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EXHIBIT 4.27
WAIVER OF CERTAIN RIGHTS RELATING TO
$9.75 PREFERRED STOCK
THIS WAIVER OF CERTAIN RIGHTS RELATING TO $9.75 PREFERRED
STOCK (the "Waiver") is executed by The Prudential Insurance Company of
America, a New Jersey corporation ("Prudential"), and Maxus Energy Corporation,
a Delaware corporation (the "Company"), dated as of this 8th day of June, 1995.
RECITALS
A. Prudential and Maxus entered into a Preferred Stock
Purchase Agreement dated February 1, 1987, providing for the issuance to
Prudential of 3,000,000 shares (the "Shares") of $9.75 Cumulative Convertible
Preferred Stock, par value $1.00 per share (the "$9.75 Preferred Stock"), of
the Company having the rights set forth in the Certificate of Designations for
the $9.75 Preferred Stock (the "Certificate of Designations");
B. The Preferred Stock Purchase Agreement was
subsequently amended by agreements between Prudential and the Company dated
February 8, 1987 and April 12, 1990; pursuant to the April 12, 1990 agreement
(the "Second Stock Purchase Agreement") (1) the Company reacquired from
Prudential 500,000 of the Shares, and (2) Prudential executed and delivered a
Waiver of Certain Equity Offering Rights dated as of April 12, 1990 and a
Waiver of Certain Rights Relating to $9.75 Preferred Stock dated June 5, 1990;
C. Prudential and the Company entered into a letter
agreement dated February 28, 1995 (the "Letter Agreement") pursuant to which
Prudential, upon the request of the Company, and the Company agreed to execute
irrevocable and unconditional waivers of certain provisions of the Certificate
of Designation, such waivers to be effective upon the effectiveness of a
guaranty (the "YPF Guaranty") by YPF Sociedad Anonima, a sociedad anonima
organized under the laws of the Republic of Argentina ("YPF");
D. The YPF Guaranty has become effective; and
E. Simultaneously with such effectiveness Prudential and
the Company are executing and delivering this Waiver pursuant to the Letter
Agreement.
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, and for other consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Prudential Waiver of Certain Rights. Prudential
hereby unconditionally, irrevocably and permanently waives any and all rights
of the holders of the Shares under Section 2(b), Section 3(b), Section 8 and
Section 9 of the Certificate of Designations.
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2. Company Waiver of Certain Rights. The Company hereby
unconditionally, irrevocably and permanently waives any and all rights the
Company may have under Section 5(a) and Section 5(c) of the Certificate of
Designations.
3. Transfers; Legends. Prudential hereby agrees that if
it shall at any time or from time to time sell, transfer or otherwise dispose
of any Shares, any transferee, as a condition of the transfer shall, by written
agreement satisfactory to the Company and its counsel delivered to the Company
at least five business days prior to the proposed effective date of such
transfer, expressly assume all of Prudential's obligations, waivers, duties and
covenants under the Stock Purchase Agreement, the Second Stock Purchase
Agreement, the Letter Agreement and this Waiver (as each may have been amended
or modified, or any provisions thereof waived, and shall at such time be in
effect), including without limitation Prudential's obligations under this
paragraph 3 as to the Shares to be so transferred, and shall agree to so bind
its subsequent transferees.
As soon as practicable following the execution and
delivery hereof, the certificates currently evidencing the Shares are being
surrendered against delivery to Prudential of one or more certificates
evidencing a like aggregate number of Shares which, in addition to any other
legend placed upon such certificate(s), shall bear a legend to the following
effect:
"The securities represented by this certificate are
subject to certain provisions of an agreement, dated
April 12, 1990, and the provisions of an agreement,
dated February 28, 1995, each between the Corporation
and The Prudential Insurance Company of America, the
terms of which require the holder hereof to execute
certain unconditional and irrevocable waivers of
certain rights of the holder, including without
limitation the right to convert these securities into
Common Stock of the Corporation, to receive increased
dividends in certain circumstances and to vote in
respect of certain matters, and, under certain
circumstances, to consent to amendments of, or, at
the request of the Company, waivers with respect to,
the Certificate of Designations and amendments of
certain agreements to which the Corporation is a
party. Pursuant to said Agreement dated February 28,
1995 the Corporation and The Prudential Insurance
Company of America have entered into a further
agreement dated June 8, 1995 effecting certain
unconditional and irrevocable waivers with respect to
the Certificate of Designations. Copies of such
agreements are on file at the principal executive
offices of the Corporation."
4. Representations and Warranties. Each of Prudential
and the Company hereby represents and warrants that this Waiver has been duly
authorized, executed and
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delivered by it and is its valid and binding obligation. This Waiver shall be
binding upon and inure to the benefit of the Company and Prudential and their
successors and assigns.
IN WITNESS WHEREOF Prudential and the Company have caused this
Waiver to be duly executed as of the date first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ X.X. XXXX
Print Name: X.X. Xxxx
Title: Vice President
MAXUS ENERGY CORPORATION
By: /s/ XXXXX XXXXXXXXX
Print Name: Xxxxx Xxxxxxxxx
Title: Vice President
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