UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported):
December
31, 2008
Gran
Tierra Energy Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Nevada
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000-52594
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98-0479924
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(State or Other
Jurisdiction of
Incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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300,
611 – 10
th
Avenue
S.W.
Calgary,
Alberta, Canada T2R 0B2
(Address
of Principal Executive Offices, Including Zip Code)
(403)
265-3221
(Registrant’s
Telephone Number, Including Area Code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry
into a Material Definitive Agreement.
In
connection with an internal corporate restructuring of Gran Tierra Energy Inc.
(the “Company”), on January 1, 2009, the Company contributed (a) all of its
equity interests in Argosy Energy, LLC, a wholly-owned subsidiary of the Company
(“AELLC”), and (b) all of the partnership interests of Gran Tierra Energy
Colombia, Ltd. (the “Partnership”) owned by the Company as a limited partner of
the Partnership, to GTE Colombia Holdings LLC, a wholly-owned subsidiary of the
Company (“GTE LLC”). Prior to such contributions, the Company
owned in excess of 99% of the partnership interests in the Partnership as a
limited partner. AELLC owns the remaining partnership interests in
the Partnership as the general partner thereof. In connection with
such restructuring and contributions, the Company and its subsidiaries entered
into the following agreements (collectively hereinafter referred to as the
“Restructuring Agreements”):
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·
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Amendment
No. 3 to Colombian Participation Agreement, dated as of December 31, 2008,
by and among the Partnership, the Company and Crosby Capital, LLC
(“Amendment No. 3”);
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·
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Amendment
No. 1 and Waiver to Credit Agreement, dated as of January 1, 2009, by and
among the Partnership, the Company, AELLC and Standard Bank Plc as
majority Bank and administrative agent (“Amendment No.
1”);
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·
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Release
of Partnership Pledge Agreement, dated as of January 1, 2009, by and among
the Company, AELLC and Standard Bank Plc as administrative
agent;
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·
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Release
of GP Pledge Agreement, dated as of January 1, 2009, by and between the
Company and Standard Bank Plc as administrative
agent;
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·
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Partnership
Pledge Agreement, dated as of January 1, 2009, by and among GTE LLC, AELLC
and Standard Bank Plc as administrative agent;
and
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·
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GP
Pledge Agreement, dated as of January 1, 2009, by and between GTE LLC and
Standard Bank Plc as administrative
agent.
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Pursuant
to the terms of Amendment No. 3, the parties thereto agreed to amend that
certain Colombian Participation Agreement, dated as of June 22, 2006, by and
among the Partnership, the Company and Crosby Capital, LLC (as previously
amended on November 1, 2006 and July 3, 2008, the “Participation Agreement”) to
(a) provide that the Company and its affiliates may dispose of their ownership
interests in the Partnership under the circumstances described in Amendment No.
3, (b) require the Company to provide Crosby with certain additional financial
information pursuant to the conditions described in Amendment No. 3, and (c)
extend the timeframe during which the Company has an obligation to provide a
letter of credit to Crosby Capital, LLC under the Participation
Agreement. Pursuant to the terms of Amendment No. 3, Crosby Capital,
LLC also consented to the Company’s internal corporate
restructuring.
Pursuant
to the terms of Amendment No. 1, Standard Bank Plc, in its capacity as majority
bank and administrative agent under that certain Credit Agreement, dated as of
February 22, 2007, by and among the Partnership, AELLC, the Company and Standard
Bank Plc (the “Credit Agreement”), consented to certain aspects of the Company’s
internal corporate restructuring. Also pursuant to the terms of
Amendment No 1, Standard Bank Plc, in its capacity as majority bank under the
Credit Agreement, (i) waived any default or event of default that arose or
may arise as a result of the Company’s failure to meet certain of its
obligations under the Credit Agreement and documents related thereto as a result
of certain aspects of the Company’s internal corporate restructuring and (ii)
waived certain requirements under the Credit Agreement regarding obligations of
the Company’s subsidiaries to become guarantors and obligors thereunder and to
pledge their interests in GTE LLC. Further, pursuant to Amendment No.
1, the parties thereto agreed to amend the terms of the Credit Agreement to
limit the business activities that certain of the Company’s subsidiaries and any
entity that directly owns any equity interest in AELLC or the Partnership may
perform.
In
connection with execution of Amendment No. 1, the Company, certain of its
subsidiaries and Standard Bank Plc as administrative agent under the Credit
Agreement also entered into (i) the Release of Partnership Pledge Agreement and
Release of GP Pledge Agreement to release certain collateral as was necessary to
allow the Company to complete certain aspects of its internal corporate
restructuring, and (ii) a replacement Partnership Pledge Agreement and GP Pledge
Agreement to restore such collateral upon competition of those aspects of the
restructuring.
The
foregoing description of the Restructuring Agreements does not purport to be
complete and is qualified in its entirety by reference to the Restructuring
Agreements, which are filed as exhibits hereto and incorporated into this report
by reference.
Item
9.01 Financial Statements and
Exhibits.
(d) Exhibits
10.1
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Amendment
No. 3 to Participation Agreement, dated as of December 31, 2008, by and
among Gran Tierra Energy Colombia, Ltd., Gran Tierra Energy Inc. and
Crosby Capital, LLC.
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10.2
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Amendment
No. 1 and Waiver to Credit Agreement, dated as of January 1, 2009, by and
among Gran Tierra Energy Colombia, Ltd., Gran Tierra Energy Inc., Argosy
Energy, LLC and Standard Bank Plc.
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10.3
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Release
of Partnership Pledge Agreement, dated as of January 1, 2009, by and among
Gran Tierra Energy Inc., Argosy Energy, LLC and Standard Bank
Plc.
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10.4
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Release
of GP Pledge Agreement, dated as of January 1, 2009, by and between Gran
Tierra Energy Inc. and Standard Bank Plc.
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10.5
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Partnership
Pledge Agreement, dated as of January 1, 2009, by and among GTE Colombia
Holdings LLC, Argosy Energy, LLC and Standard Bank Plc.
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10.6
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GP
Pledge Agreement, dated as of January 1, 2009, by and between GTE Colombia
Holdings LLC and Standard Bank
Plc.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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GRAN
TIERRA ENERGY INC.
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By:
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/s/ Martin H.
Eden
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Martin
H. Eden
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Chief
Financial Officer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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10.1
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Amendment
No. 3 to Participation Agreement, dated as of December 31, 2008, by and
among Gran Tierra Energy Colombia, Ltd., Gran Tierra Energy Inc. and
Crosby Capital, LLC.
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10.2
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Amendment
No. 1 and Waiver to Credit Agreement, dated as of January 1, 2009, by and
among Gran Tierra Energy Colombia, Ltd., Gran Tierra Energy Inc., Argosy
Energy, LLC and Standard Bank Plc.
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10.3
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Release
of Partnership Pledge Agreement, dated as of January 1, 2009, by and among
Gran Tierra Energy Inc., Argosy Energy, LLC and Standard Bank
Plc.
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10.4
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Release
of GP Pledge Agreement, dated as of January 1, 2009, by and between Gran
Tierra Energy Inc. and Standard Bank Plc.
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10.5
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Partnership
Pledge Agreement, dated as of January 1, 2009, by and among GTE Colombia
Holdings LLC, Argosy Energy, LLC and Standard Bank Plc.
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10.6
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GP
Pledge Agreement, dated as of January 1, 2009, by and between GTE Colombia
Holdings LLC and Standard Bank Plc.
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AMENDMENT
NO. 3
TO
COLOMBIAN
PARTICIPATION AGREEMENT
BY
AND AMONG
GRAN
TIERRA ENERGY COLOMBIA LTD.,
GRAN
TIERRA ENERGY INC.
AND
CROSBY
CAPITAL, LLC
DATED
AS
OF DECEMBER 31, 2008
AMENDMENT
NO. 3
TO
COLOMBIAN
PARTICIPATION AGREEMENT
This
Amendment No. 3 to Colombian Participation Agreement
(this “
Amendment
”)
is effective as of December 31, 2008 by and among
Gran Tierra
Energy Colombia Ltd.,
(the “
Partnership
”),
a Utah partnership (formerly known as
Argosy
Energy International
, a Utah limited partnership (“
Argosy
”)),
Gran
Tierra Energy Inc.
, a Nevada corporation (“
Gran
Tierra
”), and
Crosby
Capital,
LLC
, a
Texas limited liability company (“
Crosby
”). The
Partnership, Gran Tierra and Crosby are each individually referred to herein as
a “
Party
,”
and collectively as the “
Parties
.” All
capitalized terms not otherwise defined here in shall be given the meaning
assigned to such terms in that certain Colombian Participation Agreement, dated
as of June 22, 2006, by and among Argosy, Gran Tierra, and Crosby (the “
Original
Participation Agreement
”), as amended by Amendment No. 1 dated as of
November 1, 2006 (“
Amendment No.
1
”) and Amendment No. 2 dated as of July 3, 2008 (“
Amendment No.
2
”).
Recitals
Whereas
,
the Parties executed the Original Participation Agreement, Amendment No. 1 and
Amendment No. 2 and such Original Participation Agreement, as amended
by Amendment No. 1 and Amendment No. 2 is hereinafter referred to as the “
Agreement
”;
Whereas
,
Gran Tierra is engaged in a corporate restructuring described on
Exhibit A
hereto (the “
Corporate
Restructuring
”) which requires the consent of Crosby under the
Agreement;
Whereas
,
in connection with the proposed Corporate Restructuring, the Parties desire to
further amend the Agreement to confirm their rights and obligations thereunder
subsequent to the proposed Corporate Restructuring;
Whereas
,
Crosby desires to provide its consent to the Corporate Restructuring, which
consent shall become effective in accordance with the provisions of this
Amendment No. 3;
Whereas
,
pursuant to Section 13.4 of the Agreement, no modification or waiver of any
provision of the Agreement shall be effective unless set forth in writing signed
by the Parties; and
Whereas
,
effective as of December 18, 2008, the general partner of the Partnership as of
such date, Argosy Energy Corp., a Delaware corporation, converted into a
Delaware limited liability company, Argosy Energy, LLC.
