create or suffer to exist any Lien
on any capital stock of Maxus now owned or hereafter acquired by YPF.
4.06 Limitations on Sale and Leaseback Transactions. YPF
----------------------------------------------
shall not enter into, renew or extend, or permit any Subsidiary to enter into,
renew or extend, any transaction or series of related transactions pursuant to
which YPF or any such Subsidiary sells or transfers any Property in connection
with the leasing, or the release against installment payments, or as part
<PAGE>
- 14 -
of an arrangement involving the leasing or resale against installment payments,
of such Property to the seller or transferor ("Sale and Leaseback Transaction")
------------------------------
except (i) a Sale and Leaseback Transaction that, had such Sale and Leaseback
Transaction been structured as a mortgage loan rather than as a Sale and
Leaseback Transaction, YPF would have been permitted to enter into such
transaction pursuant to Section 4.05 hereof and (ii) a Sale and Leaseback
Transaction entered into prior to April 5, 1995.
4.07 Financial Statements; Other Information.
---------------------------------------
(a) YPF will furnish or cause to be furnished to the Agent
(with a copy for each Lender) (i) annual reports in English, which will include
a report of YPF's statutory audit committee and annual audited financial
statements prepared in conformity with Argentine GAAP, together with a
reconciliation to generally accepted accounting principles as in effect in the
United States of America of net income and shareholders' equity and (ii)
quarterly reports in English which will include unaudited interim financial
information prepared in conformity with Argentine GAAP. YPF will furnish to the
Agent (with a copy for each Lender), at the time it furnishes each set of
financial information, a certificate of the chief financial officer of YPF to
the effect that no Default has occurred and is continuing (or, if any Default
has occurred and is continuing, describing the same in reasonable detail and
describing the action that YPF has taken or proposes to take with respect
thereto). YPF also will furnish or cause to be furnished to the Agent (with a
copy for each Lender) in English (i) all notices of shareholders' meetings and
other reports and communications that are made generally available to YPF's
shareholders and (ii) registration statements and regular and periodic reports
which YPF shall have filed with the Commission, any United States securities
exchange, the Argentine Securities Commission ("Comision Nacional de Valores"),
----------------------------
the Buenos Aires Stock Exchange or any other stock exchange in Argentina.
Notwithstanding the provisions of Section 5.12, YPF shall have no obligation to
provide an English translation of any such report filed with the Argentine
Securities Commission, the Buenos Aires Stock Exchange or any other stock
exchange in Argentina if a report in English providing substantially the same
information (with no material differences) has been furnished to the Agent in
accordance with this Section 4.07. From time to time YPF shall furnish to the
Agent such other information regarding the financial condition, operations,
business or prospects of YPF or any of its Subsidiaries as the Agent or any
Lender (through the Agent) may reasonably request.
(b) Promptly after a senior officer of YPF becomes aware
that any Default has occurred (other than a Default that has ceased to exist),
YPF will deliver to the Agent notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a
<PAGE>
- 15 -
description of the action that YPF has taken or proposes to take with respect
thereto.
4.08 Compliance with Laws and Other Agreements. YPF shall,
-----------------------------------------
and shall cause each of its Subsidiaries to, comply with all applicable laws,
rules, regulations, orders and directions of any governmental or regulatory
authority or agency having jurisdiction over it or its business and all of the
covenants and obligations contained in any agreements to which YPF or any
Subsidiary is a party, except where the failure to so comply would not have a
YPF Material Adverse Effect.
4.09 Maintenance of Books and Records. YPF shall, and
--------------------------------
shall cause each of its Argentine Subsidiaries to, maintain books, accounts and
records in accordance with Argentine GAAP.
4.10 Inspection. YPF shall permit representatives of the
----------
Agent or any Lender, during normal business hours and at the expense of the
Agent or such Lender (as the case may be), to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably requested
by the Agent or such Lender.
4.11 Further Assurances. YPF will, at its own cost and
------------------
expense, execute and deliver to the Agent (with a copy for each Lender, if
requested by the Agent) all such documents, instruments and agreements and do
all such other acts and things as may be reasonably required, in the opinion of
the Agent or the Majority Lenders (acting through the Agent), to enable the
Lenders to exercise and enforce their rights under the Basic Documents.
