ASSIGNMENT OF DIVIDEND RIGHTS AGREEMENT BY AND AMONG REPSOL YPF, S.A. PETERSEN ENERGÍA, SA AND YPF S.A. entered into on February 21, 2008
Exhibit
7.08
BY
AND AMONG
REPSOL
YPF, ▇.▇.
▇▇▇▇▇▇▇▇
ENERGÍA, SA
AND
YPF
S.A.
entered
into on 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 the 21st day
of the month of February 2008, by and among:
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(i)
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▇▇▇▇▇▇▇▇
ENERGÍA, S.A., a business company established under the laws of the
Kingdom of Spain, herein represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in his capacity
as Managing Director, with legal domicile in Madrid, Plaza ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, 1, Torre Picasso (the “Assignor”)
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(ii)
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Repsol
YPF, S.A., a business company established under the laws of the Kingdom
of
Spain, herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó, in his capacity as
Executive President, with legal domicile in Madrid, ▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇ (the “Assignee”); and
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(iii)
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YPF
S.A., a business company established under the laws of the Republic
of
Argentina, herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó, in his capacity
as President, with legal domicile in the City of Buenos Aires, ▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ (“YPF” or the “Company” and
jointly with the Assignee and Assignor, the “Parties,” each one of them
indistinctly, a “Party”).
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WHEREAS:
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I.
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Today
the Assignee and Assignor signed a stock purchase and sale agreement
in
virtue of which the Assignee undertook to transfer to the Assignor
shares
representing 14.9% of the capital stock and votes of YPF (the “Stock
Purchase and Sale Agreement,” Clause 6.1).
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II.
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As
part of the payment of the price under the Stock Purchase and Sale
Agreement the Assignor assigns to the Assignee its right to receive
the
dividends to be distributed by the Company corresponding to the result
from the fiscal year ended on December 31, 2006 whose amount is $10.76
pesos per share. Specifically, the assignment of the rights on
the aforementioned dividend would be in payment of US$ 201,150,000
which
constitutes part of the total Price of the aforementioned Stock Purchase
and Sale Agreement.
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III.
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The
board of directors of YPF, S.A., in a meeting on February 6, 2008,
resolved
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“To
approve payment of a cash dividend of ten pesos and seventy-six centavos
($10.76) per share regardless of share classes, pursuant to the
authorities granted and the reservation established by the meeting
of
shareholders of April 13 2007, making such dividend available to
all
shareholders on February 29, 2008, or on a subsequent date which
results
from applying rules that govern in jurisdictions where the company’s stock
is listed. The exchange rate to be applied to the payments for
the ADR’s and the shareholders domiciled abroad, shall be that of the
close of the United States dollar in the free foreign exchange market
–
seller’s rate – forty-eight hours prior to the date the dividends are made
available in the Republic of
Argentina.”
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2
As
a
result, the Parties enter into this Dividend Rights Assignment Agreement (the
“Agreement”) pursuant to the terms and conditions established
below.
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1.
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Interpretation
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The
terms used in upper-case that are not defined in this Agreement
shall have
the meanings assigned to them in the Stock Purchase and Sale
Agreement.
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2.
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Objective
of the Agreement
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2.1
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As
part of the consideration for the Shares, pursuant to Article 6.1
of the
Stock Purchase and Sale Agreement, the Assignor irrevocably assigns
to the
Assignee, free of all liens, all of the rights to receive the dividends
to
be distributed by the Company corresponding to the result of the
fiscal
year ended on December 31, 2006, which in its capacity as Shareholder
might appertain to it, whose amount is $630,574,801 pesos (hereinafter,
the “Assigned Dividends”).
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2.2
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In
relation to payment of the Assigned Dividends, and as a sign of
transfer,
the Assignor places the Assignee in the same place, degree, and
priority. Therefore, the amounts corresponding to the Assigned
Dividends shall be paid free of all liens by the Company directly
to the
Assignee in the following account and with the following
details:
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PAYABLE
TO: [REDACTED]
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ABA
No: [REDACTED]
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SWIFT
CODE: [REDACTED]
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FOR
CREDIT TO: [REDACTED]
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SWIFT
CODE: [REDACTED]
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FAVOUR:
[REDACTED]
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ACCOUNT
NUMBER: [REDACTED]
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or
in any other account that the Assignee indicates. For the
effects of claiming and obtaining payment of the Assigned Dividends,
the
Assignor hereby grants the Assignee the authorities needed to claim
such
amount directly including, if applicable, the authority to
represent.
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2.3
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This
assignment of credit is made with pro soluto effects, the
Assignee delivering to the Assignor, by signing this Agreement,
the most
effective payment letter for the part of the price of the Stock
Purchase
and Sale Agreement which amounts to US$ 201,150,000, free of all
liens.
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2.4
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Given
that the amount of the Assigned Dividends has been set in Argentine
pesos,
if as a result of the exchange rate to be applied for the payment
thereof
on the date ordered by YPF’s Board of Directors (February 29, 2008), the
resulting amount of the Assigned Dividends at the United States
dollar
rate were, more or less, different from US$ 201,150,000, the Assignor
or
the Assignee shall be obligated, as the case may be, to pay the
other the
difference until reaching that exact amount. If an amount
payable by the Assignor results, the Assignee undertakes to include
such
difference in the financing it grants in the Vendor’s Loan. In
parallel, if an amount payable by the Assignee were to result,
the
Assignor agrees to deduct such difference from the financing granted
in
the Vendor’s Loan.
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3
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3.
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Notification
and Acceptance of the
Company.
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3.1
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Today
Caja de Valores S.A. is notified of the assignment of dividends contained
in this Agreement, in its capacity as registration agent and payment
agent
in order for it to record the assignment of the Assigned Dividends
in the
Company’s shareholders registry.