Agreement
Now,
Therefore
, in consideration of the covenants and promises herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
1.
A
new Section 1.63 shall be added to the Agreement as follows:
1.63 “Indirect Subsequent
Partnership Sale”
has the meaning set forth in
Section
8.2
.
2.
A
new subsection 1.64 shall be added as follows:
1.64 “Parent”
shall
mean any entity that (i) owns directly or indirectly 51% or more of the
outstanding equity securities of Gran Tierra, or (ii) possesses directly or
indirectly the right to elect a majority of the board of directors of Gran
Tierra, or (iii) which acquires all or substantially all the assets of Gran
Tierra.
3.
A
new subsection 7.7 shall be added as follows:
7.7 Basic Financial
Information and Reporting
.
7.7.1 During
the term of this Agreement, Gran Tierra will maintain true books and records of
account in which full and correct entries will be made of all its business
transactions pursuant to a system of accounting established and administered in
accordance with U.S. GAAP consistently applied, and will set aside on its books
all such proper accruals and reserves as shall be required under U.S.
GAAP consistently applied.
7.7.2 During
the term of this Agreement, if each of Gran Tierra and its Parent (if any)
ceases to be a reporting issuer under Section 12 of the Securities Exchange Act
of 1934, as amended, and to the extent requested by Crosby, as soon as
practicable after the end of each fiscal year of Gran Tierra and its Parent (if
any), and in any event within one hundred eighty (180) days thereafter, Gran
Tierra will furnish such Investor a balance sheet of Gran Tierra, as at the end
of such fiscal year, and a statement of income and a statement of cash flows of
Gran Tierra, for such year, all prepared in accordance with U.S. GAAP
consistently applied, and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable
detail.
7.7.3
During the term of this Agreement, if each of Gran Tierra and its Parent (if
any) ceases to be a reporting issuer under Section 12 of the Securities Exchange
Act of 1934, as amended, and to the extent requested by Crosby, Gran Tierra will
furnish Crosby, as soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of Gran Tierra, and in
any event within sixty (60) days thereafter, a balance sheet of Gran Tierra as
of the end of each such quarterly period, and a statement of income and a
statement of cash flows of Gran Tierra for such period and for the current
fiscal year to date, prepared in accordance with U.S. GAAP consistently applied
, with the exception that notes need not be attached to such quarterly
statements and year-end audit adjustments need not be made.
7.7.4 Commencing
after January 1, 2009, if, during the term of this Agreement, the
Partnership becomes an obligor or guarantor under any bank financing or other
credit facility or Partnership interests or assets are pledged as security for
any obligations under a bank financing or other credit facility, then Gran
Tierra or the Partnership shall promptly provide to Crosby copies of all such
fully executed credit and financing agreements and any related security
documents.
4.
Section
6.2.1(b) of the Agreement shall be deleted in its entirety and replaced with the
following:
(b)
Term
: The
Initial Letter of Credit shall remain outstanding for a period of five years
from date of Closing. Such period is referred to herein as the “
Initial
Term
.”
5.
Section
6.3.2 shall be amended to add at the end of the existing text, a new
subsection 6.3.2(d) providing as follows:
(d) and
absence of any borrowings under any bank financing or other credit facility with
respect to which the Partnership is an obligor or guarantor, or with respect to
which any Partnership interests or assets have been pledged as security for
obligations thereunder.
6.
A
new subsection 6.8 shall be added as follows:
6.8 Performance by
Affiliates.
Notwithstanding anything to the contrary provided
herein, Gran Tierra shall be permitted to cause any of its affiliates to perform
the obligations of Gran Tierra under this Section 6, including without
limitation, procuring and delivering Initial Letters of Credit and Letters of
Credit.
7.
Section
8.2 of the Agreement shall be deleted in its entirety and replaced with the
following:
8.2. Subsequent Sale of
the Partnership or its Successors.
Notwithstanding anything to
the contrary contained in this Agreement, (i) Gran Tierra and its Affiliates may
assign, sell, transfer or otherwise dispose of any ownership interest in the
Partnership (a “
Subsequent
Partnership Sale
”) or of any interest in a subsidiary of Gran Tierra that
owns, directly or indirectly, an ownership interest in the Partnership (an
“
Indirect Subsequent
Partnership Sale
”), to a Person that is not an Affiliate of Gran Tierra
without the consent of Crosby provided that Crosby receives prior written notice
of any such non Affiliate transaction and further provided that the
non-Affiliate transferee executes a counterpart to this Agreement and thereby
agrees to be bound by the terms hereof, including without limitation the
provisions of
Section
6
, and (ii) Gran Tierra and its Affiliates may consummate a Subsequent
Partnership Sale or an Indirect Subsequent Partnership Sale by, among and
between Affiliates of Gran Tierra without Crosby’s consent and without an
agreement by such Affiliate transferee to execute a counterpart to this
Agreement or to be bound by the terms hereof provided that Gran Tierra and the
Partnership shall continue to be bound by this Agreement and Gran Tierra shall
provide Crosby with written notice of any such Subsequent Partnership Sale or
Indirect Subsequent Partnership Sale reasonably promptly following the
consummation thereof.
8.
References
to the “Agreement” in the Original Participation Agreement shall be deemed to
include the Original Participation Agreement, as amended by Amendment No. 1,
Amendment No. 2 and this Amendment. Except as expressly modified or
otherwise as set forth therein or herein, the terms and conditions of the
Original Participation Agreement remain in full force and effect.
9.
This
Amendment does not alter or amend the Fifth Amended Extension Agreement dated
November 12, 2008 between the Parties. Moreover, the Parties do not
waive any of their rights pursuant to the Agreement or the Fifth Amended
Extension Agreement.
10.
Crosby
hereby consents to the Corporate Restructuring.
11.
Each
Party shall be responsible for and pay all of its own costs and expenses
incurred at any time in connection with this Amendment.
12.
This
Amendment may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the Parties and delivered to the
other Parties, it being understood that all Parties need not sign the same
counterpart.
13.
A
facsimile, telecopy or other reproduction of this Amendment may be executed by
one or more parties to this Amendment, and an executed copy of this Amendment
may be delivered by one or more parties to this Amendment by facsimile or
similar electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the
request of any party to this Amendment, all parties to this Amendment agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction of this Amendment.
14.
By
their respective signatures below, each Party represents and warrants to the
others, that it has full power and authority to execute and deliver this
Amendment, that all requisite internal approvals, including approval by the
board of directors or other managerial authority has been properly obtained, and
that this Amendment shall constitute the legal, valid and binding obligation of
such Party enforceable in accordance with its terms, except to the extent such
enforcement may be subject to bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors’ rights generally.
The
remainder of this page left empty.
In Witness
Whereof
, each of the undersigned has caused this Amendment No. 3 to be
executed as of the date first written above.
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By:
Argosy Energy, LLC (f/k/a Argosy Energy
Corp.),
its General Partner
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By:
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Gran
Tierra Energy Cayman Islands II, Inc., its Manager
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By:
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/s/ Dana Coffield
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Name:
Dana Coffield
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Title: President
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Gran
Tierra Energy Inc.
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By:
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/s/ Dana Coffield
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Name: Dana
Coffield
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Title: President
and Chief Executive Officer
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Crosby
Capital, LLC
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By:
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/s/ Jay Allen Chaffee
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Name: Jay
Allen Chaffee
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Title: President
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Exhibit
A
Description
of Corporate Restructuring
All capitalized terms not otherwise
defined herein shall have the meaning assigned to such terms in the Amendment to
which this Exhibit A is an exhibit.
1.
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Gran
Tierra will form a new Cayman corporation, referred to as “
CFC
1
.” CFC 1 will be a wholly-owned direct subsidiary of
Gran Tierra.
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2.
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CFC
1 will form a new Cayman corporation, referred to as “
CFC
2
.” CFC 2 will be a wholly-owned direct subsidiary of
CFC 1.
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3.
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CFC
2 will form a new Canadian corporation structured as an Alberta ULC,
referred to as “
ULC
.” ULC
will be a wholly-owned direct subsidiary of CFC
2.
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4.
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Gran
Tierra will form a new Delaware limited liability company, referred to as
“
LLC
1
.” LLC 1 will initially be a wholly-owned direct
subsidiary of Gran Tierra.
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5.
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Prior
to the time that the Restructuring becomes effective (the “
Restructuring
Effective
Time
”), Argosy Energy Corp., a Delaware corporation and general
partner in the Partnership (“
AEI
”),
will convert (the “
AEI
Conversion
”) from a Delaware corporation into a newly formed
Delaware limited liability company (“
AEI
LLC
”) by simultaneously filing articles of organization and a
certificate of conversion with the Secretary of State of
Delaware.
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a)
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Existing
stock ownership in AEI will convert to membership interests in AEI LLC on
a pro rata basis.
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b)
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Gran
Tierra will own 100% of the outstanding stock of AEI immediately prior to
the AEI Conversion and will own 100% of the membership interest in AEI LLC
immediately following the AEI
Conversion.
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c)
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There
will be executed a Limited Liability Company Agreement providing for the
governance of AEI LLC. The sole Member of AEI LLC will be Gran
Tierra.
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6.
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At
the Restructuring Effective Time, Gran Tierra will transfer 100% of its
ownership interest in the Partnership and 100% of its ownership interest
in AEI LLC to LLC 1. As a result, as of the Restructuring
Effective Time:
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a) LLC
1 will hold 100% of the membership interest in AEI LLC.
