AGREEMENT By and among Repsol YPF, S.A. And PETERSEN ENERGÍA Pty Ltd MR. ENRIQUE ESKENAZI MR. SEBASTIÁN ESKENAZI MR. MATÍAS ESKENAZI STOREY MR. EZEQUIEL ESKENAZI STOREY February 21, 2008
Exhibit
7.09
By
and among
Repsol
YPF, S.A.
And
▇▇▇▇▇▇▇▇
ENERGÍA Pty Ltd
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
February
21, 2008
"This
is a
convenience translation into English of a Spanish-language original
document. This translation is without legal effect and, in the event
of any discrepancy with the Spanish-language original document, the
Spanish-language original shall prevail."
1
In
Madrid,
on February 21, 2008
By
and Among
Party
of the first part,
|
(1)
|
Of
the first part Repsol YPF, S.A., parent company of Grupo
Repsol YPF (hereinafter, “Repsol YPF”), established
pursuant to Spanish laws on November 12, 1986 in virtue of public
articles
of incorporation granted before the notary public of Madrid, ▇▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Fraguero on the same date with number 4,293 of those of
his
Protocol, a company duly registered in the Commercial Registry
of Madrid
at Volume 7063, 6058 of Section 3rd
of the
Companies Book, Folio 119, Page M-72,059-1. Repsol YPF has its
corporate domicile at ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
and its tax
identification code (CIF), ▇-▇▇▇▇▇▇▇▇, is
current.
|
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó, of age of majority, married, a
Spanish national, with professional domicile in Madrid, ▇▇▇▇▇ ▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and in virtue of Spanish National Identification
Document
number 40.824.513-L, current, in virtue of a power of attorney
granted on
October 29, 2004, before the Notary of Madrid ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
with
number 2,889 of his protocol.
|
|
|
Hereinafter
Repsol YPF shall be called “Repsol
YPF.”
|
|
|
Party
of the second part,
|
|
(1)
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of age of majority, married, an Argentine national,
of
age of majority, married, with professional domicile in Buenos
Aires
(Argentina), Avenida ▇▇▇▇▇▇▇ ▇▇▇▇ 2,748, 7th,
and holder
of Argentine passport no. ▇▇▇▇▇▇▇▇▇, current, and N.I.E. [Alien
National
Identification Document] number X-9298901-R,
current.
|
|
(2)
|
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an Argentine national, of age of majority, divorced,
with domicile in Buenos Aires (Argentina), Avenida ▇▇▇▇▇▇▇ ▇▇▇▇ 2,748,
7th,
and
holder of Argentine passport no. ▇▇▇▇▇▇▇▇▇, current and N.I.E.
number
X-9298838-F, current.
|
|
(3)
|
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, an Argentine national, of age of majority,
married, with professional domicile in Acassuso, Buenos Aires (Argentina),
and holder of Argentine passport no. ▇▇▇▇▇▇▇▇▇, current and N.I.E.
number
X-9298890-J, current.
|
|
(4)
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an Argentina national, of age of majority,
single, with professional domicile in Acassuso, Buenos Aires (Argentina)
and holder of Argentine passport no. ▇▇▇▇▇▇▇▇▇,
current.
|
|
(5)
|
▇▇▇▇▇▇▇▇
ENERGÍA, Pty Ltd, a company established pursuant to the Laws of Australia,
duly registered with the Securities and Investments Commission
(“Securities and Investments Commission”) with company number
128,147,419 and tax identification number N-8001058
J.
|
2
The
natural persons herein represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in virtue of a
power of attorney granted in Argentina before the Notary of the City of Buenos
Aires, Mr. ▇▇▇▇▇▇ ▇▇▇▇ Buasso, on February 11, 2008, duly
apostilled.
For
its
part ▇▇▇▇▇▇▇▇ ENERGÍA Pty Ltd is represented by its Directors, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Storey and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in virtue of the provisions of its
corporate bylaws.
Hereafter
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be referred to as “Messrs.
▇▇▇▇▇▇▇▇” and ▇▇▇▇▇▇▇▇ ENERGÍA Pty Ltd as
“Holdings.”
Hereinafter
Repsol YPF, Messrs. ▇▇▇▇▇▇▇▇ and Holdings shall be referred to jointly as
the
“Parties,” and each one of them individually as a
“Party.”