4.12 Ranking. YPF will ensure that at all times its
-------
obligations under Section 2 hereof rank at least pari passu (whether in priority
---- -----
of payment or otherwise) with all of its other Indebtedness, except to the
extent any such other Indebtedness is accorded preference by reason of
collateral security for such other Indebtedness.
4.13 Litigation. YPF will promptly give to the Agent
----------
notice of all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting YPF or any of its
Subsidiaries, except proceedings which, if adversely determined, would not have
a YPF Material Adverse Effect.
4.14 Total Indebtedness. YPF shall not permit at any time
------------------
Total Indebtedness to exceed 45% of Total Capitalization.
4.15 Tangible Net Worth. YPF shall not permit at any time
------------------
Tangible Net Worth (expressed in Argentine pesos) to be less
<PAGE>
- 16 -
than 3,980,000,000 Argentine pesos which is equal to 80% of Tangible Net Worth
as at December 31, 1994.
4.16 Merger, Etc. YPF shall not, and shall not permit any
------------
of its Significant Subsidiaries to, merge or consolidate with or into, or
convey, transfer or lease their respective Properties substantially as an
entirety to, any Person, unless immediately after giving effect to such
transaction, (a) no Default shall have occurred and be continuing, and (b) with
respect to a merger or consolidation of YPF with or into any Person, (i) any
corporation formed by any merger or consolidation with YPF or the Person which
acquires by conveyance or transfer, or which leases, the Properties of YPF
substantially as an entirety ("YPF's Successor Corporation") shall be an
---------------------------
Argentine corporation and shall expressly assume the due and punctual payment
and performance of all of the obligations and covenants of YPF hereunder.
4.17 Maintenance of Concessions, Permits, Leases and
-----------------------------------------------
Licenses. YPF shall maintain in full force and effect and good standing (and
- --------
renew or extend when appropriate) all its rights under any existing or future
oil and gas exploration permits and production and transportation concessions,
leases or licenses and to observe and perform all conditions or restrictions
contained or arising thereunder except to the extent any such failure (i) to
maintain, observe or perform would not have a YPF Material Adverse Effect or
(ii) arises from the scheduled expiration thereof in accordance with its terms.
4.18 Modifications of Certain Documents. YPF shall not
----------------------------------
consent to any modification, supplement or waiver of any provision of (a) any
document or agreement in respect of its obligations under Section 5.15 of the
Merger Agreement and (b) its Guarantee of (i) the Indebtedness of Maxus under
the Maxus Public Debt Documents or (ii) obligations of Maxus in respect of
Maxus' $9.75 Cumulative Convertible Preferred Stock, in each case, as such
agreements or documents (as the case may be) are in effect on the date hereof,
without in each case, the prior consent of the Majority Lenders (or the Agent
acting with the consent of the Majority Lenders).
4.19 Ownership of Maxus Shares, Holdings and the Subsidiary
------------------------------------------------------
Guarantors. At all times from and after the consummation of the Merger, YPF
- ----------
shall (a) own all of the issued and outstanding shares of common stock of Maxus
other than any such shares issued after the consummation of the Merger pursuant
to Equity Rights issued by Maxus prior to the consummation of the Merger and
(b) cause Holdings and the Subsidiary Guarantors to be Wholly Owned Subsidiaries
of YPF except to the extent that any of them ceases to be such a Wholly Owned
Subsidiary as a result of such issuance of such shares by Maxus.
<PAGE>
- 17 -
Section 5. Miscellaneous.
-------------
5.01 No Waiver. No failure on the part of the Agent or any
---------
Lender to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Agent or any Lender of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
herein are cumulative and are not exclusive of any remedies provided by law.
5.02 Notices. All notices, requests, consents and demands
-------
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof or, as to either party, at such other address as shall be
designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
5.03 Expenses. YPF agrees to reimburse each of the Lenders
--------
and the Agent for all reasonable out of pocket costs and expenses of the Lenders
and the Agent (including, without limitation, the reasonable fees and expenses
of legal counsel) in connection with (a) any Event of Default and any
enforcement or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (i)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (ii) judicial or regulatory proceedings and (iii) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (b) the
enforcement of this Section 5.03.
5.04 Amendments, Etc. The terms of this Agreement may be
---------------
waived, altered or amended only by an instrument in writing duly executed by YPF
and the Agent (with the prior consent of the Lenders or the Majority Lenders, as
the case may be, as specified in Section 11.09 of the Credit Agreement). Each
such amendment or waiver shall be binding upon the Agent and each Lender, each
holder of any of the Guaranteed Obligations and YPF.