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b)
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AEI
LLC will continue to be the general partner of the Partnership, holding a
.7413% interest therein.
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c)
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LLC
1 will become the limited partner of the Partnership, holding a 99.2857%
interest therein.
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d)
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LLC
1 will directly or indirectly control 100% of the equity interests in the
Partnership.
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7.
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LLC
1 will create separate LLC 1 series (individually or collectively, the
“
LLC
Series
”).
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a)
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Each
Series will have separate rights, powers and duties and will be generally
treated as a separate entity under Delaware
law.
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b)
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Each
Series will represent rights to one of the nine Colombian Properties, as
defined below. Thus, for example, Series 1 may represent rights to the
interests in the Santana Block and Series 2 may represent rights to the
interests in the Guauyaco block. As
such:
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i.
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Series
1 will have rights, exclusive to other Series, in the assets in the
Santana Block and the income derived
therefrom.
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ii.
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No
other Series will have a claim of right to the assets of or income derived
from the Santana block.
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iii.
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Liability
of Series 1 will be limited to the assets of the Santana
block.
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c) There
will be a total of nine separate LLC Series created under LLC 1, as
follows:
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i.
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Three
LLC Series will be created, each representing one of the three Colombian
production properties (the “
Colombian
Production Properties
”), as
follows:
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·
Santana
block – 35% economic interest;
·
Guayuyaco
block – 35% economic interest; and
·
Chaza
block – 50% economic interest.
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ii.
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Six
additional LLC Series will be created, each representing one of the six
Colombian Exploration Properties (the “
Colombian
Exploration Properties
” and together with the Colombian Production
Properties, the “
Colombian
Properties
”) as follows:
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·
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Rio
Magdalena – 100% economic interest (currently farming out 60% of economic
interest);
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·
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Talora
– 20% economic interest (currently farming out whole
interest);
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·
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Mecaya
– 15% economic interest (currently farming out whole
interest);
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·
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Azar
– 40% economic interest (currently farming out 50-80% of economic
interest);
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·
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Putumayo
West A – Currently under evaluation but if converted to E&E contract,
portion to be farmed out; and
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·
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Putumayo
West B – Negotiating E&E contract; portion will be farmed
out.
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d)
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All
assets and other rights held in any of the Colombian Properties are the
result of contracts to which the Partnership is a
party.
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i.
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The
Partnership will continue to be the party to such agreements following the
Restructuring Effective Time.
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ii.
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No
assignment or other transfer of any such agreement or rights provided
thereunder will occur as a result of the
Restructuring.
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e)
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Collectively,
the nine LLC Series will represent ownership of 100% of the interests in
the Colombian Properties and thus 100% of the assets of the
Partnership.
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8.
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The
partnership agreement of the Partnership will be amended and restated in
connection with the Restructuring primarily to cause the Partnership to
account separately for each of the nine Colombian Properties related to
each of the nine LLC Series.
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9.
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Each
of the LLC Series will enter into an indemnity agreement (the “
Indemnity
Agreement
”).
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a)
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The
parties to the Indemnity Agreement will be each of the nine LLC Series,
AEI LLC, and the Partnership.
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b)
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Under
the Indemnity Agreement, each respective LLC Series will indemnify all
other LLC Series against judgments or liabilities not related to the
assets held by such other LLC
Series.
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c)
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Under
the Indemnity Agreement, each of the nine LLC Series will indemnify the
Partnership and AEI LLC against losses arising from assets of such LLC
Series.
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10.
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Additionally,
the Indemnity Agreement will include a
guaranty.
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a)
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The
guarantors will be Gran Tierra and CFC 1 as the members of the Series and
each guarantor will guarantee any obligations of any of the LLC Series
owned by such guarantor arising from the Indemnity
Agreement.
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11.
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At
the Restructuring Effective Time, Gran Tierra will transfer its interests
in the three LLC Series related to the three Colombian Production
Properties to CFC 1.
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a)
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The
transfer will be made as an additional capital contribution by Gran Tierra
to CFC 1, its wholly-owned foreign
subsidiary.
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b)
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No
consideration will be received by Gran Tierra in return for such
contribution.
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c)
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The
end result of such transfers will be that profits derived from the
Colombian Production Properties will be earned by and attributed to a
Cayman entity, CFC 1.
|
|
d)
|
Interests
in the other six series of LLC 1, attributable to the Colombian
Exploration Properties, will be treated as continuing to be held by Gran
Tierra.
|
12.
|
At
the Restructuring Effective Time, Gran Tierra Energy Inc., an Alberta
corporation (“
GT
CAN
”) will transfer all management agreements to which GT CAN is a
party (but not lease agreements for property and equipment) and all of its
employees to ULC.
|
13.
|
Gran
Tierra will amend its credit facility agreement and related agreements
(the “
Credit
Facility
”) with Standard Bank to terminate certain existing pledges
created thereunder and to create new pledges granted by newly formed
entities to properly reflect the post-Restructuring
structure.
|
14.
|
In
a separate and subsequent action Gran Tierra may assign the Credit
Facility to CFC 1.
|
EXECUTION
VERSION
AMENDMENT
NO. 1 TO CREDIT AGREEMENT
This
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “
Amendment
”) is
entered into as of January 1, 2009, by and among GRAN TIERRA ENERGY COLOMBIA,
LTD., a Utah limited partnership (Registered No. 2110646-0180) (the “
Partnership
”), ARGOSY
ENERGY, LLC, a Delaware limited liability company (f/k/a Argosy Energy Corp., a
Delaware corporation) (Registered No. 3234977) (the “
GP
”), GRAN TIERRA
ENERGY INC., a Nevada corporation (Registered No. C13734-2003) (the “
Borrower
”), and
STANDARD BANK PLC as the Majority Bank (as defined in the Credit Agreement
referred to below) and the Administrative Agent (as defined in the Credit
Agreement referred to below).
WHEREAS,
the Partnership, the GP, the Borrower, the Majority Bank and the Administrative
Agent are parties to that certain Credit Agreement, dated as of February 22,
2007 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “
Credit
Agreement
”);
WHEREAS,
the Borrower is the direct and beneficial owner of all of the issued and
outstanding membership interests of the GP and 99.2857% of the issued and
outstanding partnership interests of the Partnership;
WHEREAS,
pursuant to a corporate reorganization (the “
Restructuring
”), the
GP converted from a Delaware corporation into a Delaware limited liability
company;
WHEREAS,
pursuant to the Restructuring, the Borrower desires to transfer all of its
interests in the Partnership and the GP to GTE Colombia Holdings LLC, a Delaware
limited liability company (the “
LLC
”), in exchange
for membership interests in the LLC;
WHEREAS,
pursuant to the Restructuring, the LLC desires to issue all of its limited
liability interests in nine separate series (each a “
Series
”) pursuant to
the laws of Delaware, each Series to hold 100% of the interest in one of nine
properties directly held by the Partnership, whereby six Series will be retained
by the Borrower and three Series will be contributed to Gran Tierra Energy
Cayman Islands Inc., a newly formed corporation organized as a wholly-owned
Subsidiary of the Borrower under the laws of the Cayman Islands (“
Cayman
One
”);
WHEREAS,
pursuant to the Restructuring, Cayman One desires to organize Gran Tierra Energy
Cayman Islands II Inc. as a new Subsidiary under the laws of the Cayman Islands
(“
Cayman Two
”)
and Cayman Two desires to organize Gran Tierra Energy Canada ULC as a new
Subsidiary under the laws of the Province of Alberta, Canada (the “
ULC
”);
and
WHEREAS,
the Administrative Agent and Majority Bank have agreed to consent to the
consummation of the foregoing transactions (collectively, the “
Specified
Transactions
”) pursuant to the terms and subject to the conditions set
forth below.
NOW,
THEREFORE, in consideration of the foregoing premises and mutual covenants
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereto hereby
agree as follows:
Section
1.
Definitions
. Unless
the context otherwise requires, capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement.
Section
2.
Waiver and
Consent
.
2.1
Consents
. Subject
to the satisfaction of the conditions precedent set forth in Section 4 of this
Amendment, each of the Administrative Agent and the Majority Bank hereby
consents to the consummation of the Specified Transactions.
2.2
Waivers
. The
Majority Bank hereby waives any Default or Event of Default which arose or may
arise as a result of any failure by the Borrower to meet obligations under
Sections 9.03(a), 9.05, 9.08, 9.13 and 9.15 of the Credit Agreement, and any
term or condition of any other Loan Document, solely to the extent such failure
is due to the consummation of all or any part of the Specified
Transactions. The Majority Bank hereby additionally waives the
requirements under Section 9.16 of the Credit Agreement that (a) the LLC, Cayman
One, Cayman Two and the ULC become Subsidiary Guarantors and Obligors under the
Credit Agreement and (b) the Borrower and Cayman Two pledge their interests in
the LLC, in each case for so long as Gran Tierra Energy Inc., a Nevada
corporation (Registered No. C13734-2003) remains the Borrower under the Credit
Agreement. It is hereby acknowledged and agreed that the foregoing
waivers shall not be deemed to be, nor construed as, a waiver of any other
Default or Event of Default that may now be in existence or that may hereafter
occur.
Section
3.
Amendments to Credit
Agreement
.
3.1
Amendments to
Preamble
.
(a) The
preamble of the Credit Agreement is hereby amended by deleting the reference to
“GRAN TIERRA ENERGY INC., a corporation organized under the laws of the State of
Nevada (Registered No. E0666052005-8)” and replacing it with “GRAN TIERRA ENERGY
INC., a corporation organized under the laws of the State of Nevada (Registered
No. C13734-2003)”.
(b) The
preamble of the Credit Agreement is hereby amended by deleting and replacing
references to “T2R OB2” with “T2R 0B2”.