WHEREAS
|
I.
|
Today,
Grupo Repsol YPF, Messrs. ▇▇▇▇▇▇▇▇, and PESA enter into diverse
agreements
related to the acquisition of shares of the Company. In
particular, Grupo Repsol YPF and PESA enter into a Purchase and
Sale
Agreement and a Shareholders’ Agreement and Grupo Repsol YPF and Messrs.
▇▇▇▇▇▇▇▇, the Option Agreements.
|
|
II.
|
Simultaneously,
PESA and Holdings have entered into some financing agreements and
guaranties with diverse financial institutions. In particular,
the Senior Loan and the
Intercreditor.
|
|
III.
|
|
|
CLAUSES
|
|
1.
|
DEFINITIONS
|
For
purposes of this Agreement, the following terms shall have the meanings set
forth below. All the terms used in this Agreement which are not
defined in this stipulation, but which are set forth elsewhere in this
Agreement, shall have the meaning assigned to them elsewhere in this
Agreement.
|
•
|
“Shares”: shares
representing one hundred percent (100%) of the capital stock of
the
Proprietor Companies.
|
|
•
|
“Underlying
Shares”: shares of the Company acquired by (i)
exercise of the Option Agreements and/or (ii) by virtue of the
Purchase
and Sale Agreement and/or (iii) through an OPA and/or (iv) those
received
in virtue of exchanges resulting from changes in the par value
of the
shares or mergers, divestitures, and similar operations, increases
in
capital charged to reserves or profit or adjustments or any issuance
of
shares released, as a result of ownership of the shares indicated
in
sections (i) to (iii) above.
|
|
•
|
“Corporate
Acts”: notifications of meetings, attendance, and
voting in favor of the corresponding resolution, in the Meeting
and/or
Board of Directors.
|
3
|
•
|
“Shareholders’
Agreement”: the agreement entered into today by
▇▇▇▇▇▇▇▇ Energía, S.A. and Grupo Repsol YPF which regulates a) their
relations as shareholders of the Company and in particular, certain
rights
and obligations derived from their status as shareholders of the
Company;
and b) certain aspects related to the functioning of the Company
and its
organizational structure.
|
|
•
|
“Company”: the
Argentine company YPF S.A., registered with the Inspectorate General
of
Justice under No. 404 of book 108, volume A, with domicile at Avda.
Presidente ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
|
|
•
|
“Compensation”: is
the sum of money cited in Clause
2.4.
|
|
•
|
“Purchase
and Sale Agreement”: the purchase and sale agreement
signed today by Grupo Repsol YPF and ▇▇▇▇▇▇▇▇ Energía, S.A., in virtue of
which, Grupo Repsol YPF has transferred to ▇▇▇▇▇▇▇▇ Energía, S.A., shares
of the Company representing 14.9% of its capital
stock.
|
|
•
|
“Financing
Agreement”: all the agreements entered into by the
Proprietor Companies, including the Senior Loan, the Intercreditor,
the
Share Pledge Agreement, the Capital Increase Pledge Agreement and
Pledge
Agreements on the New Shares to finance the acquisition of Underlying
Shares, by such Proprietor Companies, excluding the Vendors Loan
signed
today by PESA and Repsol YPF and any financing agreement signed
by the
Proprietor Companies with Grupo Repsol YPF or its affiliates for
equivalent purposes.
|
|
•
|
“Option
Agreements”: the agreements entered into today by
Grupo Repsol YPF and Messrs. ▇▇▇▇▇▇▇▇, in virtue of which Grupo
Repsol YPF
has granted Messrs. ▇▇▇▇▇▇▇▇ an option to purchase shares of the
Company
representing up to 10.1% of its capital
stock.
|
|
•
|
“▇▇▇▇▇▇▇▇
Family”: Messrs. ▇▇▇▇▇▇▇▇ and/or their their heirs,
and individually and indistinctly, any of them, as well as (a)
the spouse
and/or straight-line descendents (including adopted children) of
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and/or ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; (b) an trust for the exclusive benefit
of any
person or any persons cited in clause (a), (c) any family trust,
partnership, or limited-liability company established for the sole
benefit
of any person or any persons cited in clause (a), or for succession
planning purposes, of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and/or (d)
their
heirs, testamentary executors named by the testator, executors
designated
by the probate court, curator or conservator of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and/or ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Storey, any of them, or a trust established in virtue
of any of
their ▇▇▇▇▇ after their deaths or
disability.