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3.2
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For
the sole effects of Articles 1459 and concordant of the Civil Code,
the
Company signs this instrument, taking cognizance of and providing
agreement to this assignment and its content, undertaking to pay
the
Assigned Dividends exclusively to the Assignee in the manner established
in Clause 2.2 of this Agreement.
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4.
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Representations
and Warranties
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4.1
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The
Assignee represents and warrants that
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(a)
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it
is a duly established Spanish company and its bylaws and capital
stock are
duly recorded in the corresponding registry;
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(b)
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it
has the capacity and authorizations, permits, licenses and/or concessions
needed to perform the commercial activity that it currently performs,
to
be the owner and to dispose of its assets and to enter into and perform
in
full its obligations under this Agreement;
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(c)
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the
formalization of this Agreement and the execution of the transactions
contemplated in it do not and shall not constitute default or a violation
of any contractual obligation validly contracted by the Assignor;
and
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(d)
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the
terms of this Agreement constitute valid and binding obligations
for the
Assignor.
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4.2
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The
Assignor represents and warrants that:
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(a)
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it
is a duly established Spanish company and its bylaws and capital
stock are
duly recorded in the corresponding registry;
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(b)
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it
has the capacity and authorizations, permits, licenses and/or concessions
needed to perform the commercial activity that it currently performs,
to
be the owner and to dispose of its assets and to enter into and perform
in
full its obligations under this Agreement;
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(c)
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it
is the legitimate owner of the right to receive from the Company
as
dividends the amount of $630,574,801 pesos and that such right is
not
subject to dispute, retention, a lien or distrainment and that it
can
freely assign this credit to the Assignee.
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(d)
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the
formalization of this Agreement and the execution of the transactions
contemplated in it do not and shall not constitute default or a violation
of any contractual obligation validly contracted by the Assignee;
and
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(e)
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the
terms of this Agreement constitute valid and binding obligations
for the
Assignee.
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4
5. Applicable
Law. Jurisdiction.
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5.1
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This
Agreement shall be governed and interpreted pursuant to the laws
of the
Republic of Argentina.
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5.2
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The
Parties expressly subject any disagreement or controversy that might
arise
on this Agreement or its execution, or that is related thereto, to
legal
arbitration, pursuant to the regulation established by the rules
and
regulations of the International Chamber of Commerce (hereinafter,
“CCI”), before three (3) arbitrators designated pursuant to the
provisions of this Agreement, the Parties expressly waiving any other
forum that might appertain to them.
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5.3
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The
Parties represent that they know and accept the rules and regulations
of
the CCI, pursuant to whose rules the arbitration procedure, if applicable,
shall be held. The arbitration procedure shall be held in the
Spanish language in the city of New York (United States of America),
in
the place named by the CCI.
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5.4
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The
legal arbitration shall be subject to Argentine Law and three (3)
arbitrators shall take cognizance of it. Vendor and Purchaser
shall designate one (1) arbitrator each, the third of them being
designated jointly by the arbitrators so designated. If the
first two (2) arbitrator cannot agree on the selection of the third
arbitrator, he shall be designated pursuant to the current regulations
of
the CCI. Likewise, the arbitration proceeding shall be
subjected to the rules and regulations of the CCI.
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5.5
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The
Parties shall request that the arbitrators include in the arbitration
decision, an express decision on the costs. The decision on
costs shall be proportional to the estimation of the claims of the
Parties
accepted in the arbitration decision.
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5.6
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The
arbitration shall in any case be final and the Parties shall be bound
to
perform and voluntarily obey the provisions of the arbitration decision,
within the timeframes that are established by common accord at the
start
of the arbitration proceeding. In the absence of agreement, the
provisions of the CCI Regulation shall apply.
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5.7
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Subsidiarily,
and if necessary, especially in relation to the execution of the
arbitration, the performance preliminary proceedings as well as requests
for injunctions or measures of any other type, the Parties subject
themselves, with an express waiver of any other forum that might
appertain
to them, to the Ordinary Courts of the City of Buenos
Aires.
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5
6. Partial
Invalidity
Any
judicial or administrative declaration of nullity of any of the clauses of
this
Agreement, shall not affect the effectiveness of the remaining clauses or
conditions, insofar as they are themselves valid. In such case, the
Parties shall make their best efforts to make the necessary changes for the
null
clauses or clauses that cannot be performed to be replaced with others that
faithfully respect the spirit of the agreed relationship.
7. Notifications
For
all
the effects related to this Agreement, the Parties shall be deemed validly
notified through a registered letter or certified letter with return receipt
requested or a letter with acknowledgment of receipt from the addressee sent
to
the following addresses:
Repsol
YPF:
▇▇▇▇▇
▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇)
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
Attention: Corporate
Director of Strategy and Development
With
a
copy to
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
Attention: Corporate
Director for Legal Matters
PESA:
▇▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇ ▇▇▇
▇▇▇▇ of Buenos Aires (Argentina)
Fax: (▇▇)
▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇
With
a
copy
Fax;
▇▇ ▇▇
▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇.
▇▇▇▇▇ Dacomo
YPF:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
C
1035 AAC
City of Buenos Aires (Argentina)
Fax:
(▇▇)
▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention:
Director for Legal Matters
6
These
addresses may only be modified upon prior written notice given to the other
Parties in the manner of notification established in this clause reporting
the
new address.
In
witness
whereof, three (3) copies of the same tenor are signed, one for each one of
the
Parties, in the place and on the date indicated in the heading.
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REPSOL
YPF, ▇.▇.
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▇▇▇▇▇▇▇▇
ENERGÍA, S.A.
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▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó
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▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey
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YPF
S.A.
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▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó
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7