3.2
Amendment to Definition of
“Security Documents”
. Section 1.01 of the Credit Agreement is
hereby amended by amending and restating the definition of “Security Documents”
in its entirety as follows:
“
Security Documents
”
shall mean, collectively, the Canadian Pledge Agreement, the Colombian Security
Documents, the Collection Account Pledge Agreement, the GP Pledge Agreement, the
Partnership Pledge Agreement and each of the security agreements, pledge
agreements and other instruments now or hereafter delivered to the
Administrative Agent pursuant to the foregoing or otherwise granting a Lien on
any Property of any Person to secure the obligations and liabilities of any
Obligor under any Loan Document, and all other filings required by applicable
law to be filed with respect to the security interests created pursuant to each
of the foregoing documents.
3.3
Amendment to Section
9
. Section 9 of the Credit Agreement is hereby amended by
adding the following Section 9.26:
9.26
Activities of Holding
Companies
. Each of GTE Colombia Holdings LLC, a Delaware
limited liability company (the “
LLC
”), Gran Tierra
Energy Cayman Islands Inc., a corporation organized under the laws of the Cayman
Islands (“
Cayman
One
”), Gran Tierra Energy Cayman Islands II Inc., a corporation organized
under the laws of the Cayman Islands (“
Cayman Two
”), Gran
Tierra Energy Canada ULC, an unlimited liability company organized under the
laws of the Province of Alberta, Canada (the “
ULC
”), and any entity
directly owning or holding Capital Stock in the GP or the Partnership shall not
(a) conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any material business or operations other than (i) holding
(A) with respect to the LLC only, the Capital Stock of the GP or the Partnership
and their respective Subsidiaries, (B) with respect to Cayman One only, the
Capital Stock of the LLC and Cayman Two, and (C) with respect to Cayman Two
only, the Capital Stock of the ULC, (ii) performing its obligations and
activities under its organizational documents, (iii) with respect to Cayman Two
only, acting as general manager of the LLC and as manager of the series of
limited liability interests in the LLC established pursuant to Section 18-215 of
the Delaware Limited Liability Act, 6 Del. C. § 18-101,
et seq
., as amended from time
to time, (iv) issuing its own Capital Stock subject to the terms hereof, (v)
preparing reports to its equity holders, (vi) holding board of directors and
equity holders meetings, preparing partnership, corporate or limited liability
company records and other partnership, corporate or limited liability company
activities required to maintain its separate partnership, corporate or limited
liability company structure or to comply with applicable requirements of law or
the terms of its organizational documents, and (vii) activities and assets
incidental to the foregoing clauses (i) through (vi); (b) incur, create, assume
or suffer to exist any Indebtedness or other liabilities or financial
obligations; (c) incur, create, assume or suffer to exist any Lien upon any of
its property, whether now owned or hereafter acquired, other than pursuant to
the Loan Documents; (d) own, lease, manage or otherwise operate any material
properties or assets; or (e) directly own assets constituting an operating
business;
provided
that the
foregoing shall not prevent (x) the LLC, Cayman One, Cayman Two or the ULC from
complying with any obligation under that certain participation agreement, dated
as of June 22, 2006 (as amended through December 30, 2008, and as further
amended from time to time, so long as each such further amendment is not, taken
as a whole, materially adverse to the Banks, the “
Participation
Agreement
”), by and among the Partnership, the Borrower and Crosby
Capital LLC, or (y) the ULC from acting as an employer and engaging in and
performing such activities incidental thereto.
Section
4.
Conditions
Precedent
. The waiver referred to in Section 2.1 shall become
effective as of the date first above written,
provided
that on or
before such date:
(a) this
Amendment shall have been executed by the Partnership, the GP, the Borrower and
the Majority Bank and counterparts hereof as so executed shall have been
delivered to the Administrative Agent;
(b) the
LLC shall have executed and delivered to the Administrative Agent a pledge
agreement governed by the laws of the State of New York, dated as of the date
hereof, substantially in the form of the GP Pledge Agreement in effect prior to
the date hereof, granting in favor of the Administrative Agent for the ratable
benefit of the Secured Parties a first-priority security interest in all of the
interests in the GP;
(c) the
GP and the LLC shall have executed and delivered to the Administrative Agent a
pledge agreement governed by the laws of the State of New York, dated as of the
date hereof, substantially in the form of the Partnership Pledge Agreement in
effect prior to the date hereof, granting in favor of the Administrative Agent
for the ratable benefit of the Secured Parties a first-priority security
interest in all of the interests in the Partnership;
(d) the
Administrative Agent shall have received, and be reasonably satisfied in form
and substance with, a legal opinion from Cooley Godward Kronish LLP, Delaware
and New York counsel to the GP and the LLC; and
(e) both
before and immediately after giving effect to this Amendment and the
consummation of the Specified Transactions, all of the representations and
warranties set forth in
Section 5
below will
be true and correct.
Section
5.
Miscellaneous
5.1
Representations and
Warranties
. Each Obligor, by signing below, hereby represents
and warrants to the Administrative Agent and the Banks that:
(a) each
Obligor is duly organized, validly existing and in good standing (if such
concept exists under the laws of its jurisdiction of organization) under the
laws of its jurisdiction of organization;
(b) the
execution, delivery, and performance of this Amendment and the consummation of
the transactions contemplated hereby (i) are within their limited partnership,
limited liability company or corporate powers, as applicable, (ii) have been
duly authorized by all necessary limited partnership, limited liability company
or corporate action, as applicable, (iii) do not conflict with its
constitutional documents or any applicable law or any of its contractual
obligations except for any such conflict with applicable laws or contractual
obligations that would not have a Material Adverse Effect, and (iv) will not
result in the creation or imposition of any Lien prohibited by the Credit
Agreement;
(c) no
consent, authorization, or approval of, and except for filings and recordings in
respect of the Liens created pursuant to the Security Documents and except for
customary 8-K filings, no filings and registrations with, any Governmental
Authority, or any securities exchange, is necessary for the execution and
delivery of this Amendment or the performance of its obligations
hereunder;
(d) each
Obligor has executed and delivered this Amendment, and upon satisfaction of the
conditions set forth in Section 4 above, this Amendment constitutes a legal,
valid, and binding obligation, enforceable against each Obligor in accordance
with its terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(e) both
before and after giving effect to this Amendment, no Default or Event of Default
(for the avoidance of doubt, other than that contemplated pursuant to Section
2.2 above) has occurred and is continuing or is reasonably expected to occur
immediately following the consummation of the transactions contemplated by this
Amendment; and
(f) to
the extent not already made above, each of the other representations and
warranties set forth in Section 8 of the Credit Agreement is true and correct in
all material respects as of the date hereof after giving effect to this
Amendment (unless stated to relate solely to an earlier date, in which case such
representation or warranty shall be true and correct as of such earlier
date).
5.2
Expenses
. As
provided in the Credit Agreement, but without limiting any terms or provisions
thereof, each Obligor agrees to pay on demand, upon presentation of a statement
of account, all reasonable and documented out-of-pocket costs and expenses
incurred by the Administrative Agent in connection with the preparation,
negotiation, and execution of this Amendment, including without limitation the
reasonable fees and expenses of the Administrative Agent’s legal counsel,
regardless of whether this Amendment becomes effective in accordance with the
terms hereof.
5.3
Waiver of
Claims
. Each Obligor hereby waives and releases each of the
Secured Parties and their respective directors, officers, employees, attorneys,
affiliates and subsidiaries from any and all claims, offsets, defenses and
counterclaims of which such Obligor is aware that currently exist and can now be
asserted to reduce or eliminate all or any part of the obligation of each
Obligor to make any payments to the Secured Parties as provided in the Loan
Documents, such waiver and release being made with full knowledge and
understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto. Each of the Partnership and the
GP further agrees and acknowledges that its guarantee obligations under Section
6 of the Credit Agreement shall remain in full force and effect and shall be
unaffected by the terms of this Amendment.
5.4
Credit Agreement
Unaffected
. Each reference to the Credit Agreement in any Loan
Document shall hereafter be construed as a reference to the Credit Agreement as
amended hereby. Except as herein otherwise specifically provided, all
provisions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and be unaffected hereby. This Amendment is a
Loan Document.
5.5
Entire
Agreement
. This Amendment, together with the Credit Agreement
and the other Loan Documents constitute the entire agreement among the parties
with respect to the subject matter hereof, the Credit Agreement and such other
Loan Documents and supersede all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter
hereof.
5.6
Counterparts
. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Amendment by signing any such counterpart, including by
facsimile or pdf (with an original subsequently delivered).
5.7
Governing
Law
. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
5.8
Submission to
Jurisdiction
. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN, NEW YORK CITY FOR THE PURPOSE OF ANY LEGAL PROCEEDINGS ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
5.9
Jury Trial
Waiver
. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER THIS
AMENDMENT.
[Signature
page follows.]