|
|
•
|
“Exercise
Date”: the date on which the Representative sends to
Repsol YPF or Repsol YPF sends the Representative the Notification
of
Exercise.
|
|
•
|
“Grupo
Repsol YPF”: the companies Repsol YPF, Repsol
Exploración, S.A., Caveant S.A. and Repsol YPF Capital,
S.L.
|
4
|
•
|
“Intercreditor”: the
Intercreditor Agreement signed today by and among PESA, Repsol
YPF, and
various financial institutions, in relation to the Senior
Loan.
|
|
•
|
“OPA”: public
offer to acquire shares of the Company under the terms and pursuant
to the
procedure stipulated in Article 7 of the Company’s corporate bylaws, as
such article is amended from time to
time.
|
|
•
|
“Options”: purchase
options granted through the Option
Agreements.
|
|
•
|
“Combined
Net Equity”: the arithmetic sum of the Individual Net
Equities of the Proprietor
Companies.
|
|
•
|
“Individual
Net Equity”: with respect to any Proprietor Company,
the net equity of such Proprietor Company determined pursuant to
current
accounting rules applicable thereto on the Exercise
Date.
|
|
•
|
“PESA”: ▇▇▇▇▇▇▇▇
Energía, S.A., a company established pursuant to Spanish laws, for the
effects of this operation, on July 23, 2007, in virtue of public
articles
of incorporation granted before the notary public of Madrid, Mr.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇ ▇▇▇▇ on the same date under number 2918 of those of his
Protocol, a company duly registered in the Commercial Registry
of Madrid
at Volume 24588, Folio 88, Page M-442504. ▇▇▇▇▇▇▇▇ Energía,
S.A. has its corporate domicile at Plaza ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1, ▇▇▇▇▇
Picasso,
38th
Floor, 28020, Madrid, and its tax identification code (CIF),
▇-▇▇▇▇▇▇▇▇.
|
|
•
|
“Acquisition
Price”: the sum of (i) the Combined Net Equity plus
(ii) five hundred (500) million United States dollars plus (iii)
the
aggregate amount of the Premium corresponding to each Underlying
Share
owned by the Proprietor Companies at the time the Acquisition Price
is
paid.
|
|
•
|
“Exercise
Price per Option Share”: the exercise price per share
stipulated in the Option
Agreements.
|
|
•
|
“Premium”: the
difference, if positive and for each Underlying Share, between
(a) the
average trade price of one share of the Company during the ninety
(90)
days prior to the Exercise Date in the market with the greatest
liquidity
where such shares are listed and (b) the price at which such Underlying
Share is reflected on the balance sheets of the Proprietor Companies
of
those Underlying Shares prepared pursuant to current accounting
standards
applicable to each Proprietor Share, at the Exercise
Date.
|
|
•
|
“Option
Termination Price”: the result of multiplying (a) the
difference, if positive, between (i) the average trade price of
one share
of the Company during the ninety (90) days prior to the Exercise
Price in
the market with the greatest liquidity where such shares are listed
and
(ii) the Exercise Price per Option Share, at that date by (b) the
number
of shares of the Company pending acquisition under the Option Agreements
at the Exercise Date. If the difference between (i) and (ii)
were zero (0) or less than zero (0), the Option Termination Price
shall
be, in total, one United States dollar (US$
1).
|
|
•
|
“Holdings
Companies”: ▇▇▇▇▇▇▇▇ Energía Pty Ltd as well as the
other shareholder companies of the Proprietor
Companies.
|
5
|
•
|
“Proprietor
Company”: PESA or any legal person owning Underlying
Shares.
|
|
•
|
“Senior
Loan”: the financing agreement signed
by PESA with certain financial institutions today for PESA to acquire
the
Underlying Shares.
|
|
•
|
“Option
Rights Holders”: the Eskenazi Family and/or any
natural or legal persons to whom the Options have been
assigned.
|
The
terms
that are used in singular shall have an equivalent meaning when used in plural,
and vice versa. Any reference in this Agreement to shares or
participations in a certain legal person shall include both the shares, the
parts of interest, and any other form of participation in the capital of
such
legal person, as well as any certificates issued by such legal person or
any
third party representing shares, parts of interest or a participation in
such
legal person, including without implying limitation, “ADS’s”, “ADR’s” and any
other certificate of deposit or custody for the shares, parts of interest,
or
participations in such legal person.
