-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, CbfEYqs1Ce5w0oj/L6KsXoc7t8baVyTibHMO8SlI0iCpQq9LzweYBS/XAhn6WTti 1sc330rlDMiHa3BGzovlYw== 0000950112-95-001698.txt : 19950620 0000950112-95-001698.hdr.sgml : 19950620 ACCESSION NUMBER: 0000950112-95-001698 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950619 SROS: NONE GROUP MEMBERS: YPF ACQUISITION CORP. GROUP MEMBERS: YPF SOCIEDAD ANONIMA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MAXUS ENERGY CORP /DE/ CENTRAL INDEX KEY: 0000724176 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 751891531 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34421 FILM NUMBER: 95547924 BUSINESS ADDRESS: STREET 1: 717 N HARWOOD ST- RM 3147 CITY: DALLAS STATE: TX ZIP: 75201-6594 BUSINESS PHONE: 2149532000 FORMER COMPANY: FORMER CONFORMED NAME: DIAMOND SHAMROCK CORP /DE/ DATE OF NAME CHANGE: 19870518 FORMER COMPANY: FORMER CONFORMED NAME: NEW DIAMOND CORP DATE OF NAME CHANGE: 19830908 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: YPF SOCIEDAD ANONIMA CENTRAL INDEX KEY: 0000904851 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 521612271 STATE OF INCORPORATION: C1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: AVENIDA PTE R SAENZ 777-8 PISO CITY: BUENOS AIRES 1364 AR STATE: C1 BUSINESS PHONE: 5413267265 MAIL ADDRESS: STREET 1: AVENIDA PTE R SAENZ 777-8 PISO CITY: BUENOS AIRES STATE: C1 SC 13D/A 1 YPF SOCIEDAD ANONIMA SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* ----------------- Maxus Energy Corporation (Name of Issuer) ----------------- Common Stock, Par Value $1.00 Per Share (Title of Class of Securities) ----------------- 577730 10 4 (CUSIP Number) ----------------- 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). 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! 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 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. 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 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 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 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, 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 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 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 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 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 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). EX-99.F 2 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. 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 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 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 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 EX-99.G 3 EXHIBIT G YPF GUARANTEE AGREEMENT dated as of June 8, 1995 between YPF SOCIEDAD ANONIMA and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) 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. - 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, - 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 - 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 - 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 - 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. - 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. - 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 - 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. - 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 - 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 - 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 - 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 - 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 - 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. - 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 - 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 - 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. - 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. - 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 - 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 - 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 - 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 - 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 - 25 - with a copy to: The Chase Manhattan Bank (National Association) 1 Chase Manhattan Plaza New York, New York 10081 Attention: Ian Shottlaender 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. EX-99.H 4 EXHIBIT H YPF GUARANTEE AGREEMENT dated as of June 16, 1995 between YPF SOCIEDAD ANONIMA and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) 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. - 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, - 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. - 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). - 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 - 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 - 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. - 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 - 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 - 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 - 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 - 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; - 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 - 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 - 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 - 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. - 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)). - 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 - 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 - 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 - 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 - 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 - 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 - 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 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. -----END PRIVACY-ENHANCED MESSAGE-----