IN
WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the
date first above written.
|
OBLIGORS
|
|
|
|
GRAN
TIERRA ENERGY INC.
|
|
|
|
By:
|
/s/ Martin Eden
|
|
|
Name:
Martin Eden
|
|
|
Title: Chief
Financial Officer
|
|
|
|
ARGOSY
ENERGY, LLC
|
|
(f/k/a
Argosy Energy Corp.)
|
|
|
|
By:
|
Gran
Tierra Energy Cayman Islands II, Inc.,
|
|
|
its
Manager
|
|
By:
|
/s/ Martin Eden
|
|
|
Name:
Martin Eden
|
|
|
Title: Chief
Financial Officer
|
|
|
|
GRAN
TIERRA ENERGY COLOMBIA, LTD.
|
|
|
|
By:
|
Argosy
Energy, LLC (f/k/a Argosy Energy
Corp.),
its General Partner
|
|
By:
|
Gran
Tierra Energy Cayman Islands II,
Inc.,
its Manager
|
|
By:
|
/s/ Martin Eden
|
|
|
Name:
Martin Eden
|
|
|
Title: Chief
Financial Officer
|
|
|
|
Amendment
No. 1 to Credit Agreement
|
MAJORITY BANK
|
|
|
|
STANDARD
BANK PLC
|
|
|
|
By:
|
/s/
Martin Revoredo
|
|
|
Name:
Martin Revoredo
|
|
|
Title: Senior
Vice President
|
|
|
|
By:
|
/s/ Roderick L. Fraser
|
|
|
Name:
Roderick L. Fraser
|
|
|
Title:
Managing Director, Global Head of Energy
Finance
|
|
ADMINISTRATIVE AGENT
|
|
|
|
STANDARD
BANK PLC
|
|
|
|
By:
|
/s/
Martin Revoredo
|
|
|
|
|
|
Title: Senior
Vice President
|
|
|
|
By:
|
/s/ Roderick L. Fraser
|
|
|
|
|
|
Title:
Managing Director, Global Head of Energy
Finance
|
|
Amendment
No. 1 to Credit Agreement
EXECUTION
VERSION
RELEASE
OF PARTNERSHIP PLEDGE AGREEMENT
This
RELEASE OF PARTNERSHIP PLEDGE AGREEMENT, dated as of January 1, 2009 (this
“
Release
”), is
by and among GRAN TIERRA ENERGY INC., a Nevada corporation (Registered No.
C13734-2003) (the “
Borrower
”), ARGOSY
ENERGY, LLC, a Delaware limited liability company (f/k/a Argosy Energy Corp., a
Delaware corporation) (Registered No. 3234977) (the “
Guarantor
”, together
with the Borrower, each a “
Pledgor
” and,
collectively, the “
Pledgors
”), and
STANDARD BANK PLC, as administrative agent under the Credit Agreement (as
hereinafter defined) acting for and on behalf of the Secured Parties (as defined
in the Credit Agreement) (in such capacity, the “
Pledgee
”).
WHEREAS,
the Borrower is the limited partner of, and direct and beneficial owner of
99.2857% of the issued and outstanding partnership interests of, GRAN TIERRA
ENERGY COLOMBIA, LTD., a Utah limited partnership (Registered No. 2110646-0180)
(the “
Issuer
”);
WHEREAS,
the Guarantor is the general partner of, and direct and beneficial owner of
0.7143% of the issued and outstanding partnership interests of, the
Issuer;
WHEREAS,
in order to secure its obligations under and in connection with that certain
Credit Agreement, dated as of February 22, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”),
among the Borrower, the Guarantor, the Issuer, certain of their affiliates, the
banks from time to time party thereto and the Pledgee, the Pledgors entered in
that certain Partnership Pledge Agreement, dated as of February 22, 2007 (the
“
Partnership Pledge
Agreement
”), granting a security interest in the Pledged Property (herein
defined as defined in the Partnership Pledge Agreement);
WHEREAS,
pursuant to a corporate reorganization (the “
Restructuring
”), the
Borrower proposes to transfer its interest in the Pledged Property to GTE
Colombia Holdings LLC (the “
LLC
”) and whereupon,
the LLC, together with the Guarantor, shall execute and deliver to the Pledgee a
pledge agreement (as the same may be amended, restated, substituted or
supplemented from time to time, the “
LLC Pledge
Agreement
”) governed by the laws of the State of New York, dated on the
date hereof, substantially in the form of the Partnership Pledge Agreement,
granting in favor of the Pledgee for the ratable benefit of the Secured Parties
a first-priority security interest in all of the Pledged Property;
WHEREAS,
the Pledgee has agreed to consent to the consummation of the Restructuring and,
in connection therewith, to release the security interest in the Pledged
Property created under the Partnership Pledge Agreement, pursuant to the terms
and subject to the conditions set forth below;
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the parties hereto hereby agree as follows:
Section
1.
Release of Security
Interest
. Solely in order to facilitate the Restructuring and
subject to the Pledgors’ performance of their undertakings under Section 2
below, the Pledgee hereby releases and terminates its security interest granted
under the Partnership Pledge Agreement in the Pledged Property. The
Pledgee shall execute and deliver to the Pledgors all releases or other
documents, including, without limitation, Uniform Commercial Code (“
UCC
”) amendment or
termination statements, reasonably necessary or desirable for the release of the
security interest on the Pledged Property.
Section
2.
LLC Pledge
Agreement
. The Borrower hereby undertakes to cause the LLC,
and the Guarantor hereby undertakes, to execute and deliver to the Pledgee the
LLC Pledge Agreement promptly upon the consummation of the
Restructuring. Notwithstanding the foregoing, if the Restructuring is
not effective or the LLC and Guarantor fail to execute and deliver to the
Pledgee the LLC Pledge Agreement, the Pledgors shall immediately re-execute and
deliver to the Pledgee a pledge agreement substantially in the form of the
Partnership Pledge Agreement, granting in favor of the Pledgee for the ratable
benefit of the Secured Parties a first-priority security interest in all of the
Pledged Property.
Section
3.
Binding
Effect
. This Release and all of the provisions hereof shall be
binding upon each party hereto and their respective successors and
assigns.
Section
4.
Governing Law, Waivers and
Consents
.
(a) The
validity, interpretation and enforcement of this Release and any dispute arising
out of the relationship between the Pledgors and the Pledgee or any Secured
Party, whether in contract, tort, equity or otherwise, shall be governed by the
laws of the State of New York, including, without limitation, Section 5-1401 of
the New York General Obligations Law.
(b) The
Pledgors hereby irrevocably consent and submit to the non-exclusive jurisdiction
of the Supreme Court of the State of New York, sitting in the Borough of
Manhattan, the City of New York and the United States District Court for the
Southern District of New York, whichever the Pledgee may elect, and waive any
objection based on venue or forum non conveniens with respect to any action
instituted therein arising under this Release or in any way connected with or
related or incidental to the dealings of the Pledgors and the Pledgee or any
Secured Party in respect of this Release or the transactions related hereto or
thereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agrees that any dispute with respect to
any such matters shall be heard only in the courts described above.
(c) Each
Pledgor hereby irrevocably consents to the service of process out of any of the
courts mentioned in Section 4(b) above in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid to
such Pledgor at its respective address referred to in Section 12.02 of the
Credit Agreement.
(d) EACH
PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (i) ARISING UNDER THIS RELEASE OR ANY OF THE OTHER LOAN
DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR THERETO IN RESPECT OF THIS RELEASE OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. EACH PLEDGOR HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT THE PLEDGORS, ANY SECURED PARTY OR THE PLEDGEE MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS RELEASE WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PLEDGORS TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
Section
5.
Further
Assurances
. Each party hereto agrees that it will, at any time
and from time to time, upon the written request of any other party, execute and
deliver such further documents and do such further acts and things, as the
requesting party may reasonably request in order to effect the purposes of this
Release;
provided
that any
such action undertaken by the Pledgee shall be at the sole cost and expense of
the Pledgors.
Section
6.
Counterparts
. This
Release may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of
this Release by facsimile or electronic copy shall be effective as delivery of a
manually executed counterpart of this Agreement.
[Signature
page follows.]
IN
WITNESS WHEREOF, this Release has been duly executed and delivered as of the
date first above written.
PLEDGORS
|
|
|
GRAN
TIERRA ENERGY INC.
|
|
|
|
|
|
|
By:
|
|
|
Name:
Martin Eden
|
|
Title: Chief
Financial Officer
|
|
|
|
|
|
|
ARGOSY
ENERGY, LLC
|
(f/k/a
Argosy Energy Corp.)
|
|
|
|
By:
|
Gran
Tierra Energy Cayman Islands II, Inc.,
|
|
its
Manager
|
|
|
|
|
|
|
|
By:
|
/s/
Martin Eden
|
|
|
Name:
Martin Eden
|
|
|
Title: Chief
Financial
Officer
|
Release
of Partnership Pledge Agreement
|
|
|
STANDARD
BANK PLC,
|
as
Bank and as administrative agent for the
Secured
Parties
|
|
|
|
|
By:
|
|
|
|
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Title: Senior
Vice President
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By:
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Title:
Managing Director, Global Head of Energy
Finance
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Release of Partnership Pledge
Agreement
EXECUTION
VERSION
RELEASE
OF GP PLEDGE AGREEMENT
This
RELEASE OF GP PLEDGE AGREEMENT, dated as of January 1, 2009 (this “
Release
”), is by and
among GRAN TIERRA ENERGY INC., a Nevada corporation (Registered No. C13734-2003)
(the “
Pledgor
”), and
STANDARD BANK PLC, as administrative agent under the Credit Agreement (as
hereinafter defined) acting for and on behalf of the Secured Parties (as defined
in the Credit Agreement) (in such capacity, the “
Pledgee
”).
WHEREAS,
the Pledgor is the direct and beneficial owner of all of the issued and
outstanding membership interests of ARGOSY ENERGY, LLC, a Delaware limited
liability company (f/k/a Argosy Energy Corp., a Delaware corporation)
(Registered No. 3234977) (the “
GP
”);
WHEREAS,
in order to secure its obligations under and in connection with that certain
Credit Agreement, dated as of February 22, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “
Credit Agreement
”),
among the Pledgor, the GP, certain of their affiliates, the banks from time to
time party thereto and the Pledgee, the Pledgor entered in that certain GP
Pledge Agreement, dated as of February 22, 2007 (the “
GP Pledge
Agreement
”), granting a security interest in the Pledged Property (herein
defined as defined in the GP Pledge Agreement);
WHEREAS,
pursuant to a corporate reorganization (the “
Restructuring
”), the
Pledgor proposes to transfer the Pledged Property to GTE Colombia Holdings LLC
(the “
LLC
”) and
whereupon, the LLC shall execute and deliver to the Pledgee a pledge agreement
(as the same may be amended, restated, substituted or supplemented from time to
time, the “
LLC Pledge
Agreement
”) governed by the laws of the State of New York, dated on the
date hereof, substantially in the form of the GP Pledge Agreement, granting in
favor of the Pledgee for the ratable benefit of the Secured Parties a
first-priority security interest in all of the Pledged Property;
WHEREAS,
the Pledgee has agreed to consent to the consummation of the Restructuring and,
in connection therewith, to release the security interest in the Pledged
Property created under the GP Pledge Agreement, pursuant to the terms and
subject to the conditions set forth below;
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of the parties hereto hereby agree as follows:
Section
1.