2. OBLIGATIONS
OF REPSOL YPF
Exclusively
if any of the following events occurs (“Events”) within the 5
years after the date of this Agreement:
|
(A)
|
Repsol
YPF were not to maintain directly or indirectly through controlled
companies an ownership interest greater than or equal to fifty
point zero
one percent (50.01%) of the capital stock of the Company, without
considering the shares of the Company owned by Grupo Repsol YPF
that are
subject to performance of the Option Agreement part of such 50.01%
in any
case, except in the case stipulated in the second paragraph of
Clause 6.2
of the Shareholders’ Agreement; or
|
|
(B)
|
Grupo
Repsol YPF were not to perform the Corporate Acts for the Company
(i) to
approve the distribution as dividends of ninety percent (90%) of
its
profit (“utilidades”) for the prior fiscal year or (ii) to make payment of
such dividends on two (2) occasions each year or (iii) to distribute
a
special dividend of eight hundred and fifty million United States
dollars
(US$ 850,000,000.00) to be paid: (a) 50% during 2008 (25%
during the first half and 25% during the second half); and (b)
the other
50% during 2009 (25% during the first half and 25% during the second
half), provided that the Proprietor Companies have performed, for
their
part, the Corporate Acts with respect to such dividends, under
the same
terms.
|
|
2.1
|
REPSOL
YPF undertakes to perform the following
acts:
|
|
2.1.1
|
(a)
With respect to PESA, if any of the Events has occurred, and (i)
the
conditions agreed in Article 15.6 a) of the Intercreditor were
to occur,
Repsol YPF undertakes to exercise the rights it has under such
Clause and
to acquire the Senior Loan in its entirety and to become the sole
holder
of the rights thereunder with respect to PESA; or (ii) the conditions
stipulated in Article 15.6 a) of the Intercreditor were not to
occur,
Repsol YPF undertakes to immediately pay, itself or to cause a
third party
to pay, the financial institutions, all the amounts owed by PESA
under the
Senior Loan under the conditions established in Article 2.04a)
thereof,
and acquire the rights of the financial institutions thereunder
by
subrogation; and
|
6
|
|
(b)
with respect to the other Proprietor Companies, to immediately
pay, itself
or to cause a third party to pay, the financial institutions all
the
amounts owed under any Finance Agreement, acquiring the rights
of the
financial institutions thereunder by
subrogation.
|
|
2.1.2
|
Terminate
all collateral arrangements granted by the Holdings Companies,
the Parties
agreeing that at that time the Financing Agreements, as well as
any other
right or encumbrance that exists in favor of the financial institutions
under the Senior Loan and/or any other Financing Agreements, shall
be
terminated, such that the Shares are free of charges and liens
on
ownership and possession of the Holdings Companies for the sole
purpose of
their transfer to Repsol YPF.
|
|
2.1.3
|
Acquire
the Shares at the Acquisition Price and pay the Holdings Companies
such
Acquisition Price and the Option Rights Holders, the Option Termination
Price.
|
|
2.2
|
For
its part, once Repsol YPF has performed what is stipulated in
section 2.1.1 above and in exchange for performance of the provisions
of
sections 2.1.2 and 2.1.3 has been
verified.
|
|
2.2.1
|
the
Holdings Companies undertake to sell the Shares to Repsol YPF against
receipt of the Acquisition Price;
and
|
|
2.2.2
|
the
Option Rights Holders undertake to waive the Options and the Option
Agreements shall be deemed terminated against receipt of the Option
Termination Price.
|
|
2.3
|
The
acts stipulated in sections 2.1.1., 2.1.2, and 2.2 shall be performed
simultaneously, within a period of fifteen (15) days from the Exercise
Date.
|
|
2.4
|
If
the events contemplated in point 2.1 do not occur, Repsol YPF shall
pay
the Holdings Companies an amount equal to the Acquisition Price,
as
compensation (the “Compensation”) for the transfer by the Holdings
Companies to Repsol YPF of such rights as may appertain to it against
the
Proprietor Companies or against the financial institutions derived
from or
related to the Financing Agreement and for the waiver by the Holdings
Companies of any claim against the Proprietor Companies and against
Repsol
YPF derived from a breach of the provisions
hereof.