5.05 Successors and Assigns. This Agreement shall be
----------------------
binding upon and inure to the benefit of the respective successors and assigns
of YPF, the Agent, the Lenders and each holder of any of the Guaranteed
Obligations (provided, however, that except as provided in Section 4.16 hereof,
--------
YPF shall not assign or transfer any of its rights or obligations hereunder
without the prior consent of the Agent (with the consent of the Lenders as
specified in Section 11.09 of the Credit Agreement)).
<PAGE>
- 18 -
5.06 Captions. The captions and section headings appearing
--------
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
5.07 Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one and the
same instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart.
5.08 Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the law of the State of New York.
5.09 Jurisdiction, Venue, Immunity and Service of Process.
----------------------------------------------------
(a) YPF hereby consents to the non-exclusive jurisdiction
of any court of the State of New York or any United States federal court sitting
in the Borough of Manhattan, New York City, New York, United States, and any
appellate court from any thereof, and waives any immunity from the jurisdiction
of such courts over any suit, action or proceeding that may be brought in
connection with any of this Agreement and the transactions contemplated hereby.
YPF hereby irrevocably waives, to the fullest extent permitted by law, any
objection to any suit, action or proceeding that may be brought in connection
with this Agreement and the transactions contemplated hereby in such courts
whether on grounds of venue, residence or domicile or on the ground that any
such suit, action or proceeding has been brought in an inconvenient forum. YPF
agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon YPF and may be enforced in any
court to the jurisdiction of which YPF is subject by a suit upon such judgment,
provided that service of process is effected upon YPF in the manner provided in
- --------
this Section 5.09. Notwithstanding the foregoing, any suit, action or
proceeding brought in connection with any of this Agreement and the transactions
contemplated hereby may be instituted in any competent court in Argentina.
(b) To the extent that YPF has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process, YPF hereby
waives such immunity and agrees not to assert, by way of motion, as a defense or
otherwise, in any suit, action or proceeding the defense of sovereign immunity
or any claim that it is not personally subject to the jurisdiction of the
above-named courts by reason of sovereign immunity or otherwise, or that it is
immune from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property or from attachment either prior
<PAGE>
- 19 -
to judgment or in aid of execution by reason of sovereign immunity.
(c) YPF hereby agrees that service of all writs, process
and summonses in any such suit, action or proceeding brought in the State of New
York may be made upon it by service upon CT Corporation System (the "Process
-------
Agent"), presently having an office at 1633 Broadway, New York, New York 10019,
- -----
U.S.A., and YPF hereby irrevocably appoints the Process Agent its true and
lawful agent and attorney-in-fact in its name, place and stead to accept such
service of any and all such writs, process and summonses, and agrees that the
failure of the Process Agent to give any notice of any such service of process
to YPF shall not impair or affect the validity of such service or of any
judgment based thereon. If for any reason CT Corporation System ceases to act,
or to be able to act, as a Process Agent as contemplated hereby, YPF will
appoint a substitute therefor and agrees to maintain at all times an agent in
the United States of America to act as its Process Agent. YPF hereby further
irrevocably consents to the service of process in any suit, action or proceeding
in said courts by the mailing thereof by the Agent or the Lender or any holder
of any Note by registered or certified mail, postage prepaid, to YPF at the
address given below its name on the signature pages hereto.
(d) Nothing herein shall in any way be deemed to limit the
ability of the Agent or any Lender to serve any such writs, process or summonses
in any other manner permitted by applicable law or to obtain jurisdiction over
YPF in such other jurisdictions, and in such manner, as may be permitted by
applicable law.
5.10 Special Waiver. To the extent that YPF may be
--------------
entitled to the benefit of any provision of law requiring the Agent or the
Lender in any suit, action or proceeding brought in a court of Argentina or
other jurisdiction arising out of or in connection with any of this Agreement
and the transactions contemplated hereby, to post security for litigation costs
or otherwise post a performance bond or guaranty ("cautio judicatum solvi" or
----------------------
"excepcion de arraigo"), or to take any similar action, YPF hereby irrevocably
--------------------
waives such benefit, in each case to the fullest extent now or hereafter
permitted under the laws of Argentina or, as the case may be, such other
jurisdiction.