Release of Security
Interest
. Solely in order to facilitate the Restructuring and
subject to the Pledgor’s performance of its undertakings under Section 2 below,
the Pledgee hereby releases and terminates its security interest granted under
the GP Pledge Agreement in the Pledged Property. The Pledgee shall
execute and deliver to the Pledgor all releases or other documents, including,
without limitation, Uniform Commercial Code (“
UCC
”) amendment or
termination statements, reasonably necessary or desirable for the release of the
security interest on the Pledged Property.
Section
2.
LLC Pledge
Agreement
. The Pledgor hereby undertakes to cause the LLC to
execute and deliver to the Pledgee the LLC Pledge Agreement promptly upon the
consummation of the Restructuring. Notwithstanding the foregoing, if
the Restructuring is not effective or the LLC fails to execute and deliver to
the Pledgee the LLC Pledge Agreement, the Pledgor shall immediately re-execute
and deliver to the Pledgee a pledge agreement substantially in the form of the
GP Pledge Agreement, granting in favor of the Pledgee for the ratable benefit of
the Secured Parties a first-priority security interest in all of the Pledged
Property.
Section
3.
Binding
Effect
. This Release and all of the provisions hereof shall be
binding upon each party hereto and their respective successors and
assigns.
Section
4.
Governing Law, Waivers and
Consents
.
(a) The
validity, interpretation and enforcement of this Release and any dispute arising
out of the relationship between the Pledgor and the Pledgee or any Secured
Party, whether in contract, tort, equity or otherwise, shall be governed by the
laws of the State of New York, including, without limitation, Section 5-1401 of
the New York General Obligations Law.
(b) The
Pledgor hereby irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, sitting in the
Borough of Manhattan, the City of New York and the United States District Court
for the Southern District of New York, whichever the Pledgee may elect, and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Release or in any way connected
with or related or incidental to the dealings of the Pledgor and the Pledgee or
any Secured Party in respect of this Release or the transactions related hereto
or thereto, in each case whether now existing or hereafter arising, and whether
in contract, tort, equity or otherwise, and agrees that any dispute with respect
to any such matters shall be heard only in the courts described
above.
(c) The
Pledgor hereby irrevocably consents to the service of process out of any of the
courts mentioned in Section 4(b) above in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid to
the Pledgor at its address referred to in Section 12.02 of the Credit
Agreement.
(d) THE
PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (i) ARISING UNDER THIS RELEASE OR ANY OF THE OTHER LOAN
DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR THERETO IN RESPECT OF THIS RELEASE OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. THE PLEDGOR HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT THE PLEDGOR, ANY SECURED PARTY OR THE PLEDGEE MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS RELEASE WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PLEDGOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
Section
5.
Further
Assurances
. Each party hereto agrees that it will, at any time
and from time to time, upon the written request of any other party, execute and
deliver such further documents and do such further acts and things, as the
requesting party may reasonably request in order to effect the purposes of this
Release; provided that any such action undertaken by the Pledgee shall be at the
sole cost and expense of the Pledgor.
Section
6.
Counterparts
. This
Release may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of
this Release by facsimile or electronic copy shall be effective as delivery of a
manually executed counterpart of this Agreement.
[Signature
page follows.]
IN
WITNESS WHEREOF, this Release has been duly executed and delivered as of the
date first above written.
PLEDGOR
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GRAN
TIERRA ENERGY INC.
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By:
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/s/ Martin Eden
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Name:
Martin Eden
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Title: Chief
Financial Officer
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Release
of GP Pledge Agreement
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STANDARD
BANK PLC,
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as
Bank and as administrative agent for the
Secured
Parties
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By:
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/s/
Martin Revoredo
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Title: Senior
Vice President
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By:
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/s/ Roderick L. Fraser
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Title:
Managing Director, Global Head of Energy
Finance
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Release
of GP Pledge Agreement
PARTNERSHIP PLEDGE
AGREEMENT
This
PARTNERSHIP PLEDGE AGREEMENT, dated as of January 1, 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
“
Agreement
”),
is made by GTE COLOMBIA HOLDINGS LLC, a limited liability company organized
under the laws of the State of Delaware (Registered No. 4635693) (the “
LLC
”), and ARGOSY
ENERGY, LLC, a limited liability company organized under the laws of the State
of Delaware (f/k/a Argosy Energy Corp., a Delaware corporation) (Registered No.
3234977) (the “
Guarantor
”), and each
other Person that may from time to time hereafter become a party hereto pursuant
to Section 10(k) (the LLC, the Guarantor and each such other person
individually, a “
Pledgor
” and,
collectively, the “
Pledgors
”), in favor
of STANDARD BANK PLC, in its capacity as administrative agent under the Credit
Agreement (as hereinafter defined) acting for and on behalf of the Secured
Parties (in such capacity, the “
Pledgee
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
each Pledgor is now the direct and beneficial owner of the issued and
outstanding partnership interests of GRAN TIERRA ENERGY COLOMBIA, LTD. (formerly
Argosy Energy International), a limited partnership organized under the laws of
the State of Utah (Registered No. 2110646-0180) (the “
Issuer
”), and in such
percentages, listed in Exhibit A hereto and made a part hereof;
WHEREAS,
pursuant to that certain Credit Agreement, dated as of February 22,
2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “
Credit Agreement
”),
among Gran Tierra Energy Inc. (the “
Borrower
”), the
Guarantor, the Issuer, the banks from time to time party thereto (the “
Banks
”) and the
Pledgee, the Pledgee and the Banks have entered into financing arrangements
pursuant to which the Banks may make loans and provide other financial
accommodations to the Borrower;
WHEREAS,
in order to induce the Banks to make loans and provide other financial
accommodations pursuant to the Credit Agreement, and to induce the Designated
Hedge Counterparty to enter into the Designated Hedging Agreement and for other
good and valuable consideration (the sufficiency of which each Pledgor hereby
acknowledges), each Pledgor has agreed to secure the prompt payment in full when
due of the Obligations by executing and delivering to the Pledgee this
Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Pledgor hereby agrees as follows:
1.
DEFINITIONS; RULES OF
INTERPRETATION
(a)
Definition of Terms Used
Herein
. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Credit Agreement. In
addition:
(i)
“
Issuer
” has the
meaning set forth in the recitals hereto.
(ii)
“
Obligations
” means
all amounts from time to time owing to the Secured Parties by the Obligors under
the Credit Agreement, including Section 6 thereof, this Agreement and any of the
other Loan Documents to which any Obligor is a party, in each case strictly in
accordance with the terms hereof and thereof.
(iii)
“
Partnership
Agreement
” means that certain Fourth Amended and Restated Limited
Partnership Agreement of the Issuer, dated January 1, 2009, as amended,
supplemented, amended and restated or otherwise modified from time to
time.
(iv)
“
Pledged Interests
”
means all of the partnership interests in the Issuer indicated in Exhibit A
hereto.
(v)
“
Pledged Property
” has
the meaning set forth in Section 2(a) hereto.
(vi)
“
UCC
” means the
Uniform Commercial Code as from time to time in effect in the State of New
York.
2.
GRANT OF SECURITY
INTEREST
(a)
As
collateral security for the prompt performance, observance and indefeasible
payment in full of all of the Obligations, each Pledgor hereby assigns and
pledges to the Pledgee, and grants to the Pledgee for itself and the benefit of
the Secured Parties, a security interest in and Lien upon the following
(collectively, the “
Pledged
Property
”):
(i)
its
Pledged Interests and all certificates (if any) at any time representing or
evidencing such Pledged Interests;
(ii)
all
of its present and future right to receive payment of money or other
distributions arising out of or in connection with the Pledged
Interests;
(iii)
all
of its right, title and interest in, to and under the Partnership Agreement,
including, without limitation, all of its right, title and interest as a partner
to participate in the operation or management of the Issuer;
(iv)
all proceeds of and to any of the property of such Pledgor described above,
including, without limitation, all causes of action, claims and warranties now
or hereafter held by such Pledgor in respect of any of the items listed above;
and
(v)
such
Pledgor’s books and records with respect to any of the foregoing.
(b)
This
Agreement is executed only as security for the Obligations and, therefore, the
execution and delivery of this Agreement shall not subject the Pledgee or any
Secured Party to, or transfer or pass to the Pledgee or any Secured Party, or in
any way affect or modify, the duties, obligations and liabilities of the
Pledgors under the Partnership Agreement or any related agreement, document or
instrument or otherwise. In no event shall the acceptance of this
Agreement by the Pledgee or the Secured Parties or the exercise by the Pledgee
or any Secured Party of any rights hereunder or assigned hereby, constitute an
assumption of any duty, liability or obligation of any Pledgor to, under or in
connection with the Partnership Agreement or any related agreements, documents
or instruments or otherwise.
3.
OBLIGATIONS
SECURED
The Lien
and other interests granted to the Pledgee for itself and the benefit of the
Secured Parties, pursuant to this Agreement shall secure the prompt performance
and payment in full of any and all of the Obligations.
4.