|
|
3.
|
PROCEDURE
|
|
3.1
|
If
any of the Parties considers that any of the Events has occurred,
it shall
report such circumstances to the other Party (the “Notification of
Exercise”).
|
|
|
In
the case of the Representative, such Notification of Exercise shall
indicate the Exercise Price and the Option Termination Price that
it
considers applicable and it shall include (i) the financial documentation
and information used for the calculations including the balance
sheet at
the Exercise Date, (ii) an explanation of the procedure followed
to
calculate them and (iii) copies of the same financial statements
that the
Holdings Companies have sent to the financial institutions pursuant
to the
Financing Agreements.
|
7
|
3.2
|
Once
the Notification of Exercise from the Representative has been received
by
Repsol YPF the latter shall have a period of ten (10) calendar
days to
state whether (i) it accepts (a) the occurrence of the Act and
(b) the
Exercise Price and/or the Option Termination Price, included in
the
Notification of Exercise; or if (ii) it disagrees with any of
them.
|
|
|
If
the Notification of exercise is made by Repsol YPF, the other Party
shall
have a period of ten (10) days to (a) state whether it does or
does not
accept the occurrence of the Event and if it accepts it (b) propose
the
Exercise Price and the Option Termination
Price.
|
|
|
Once
the response to the Notification of Exercise is received by Repsol
YPF, it
shall again have a period a another ten days to state whether it
accepts
the Exercise Price and the Option Termination Price proposed or
(ii)
whether it disagrees with any of
them.
|
|
3.3
|
If
both Parties were to accept the Exercise Price and/or the Option
Termination Price such accepted price shall be final and binding
on the
Parties.
|
|
3.4
|
In
case of discrepancy, the Parties shall subject themselves to the
Arbitration stipulated in Clause 6.2 of this
Agreement.
|
|
4.
|
REPRESENTATIVE
|
|
4.1
|
Messrs.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Energía Pty Ltd designate as representatives for the
effects of making the Notification of Exercise, indistinctly, ▇▇.
▇▇▇▇▇
Dacomo or ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, or any other person that they designate
from
time to time, pursuant to the notifications
clause.
|
|
5.
|
OTHER
STIPULATIONS
|
|
5.1
|
Notices
|
|
5.1.1
|
Any
notices and communications that may or must be made by and among
the
Parties related to this Agreement, shall always be made in writing
by
notarized communication or another procedure that proves the delivery
and
receipt thereof by the addressee.
|
|
|
For
the effects of notices, the Parties indicate the following
addresses:
|
|
(i)
|
If
sent to Messrs. ▇▇▇▇▇▇▇▇:
|
|
|
To
the attention of: ▇▇. ▇▇▇▇▇ Dacomo and/or ▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Address: ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
|
|
|
Fax
number: ▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇
|
|
|
to
▇▇▇▇▇▇▇▇ Energía Pty Ltd
|
|
|
To
the attention of: ▇▇▇▇▇
▇▇▇▇
|
|
|
Address: ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Fax
number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇
|
8
|
(ii)
|
If
addressed to Repsol YPF:
|
|
|
▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇)
|
|
|
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
|
|
|
Attention: Corporate
Director of Corporate Strategy and
Development
|
|
|
With
a copy to
|
|
|
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
|
|
|
Attention: Corporate
Director of Legal Services
|
|
5.1.2
|
Only
notices sent to the addresses and in the manner indicated above
shall be
deemed received. Notices sent to the new address of any of the
Parties shall only take effect if the Party addressee thereof has
notified
the other Party in advance of a change of address notifying it
pursuant to
this stipulation.
|
|
5.2
|
Assignment
|
|
|
None
of the Parties may assign in whole or in part the rights and obligations
derived from this Agreement to any third party except if expressly
agreed
in writing in advance by the other Party, except for Messrs. ▇▇▇▇▇▇▇▇
to
companies one hundred percent (100%) held by the ▇▇▇▇▇▇▇▇ Family
which
become Holdings Companies or Option Rights
Holders.
|
|
5.3
|
Taxes
and expenses
|
|
|
Each
one of the Parties shall bear its own taxes and expenses of any
type
payable for the granting and execution of this
Agreement.
|
|
5.5
|
Modifications
|
|
|
This
Agreement may only be modified through a written document signed
by the
Parties that explicitly refers to this
Agreement.