5.11 Judgment Currency. (a) This Agreement is part of an
-----------------
international loan transaction in which the specification of Dollars and payment
in New York City is of the essence, and the obligations of YPF under this
Agreement to make payment to (or for the account of) the Agent or a Lender in
Dollars shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any other currency or in another
place except to the extent that such tender or recovery results in the effective
receipt by the Agent or such
<PAGE>
- 20 -
Lender in New York City of the full amount of Dollars payable to the Agent or
such Lender hereunder. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due under this Agreement to the Agent, any Lender
or any indemnified person in Dollars into another currency the rate of exchange
used shall be that at which in accordance with normal banking procedures such
party could purchase Dollars with such other currency in New York City on the
business day in New York next preceding the day on which final judgment is
rendered. The obligation of YPF in respect of any sum payable under this
Agreement by it to the Agent, any Lender or any indemnified person shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
-----------------
Dollars, be discharged only to the extent that on the business day in New York
next following receipt by such payee of any sum adjusted to be so due in the
Judgment Currency such payee may in accordance with normal banking procedures
purchase and transfer to New York Dollars with the Judgment Currency; if the
amount of Dollars which could have been so purchased and transferred is less
than the sum originally due in Dollars to the Agent, any Lender or any
indemnified person, as the case may be, YPF agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such payee against the
deficiency.
(b) (i) Without limiting the obligation of YPF to pay
Guaranteed Obligations hereunder in Dollars and otherwise in accordance with the
provisions of this Agreement (but without duplication of any amounts paid by YPF
in Dollars in respect of its Guaranteed Obligations), if foreign exchange
restrictions are imposed in Argentina and, as a result thereof, YPF is
prohibited from purchasing or otherwise obtaining Dollars or transferring
Dollars to the account of the Agent specified in Section 5.13 hereof, then YPF
will, if and to the extent requested to do so by the Agent (acting on the
instructions of the Majority Lenders acting in their sole discretion): (1) pay
to the Agent an amount of Argentine pesos sufficient to purchase the Argentine
Public Debt Instruments (as defined below) identified in (and in the respective
amounts specified in) such request having a value sufficient so that, upon the
sale thereof for Dollars in New York (or, at the option of the Agent, in such
other city as the Agent shall determine it is able to obtain a better price),
the Agent will receive a sum in Dollars (net of any taxes, expenses and
commissions payable in connection with the purchase and sale of
<PAGE>
- 21 -
such securities) equal to the aggregate Dollar amount owed by YPF to the Agent
and the Lenders under this Agreement including without limitation the Guaranteed
Obligations; or (2) deliver to the Agent Argentine Public Debt Instruments
identified in (and in the respective amounts specified in) such request having a
value sufficient so that upon the sale thereof for Dollars in New York (or, at
the option of the Agent, in such other city as the Agent shall determine it is
able to obtain a better price), the Agent will receive a sum in Dollars (net of
any taxes, expenses and commissions payable in connection with the purchase and
sale of such securities) equal to the aggregate Dollar amount owed by YPF to the
Agent and the Lenders under this Agreement including without limitation the
Guaranteed Obligations. The receipt by the Agent of Dollar proceeds from the
sale of securities as provided in the preceding sentence shall not be deemed to
constitute payment of amounts owed by YPF under this Agreement except to the
extent credited to the account at the Principal Office referred to in
Section 5.13(a) hereof. The Agent hereby agrees to use its best efforts to
effect such purchase and/or sale, and to cause the proceeds of any such sale
(net of any taxes, expenses and commissions that are payable in connection with
such purchase and/or sale) to be credited to such account as promptly as
practicable following the payment of Argentine pesos or delivery of Argentine
Public Debt Instruments by YPF pursuant to the preceding sentence of this
Section 5.11. As used herein, "Argentine Public Debt Instruments" shall mean
---------------------------------
Argentine External Bonds issued by Argentina denominated in Dollars and other
Argentine public foreign debt instruments denominated in Dollars.
(ii) Nothing in this Section 5.11(b) shall impair any of the
rights of the Agent and the Lenders in respect of the Guaranteed Obligations
under this Agreement and nothing in this Section 5.11(b) shall be construed to
entitle YPF to refuse to make payments in respect of the Guaranteed Obligations
hereunder in Dollars in New York City for any reason whatsoever (other than full
and final payment to the Agent of all amounts due hereunder in respect of the
Guaranteed Obligations in Dollars in New York City), including without
limitation if (1) the purchase of Dollars in Argentina by any means were to
become more onerous or burdensome for YPF than as of the date hereof; or (2) the
exchange rate in force in Argentina as of the date hereof increases
significantly; or (3) the exchange ratio between the Argentine peso and the
Dollar established by Law 23,928 is modified.