REPRESENTATIONS, WARRANTIES
AND COVENANTS
Each
Pledgor hereby represents, warrants and covenants with and to the Pledgee and
the Secured Parties the following as of the date hereof (all of such
representations, warranties and covenants being continuing so long as any of the
Obligations are outstanding):
(a)
The
Pledged Interests are duly authorized and validly existing and constitute such
Pledgor’s entire interest in the Issuer as of the date hereof and such Pledgor
is the registered owner of such Pledged Interests.
(b)
The
Pledgors are the holders of one hundred (100%) percent of the ownership
interests in, and are the only partners of, the Issuer.
(c)
The
Pledged Property pledged by such Pledgor hereunder is directly, legally and
beneficially owned by such Pledgor free and clear of all claims and Liens of any
kind, nature or description, other than those created pursuant to this Agreement
in favor of the Pledgee (for itself and for the benefit of the Secured Parties)
and other than Permitted Liens.
(d)
The
Pledged Property pledged by such Pledgor hereunder is not subject to any
restriction relative to the transfer thereof (other than applicable law) and the
Pledgor has the right to transfer the Pledged Property free and clear of any
Lien other than Permitted Liens.
(e)
The
Pledged Property pledged by such Pledgor hereunder is duly and validly pledged
to the Pledgee, no consent or approval of any governmental or regulatory
authority or of any securities exchange or the like, nor any consent or approval
of any other third party, was or is necessary to the validity and enforceability
of this Agreement, except as expressly set forth herein (other than applicable
securities laws which will apply in connection with an exercise of remedies
hereunder).
(f)
If
such Pledgor shall become entitled to receive or acquire, or shall receive any
partnership interest certificate, or option or right with respect to the Pledged
Interests (including without limitation, any certificate representing a
distribution or exchange of or in connection with reclassification of the
Pledged Interests) whether as an addition to, in substitution of, or in exchange
for any of the Pledged Property or otherwise, such Pledgor agrees to accept the
same as the Pledgee’s agent, to hold the same in trust for the Pledgee and to
deliver the same forthwith to the Pledgee or the Pledgee’s agent or bailee in
the form received, with the endorsement(s) of such Pledgor where necessary
and/or appropriate powers and/or assignments duly executed to be held by the
Pledgee or the Pledgee’s agent or bailee subject to the terms hereof, as further
security for the Obligations.
(g)
The
Pledged Interests pledged by such Pledgor hereunder are not and shall not at any
time hereafter be investment property or otherwise subject to Article 8 of the
UCC except as the Pledgee may otherwise expressly agree in
writing. As of the date hereof, there are no certificates or other
written instruments evidencing or representing the Pledged
Interests.
(h)
Such
Pledgor shall keep full and accurate books and records relating to the Pledged
Property pledged by such Pledgor hereunder and stamp or otherwise mark such
books and records in such manner as the Pledgee may in good faith require in
order to reflect the security interests granted by this Agreement.
(i)
Such
Pledgor shall not, without the prior consent of the Pledgee, directly or
indirectly, sell, assign, transfer, or otherwise dispose of, or grant any option
with respect to the Pledged Property, nor shall such Pledgor create, incur or
permit any further Lien with respect to the Pledged Property other than as
permitted in the Credit Agreement.
(j)
So
long as no Event of Default has occurred and is continuing, each Pledgor shall
have the right to exercise all partnership rights with respect to the Pledged
Property, except as expressly prohibited herein or in the other Loan Documents,
and to receive any distributions payable in respect of the Pledged Property (but
subject to terms of the Credit Agreement with respect thereto).
(k)
Such
Pledgor has delivered to the Pledgee a true, correct and complete copy of the
Partnership Agreement.
(l)
Other
than as permitted in the Credit Agreement, the Pledgors shall not permit the
Issuer, directly or indirectly, to (i) issue, sell, grant, assign, transfer
or otherwise dispose of, any additional partnership interests of the Issuer or
any option or warrant with respect to, or other right or security convertible
into, any additional partnership interests, now or hereafter authorized, unless
all such additional partnership interests, options, warrants, rights or other
such securities are made and shall remain part of the Pledged Property subject
to the pledge and security interest granted herein, (ii) take any action to
withdraw the authority of or to limit or restrict the authority of the Issuer’s
general partner to deal and contract with the Pledgee and to bind and obligate
the Issuer, or (iii) pay any interim distribution in cash or other assets
to any member or partner, except as permitted in the Credit
Agreement.
(m)
Such
Pledgor shall promptly notify the Pledgee in writing of the occurrence of any
event specified in the Partnership Agreement or the certificate of formation of
the Issuer that could reasonably be expected to result in the Issuer’s
dissolution or liquidation.
(n)
Such
Pledgor shall not, and shall not permit the Issuer, directly or indirectly, to,
amend, modify or supplement any of the provisions of the Partnership Agreement
or the certificate of formation of the Issuer without the prior written consent
of the Pledgee if any such amendment, modification or supplement could
reasonably be expected to affect any rights of the Pledgee or any Secured Party
hereunder or under any of the other Loan Documents.
(o)
In
accordance with the Partnership Agreement, each Pledgor hereby acknowledges and
agrees that the Pledgee or any of its successors and assigns (or any designee of
the Pledgee), shall, at the Pledgee’s option upon written notice to such Pledgor
of the Pledgee’s intent to be admitted itself (or to have any such successor,
assignee or designee admitted) as a partner of the Issuer at any time an Event
of Default exists or has occurred and is continuing, be admitted as a partner of
the Issuer without any further approval of the Pledgors and without compliance
by the Pledgee or any other person with any of the conditions or other
requirements of the Partnership Agreement and without conferring upon any
partner thereof any option (whether under the Partnership Agreement or
otherwise) to acquire the partnership interests so transferred to the Pledgee,
its successors or assigns, or its designees. Each Pledgor agrees to
take such other action and execute such further documents as the Pledgee may
reasonably request from time to time in order to give effect to the foregoing
provisions of this section.
(p)
Such
Pledgor shall furnish, or cause to be furnished, to the Pledgee such information
concerning the Issuer and the Pledged Property as the Pledgee may from time to
time reasonably request.
(q)
[Intentionally
Omitted]
(r)
Such
Pledgor shall not change its name or its jurisdiction of organization from that
existing as of the date of this Agreement, except upon 15 Business Days’ prior
written notice to the Pledgee and delivery to the Pledgee of copies of all filed
additional financing statements, and other documents (in each case, properly
executed) reasonably requested by the Pledgee to maintain the validity,
perfection and priority of the security interests provided for
herein.
(s)
Such
Pledgor waives to the extent permissible by applicable law, its rights under
Section 9-207 of the UCC. Each Pledgor agrees that the Pledged
Property, other collateral, or any other guarantor or endorser may be released,
substituted or added with respect to the Obligations, in whole or in part,
without releasing or otherwise affecting the liability of such Pledgor, the
pledge and security interests granted hereunder, or this
Agreement. The Pledgee, for and on behalf of itself and the Secured
Parties, is entitled to all of the benefits of a secured party set forth in
Section 9-207 of the UCC.
5.
[Intentionally
Omitted]
6.
NO ASSUMPTION OF
LIABILITIES
(a)
Nothing
herein shall be construed to make the Pledgee or any Secured Party liable as a
partner of the Issuer and the Pledgee or any Secured Party by virtue of this
Agreement or otherwise shall not have any of the duties, obligations or
liabilities of a partner of the Issuer. The parties hereto expressly
agree that this Agreement shall not be construed as creating a partnership or
joint venture among the Pledgee or any Secured Party and any Pledgor and/or the
Issuer.
(b)
By
accepting this Agreement, the Pledgee and the Secured Parties do not intend to
become a partner of the Issuer or otherwise be deemed to be a partner or
co-venturer with respect to any Pledgor or the Issuer either before or after an
Event of Default shall have occurred. The Pledgee and the Secured
Parties shall have only those powers set forth herein and shall assume none of
the duties, obligations or liabilities of any Pledgor or of a partner of the
Issuer. Neither the Pledgee nor any Secured Party shall be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(c)
The
acceptance by the Pledgee and the Secured Parties of this Agreement, with all of
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any Secured Party to appear in or defend
any action or proceeding relating to the Pledged Property to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expense or perform or discharge any obligation, duty or liability
hereunder or otherwise with respect to the Pledged Property.
7.
RIGHTS AND
REMEDIES
At any
time after an Event of Default exists or has occurred and is continuing, in
addition to all other rights and remedies of the Pledgee and the Secured
Parties, whether provided under this Agreement, the Credit Agreement, the other
Loan Documents, applicable law or otherwise, the Pledgee shall have the
following rights and remedies which may be exercised without notice to, or
consent by, any Pledgor except as such notice or consent is expressly provided
for hereunder or such notices which such Pledgor may not waive in accordance
with applicable law:
(a)
The
Pledgee, at its option, shall be empowered to exercise its continuing right to
instruct the Issuer in writing (or the appropriate transfer agent of the Pledged
Interests) to register any or all of the Pledged Interests in the name of the
Pledgee or in the name of the Pledgee’s nominee (including, without limitation,
any Secured Party) and the Pledgee may complete, in any manner the Pledgee may
deem expedient, any assignments or other documents heretofore or hereafter
executed in blank by the Secured Parties and delivered to the
Pledgee. After said written instruction, and without further notice,
the Pledgee shall have the exclusive right to exercise all voting and
partnership rights with respect to the Pledged Property, and exercise any and
all rights of conversion, redemption, exchange, subscription or any other
rights, privileges, or options pertaining to the Pledged Property as if the
Pledgee were the absolute owner thereof, including, without limitation, the
right to exchange, in its discretion, any and all of the Pledged Property upon
any merger, consolidation, reorganization, recapitalization or other
readjustment with respect thereto. Upon the exercise of any such
rights, privileges or options by the Pledgee, the Pledgee shall have the right
to deposit and deliver any and all of the Pledged Property to any committee,
depository, transfer agent, registrar or other designated agency upon such terms
and conditions as the Pledgee may determine, all without liability, except to
account for property actually received by the Pledgee. However, the
Pledgee shall have no duty to exercise any of the aforesaid rights, privileges
or options (all of which are exercisable in the sole discretion of the Pledgee)
and shall not be responsible for any failure to do so or delay in doing
so.