|
|
5.6
|
Severability
|
|
|
If
any of the Stipulations of this Agreement, or any stipulation included
herein in the future, were or were to become null or impossible
to
perform, the validity or enforceability of the other Stipulations
of this
Agreement shall not be affected by such circumstance, except if
the
efficacy hereof depends thereon. It shall be construed that the
null or impossible-to-perform stipulation shall be replaced by
an adequate
and equitable stipulation which, insofar as legally permissible,
approximates insofar as possible the intention and objective of
the
aforementioned null or impossible-to-execute
stipulation.
|
9
|
5.7
|
Initialing
of the Agreement
|
|
|
The
Parties expressly authorize Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in behalf of
Grupo Repsol YPF, and Mr. ▇▇▇▇▇ ▇▇▇▇▇▇ Dacomo, on behalf of PESA,
to
initial each and every one of the pages of this Agreement, including
Appendices, and copies thereof.
|
|
5.8
|
Timeframes
|
|
5.8.1
|
The
timeframes established in number of days stipulated in this Agreement
shall begin to run on the day after that indicated as a reference
date.
|
|
5.8.2
|
The
timeframes indicated in weeks shall be calculated from day of the
week to
day of the week and those indicated in months or years shall be
calculated
from day to day.
|
|
5.8.3
|
The
expiration date, which shall expire at twenty-four hundred hours,
shall be
deemed included in all timeframes.
|
|
6.
|
APPLICABLE
LAW AND JURISDICTION
|
|
6.1
|
Applicable
Law
|
|
6.1.1
|
This
Agreement shall be governed and interpreted pursuant to the provisions
of
Spanish law.
|
|
6.2
|
Jurisdiction
|
|
6.2.1
|
The
Parties expressly subject any disagreement or controversy that
might arise
on this Agreement or its execution, or which is related to it,
to legal
arbitration, pursuant to the regulation established by the rules
and
regulations of the International Chamber of Commerce (hereinafter,
“CCI”), before three (3) arbitrator designated pursuant
to the provisions of this Agreement, the Parties expressly waiving
any
other forum which might appertain to
them.
|
|
6.2.2
|
The
Parties state they know and accept the rules and regulations of
the CCI,
pursuant to whose rules the arbitration proceeding shall be held,
if
applicable.
|
|
6.2.3
|
The
arbitration proceeding shall be held in Spanish in the city of
New York
(United States of America), in the place designated by the
CCI.
|
|
6.2.4
|
The
legal arbitration shall be subject to Spanish law and three (3)
arbitrators shall take cognizance of it. Grupo Repsol YPF and
the Beneficiary shall designate one (1) arbitrator each, the third
of them
being designated jointly by the arbitrators so designated. If
the first two (2) arbitrators cannot agree on the selection of
the third
arbitrator, he shall be designated pursuant to the current regulations
of
the CCI.
|
|
6.2.5
|
Likewise,
the arbitration proceeding shall be subject to the rules and regulations
of the CCI.
|
|
6.2.6
|
The
Parties shall request that the arbitrators include in the arbitration
decision an express decision on costs. The decision on costs
shall be proportional to the estimation of the claims of the Parties
contained in the arbitration
proceeding.
|
10
|
6.2.7
|
The
arbitration shall in all cases be final and the Parties are bound
to
perform and to voluntarily obey the provisions of the arbitration
decision, within the timeframes set by common accord at the start
of the
arbitration proceeding. On lack of agreement, the provisions of
the CCI Regulation shall be
applicable.
|
|
6.2.8
|
Subsidiarily,
and if necessary, especially in relation to the forced execution
of the
arbitration, the holding of the preparatory proceedings as well
as the
request for injunctions or measures of any other type, the Parties
subject
themselves, with express waiver of any other forum that might appertain
to
them, to the Courts and Tribunals of the city of Madrid or of Buenos
Aires, at the discretion of the Party complainant or
petitioner.
|
And
in
witness of agreement, the Parties sign this Agreement in six equally identical
copies, one for each one of the Parties, in the place and on the date indicated
in the heading.
|
REPSOL
YPF, S.A.
|
For
Messrs. ▇▇▇▇▇▇▇▇
|
||
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó
|
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇
ENERGÍA Pty Ltd.
|
▇▇▇▇▇▇▇▇
ENERGÍA Pty Ltd.
|
||
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
11