5.12 Use of English Language. This Agreement has been
-----------------------
negotiated and executed in the English language. Except as provided in Section
4.07 hereof, all certificates, reports, notices and other documents and
communications given or delivered pursuant to this Agreement (including, without
limitation, pursuant to any modifications or supplements hereto) shall be in the
English language, or accompanied by a certified English translation thereof.
Except in the case of laws or official communications of Argentina, in the case
of any document originally issued in a language other than English, the English
language version of any such document shall for purposes of this Agreement, and
absent manifest error, control the meaning of the matters set forth therein.
5.13 Payments.
--------
(a) Any payments made by YPF of the Guaranteed Obligations
and any other payment made by YPF to the Agent or the
<PAGE>
- 22 -
Lenders hereunder shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Agent at account number
NYAO-DI-900-9-000002 maintained by the Agent with Chase at the Principal Office,
not later than 1:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day), provided that, if (and
only if) and to the extent so specified by the Agent (acting on the instructions
of the Majority Lenders) in a notice to YPF, YPF shall make any such payment, in
immediately available funds, without deduction, set-off or counterclaim, for the
account of the Agent to such office of such bank in Buenos Aires, Argentina, as
is specified by the Agent in such notice no later than 2:00 p.m. Buenos Aires
time on the date for the payment specified in such notice (which date shall be a
day on which commercial banks in Buenos Aires, Argentina are not authorized or
required to close and shall be no earlier than the date such payment is due
hereunder) (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day).
(b) Each payment received by the Agent under this Agreement
or any Note for account of any Lender shall be paid by the Agent promptly to
such Lender, in immediately available funds, for account of such Lender's
Applicable Lending Office for the Loan or other obligation in respect of which
such payment is made.
5.14 Waiver of Jury Trial. EACH OF YPF, THE AGENT AND THE
--------------------
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.15 Agents and Attorneys-in-Fact. The Agent may employ
----------------------------
agents and attorneys-in-fact in connection herewith and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
5.16 Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agent and the
Lenders in order to carry out the intentions of the parties hereto as nearly as
may be possible and (b) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
5.17 Opinion of Counsel. YPF hereby instructs each of
------------------
Andrews & Kurth L.L.P. and Marval, O'Farrel & Mairal to deliver
<PAGE>
- 23 -
the opinions referred to in Section 7.01(c)(i) and 7.01(c)(ii) of the Credit
Agreement to the Lenders and the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
YPF SOCIEDAD ANONIMA
By________________________
Title:
Address for Notices:
YPF Sociedad Anonima
Pte. R. Saenz Pena 777
1364 Buenos Aires, Argentina
Attention: Carlos Felices
Telecopier No.: 011-541-329-2113
<PAGE>
- 24 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Agent
By ________________________
Title:
Address for Notices:
The Chase Manhattan Bank
(National Association), as Agent
4 Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
with a copy to:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Ian Schottlaender
<PAGE>
SCHEDULE I
1. Items disclosed on Schedule I to the Maxus Guarantee Agreement
dated as of June 16, 1995, between Maxus Energy Corporation and
The Chase Manhattan Bank (National Association), as Agent.
2. Items disclosed on Schedule I to the Maxus Guarantee Agreement
dated as of June 8, 1995, between Maxus Energy Corporation and
The Chase Manhattan Bank (National Association), as Agent.
3. Items disclosed on Schedule IV to the Credit Agreement, dated as
of April 5, 1995, by and among YPF Acquisition Corp., YPF, as
guarantor, the several lenders from time to time parties thereto
and The Chase Manhattan Bank (National Association), as Agent, as
amended to date.
4. Matters described in any periodic or annual reports or reports on
Form 8-K or Form 6-K of Maxus Energy Corporation or YPF Sociedad
Anonima filed with the Securities and Exchange Commission.
5. Lawsuit threatened by Jerry Krim, who claims to be a shareholder
of YPF, in connection with the offer by YPF Acquisition Corp. to
purchase the outstanding common stock of Maxus for cash and the
Merger.