(b)
The
Pledgee may, in its good faith discretion (i) collect, foreclose, receive,
appropriate, setoff and realize upon any and all Pledged Property,
(ii) sell, lease, transfer, assign, deliver or otherwise dispose of any and
all Pledged Property (including entering into contracts with respect thereto,
public or private sales at any exchange, broker’s board, at any office of the
Pledgee or elsewhere) at such prices or terms as the Pledgee may deem
reasonable, for cash, upon credit or for future delivery, with the Pledgee
having the right to purchase the whole or any part of the Pledged Property at
any such public sale, all of the foregoing being free from any right or equity
of redemption of any Pledgor, which right or equity of redemption is hereby
expressly waived and released by each Pledgor (to the extent permitted by
applicable law). If notice of disposition of Pledged Property is
required by law, ten (10) days prior notice by the Pledgee to any Pledgor
designating the time and place of any public sale or the time after which any
private sale or other intended disposition of Pledged Property is to be made,
shall be deemed to be reasonable notice thereof and any other
notice. The Pledgee shall apply the cash proceeds of Pledged Property
actually received by the Pledgee from any sale, lease, foreclosure or other
disposition of the Pledged Property to payment of the Obligations then due, in
whole or in part and in accordance with the terms of Section 10 of the Credit
Agreement, and thereafter may hold such proceeds as cash collateral for the
Obligations not then due. Each Pledgor shall remain liable to the
Pledgee and the Secured Parties for the payment of any deficiency with interest
at the highest rate provided for in the Credit Agreement and agrees to indemnify
the Pledgee and the Secured Parties from all costs and expenses of collection or
enforcement incurred in good faith by each of them or on their behalf, including
reasonable attorneys’ fees and expenses, as provided in the Credit
Agreement.
(c)
Each
Pledgor recognizes that the Pledgee may be unable to effect a public sale of all
or part of the Pledged Property by reason of certain prohibitions contained in
the Securities Act of 1933, as amended, as now or hereafter in effect or in
applicable Blue Sky or other state securities law, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Pledged Property for their own account for investment and not
with a view to the distribution or resale thereof. If at the time of
any sale of the Pledged Property or any part thereof, the same shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933 (or other applicable state securities law), as then in effect, the Pledgee
in its sole and absolute discretion is authorized to sell such Pledged Property
or such part thereof by private sale in such manner and under such circumstances
as the Pledgee or its counsel may deem necessary or advisable in order that such
sale may legally be effected without registration. Each Pledgor
agrees that private sales so made may be at prices and other terms less
favorable to the seller than if such Pledged Property were sold at public sale,
and that the Pledgee has no obligation to delay the sale of any such Pledged
Property for the period of time necessary to permit the Issuer, even if the
Issuer would agree, to register such Pledged Property for public sale under such
applicable securities laws. Each Pledgor agrees that any private
sales made under the foregoing circumstances shall be deemed to have been made
in a commercially reasonable manner.
(d)
All
of the rights and remedies of the Pledgee and the Secured Parties, including,
but not limited to, the foregoing and those otherwise arising under this
Agreement, the Credit Agreement and the other Loan Documents, the instruments
comprising the Pledged Property, applicable law or otherwise, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as the Pledgee may deem expedient. No
failure or delay on the part of the Pledgee or any Secured Party in exercising
any of its options, powers or rights or partial or single exercise thereof,
shall constitute a waiver of such option, power or right.
8.
JURY TRIAL WAIVER; OTHER
WAIVERS AND CONSENTS; GOVERNING LAW
(a)
The
validity, interpretation and enforcement of this Agreement and any dispute
arising out of the relationship between any Pledgor and the Pledgee or any
Secured Party, whether in contract, tort, equity or otherwise, shall be governed
by the laws of the State of New York, including, without limitation, Section
5-1401 of the New York General Obligations Law.
(b)
Each
Pledgor hereby irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, sitting in the
Borough of Manhattan, The City of New York and the United States District Court
for the Southern District of New York, whichever the Pledgee may elect, and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Agreement or any of the other Loan
Documents or in any way connected with or related or incidental to the dealings
of any Pledgor and the Pledgee or any Secured Party in respect of this Agreement
or any of the other Loan Documents or the transactions related hereto or
thereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agrees that any dispute with respect to
any such matters shall be heard only in the courts described above (except that
the Pledgee and the Secured Parties shall have the right to bring any action or
proceeding against any Pledgor or its property in the courts of any other
jurisdiction that the Pledgee deems necessary or appropriate in order to realize
on any collateral at any time granted by the Borrower or any Pledgor to the
Pledgee or any Secured Party or to otherwise enforce its rights against any
Pledgor or its property).
(c)
Each
Pledgor hereby irrevocably designates, appoints and empowers CT Corporation as
its designee, appointee and agent to receive, accept and acknowledge for and on
its behalf, and in respect of its property, service of any and all legal process
which may be served in any action or proceeding. If for any reason CT
Corporation shall cease to be available to act as such, each Pledgor agrees to
designate a new designee, appointee and agent on the terms and for the purposes
of this provision satisfactory to the Pledgee. Each Pledgor hereby
irrevocably consents to the service of process out of any of the courts
mentioned in Section 8(b) above in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid to such
Pledgor at its respective address set forth on the signature pages
hereof.
(d)
EACH
PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR THERETO IN RESPECT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. EACH PLEDGOR HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PLEDGOR, ANY SECURED PARTY OR THE PLEDGEE MAY FILE
AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF PLEDGORS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e)
Neither
the Pledgee nor any Secured Party shall have any liability to any Pledgor
(whether in tort, contract, equity or otherwise) for losses suffered by such
Pledgor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Agreement, or any act,
omission or event occurring in connection herewith, unless with respect to the
Pledgee or any Secured Party, as applicable, it is determined by a final and
non-appealable judgment or court order binding on the Pledgee or such Secured
Party, as applicable, that the losses were the result of acts or omissions
constituting gross negligence or willful misconduct or bad faith of the Pledgee
or the relevant Secured Party, as applicable. In any such litigation,
the Pledgee and the Secured Parties shall be entitled to the benefit of the
rebuttable presumption that they acted in good faith and with the exercise of
ordinary care in the performance by them of the terms of the Credit Agreement
and the other Loan Documents. Each Pledgor: (i) certifies that
neither the Pledgee nor any Secured Party nor any representative, agent or
attorney acting for or on behalf of the Pledgee or any Secured Party has
represented, expressly or otherwise, that the Pledgee and the Secured Parties
would not, in the event of litigation, seek to enforce any of the waivers or
other agreements for their benefit provided for in this Agreement or any of the
other Loan Documents and (ii) acknowledges that in entering into this Agreement
and the other Loan Documents, the Pledgee and the Secured Parties are relying
upon, among other things, the waivers and certifications set forth in this
Section 8(e) and elsewhere herein and therein.
9.
RELEASE OF
COLLATERAL
(a)
Upon
termination of the Commitments and payment and satisfaction in full (in cash or
other immediately available funds) of all Loans and all other Obligations and,
in respect of contingent Letter of Credit Liabilities, after cash collateral has
been deposited with respect thereto or after such Letter of Credit Liabilities
have been fully guaranteed by Export Development Canada (EDC) on terms in form
and substance acceptable to the Majority Banks in accordance with the terms and
conditions of the Credit Agreement, the Pledged Property shall be released from
the Lien created hereby and this Agreement and all obligations of the Pledgee
and the Pledgors hereunder shall terminate, all without delivery of any
instrument or performance of any act by any Person, and all rights to the
Pledged Property shall revert to the Pledgors. At the request of the
Pledgors following any such termination, the Pledgee shall deliver to Pledgors
any Pledged Property held by the Pledgee hereunder and execute and deliver to
Pledgors such documents as Pledgors shall reasonably request to evidence such
termination.
(b)
If
the Pledgee, pursuant to the terms of the Credit Agreement or any other Loan
Documents, shall release any Lien upon any Pledged Property, such Pledged
Property shall be released from the Lien created hereby to the extent provided
under, and subject to the terms and conditions set forth in the Credit Agreement
or such other Loan Document. In connection therewith, the Pledgee, at
the request and of Pledgors, shall execute and deliver to Pledgors all releases
or other documents, including, without limitation, UCC amendment or termination
statements, reasonably necessary or desirable for the release of the Lien
created hereby on such Pledged Property.
10.
MISCELLANEOUS
(a)
Each
Pledgor authorizes the Pledgee to file or record UCC financing statements with
respect to the Pledged Property of such Pledgor with or without the signature of
such Pledgor, in such form and in such offices as the Pledgee reasonably
determines appropriate to perfect the security interests of the Pledgee under
this Agreement;
provided
that nothing
herein shall relieve such Pledgor from its obligation to file or record any UCC
financing or continuation statement with respect to its Pledged
Property.
(b)
Each
Pledgor agrees that at any time and from time to time upon the written request
of the Pledgee, such Pledgor shall execute and deliver such further documents,
in form satisfactory to the Pledgee’s counsel, and will take or cause to be
taken such further acts as the Pledgee may request in order to effect the
purposes of this Agreement and perfect or continue the perfection of the
security interest in the Pledged Property granted to the Pledgee
hereunder.
(c)
Beyond
the exercise of reasonable care to assure the safe custody of the Pledged
Property (whether such custody is exercised by the Pledgee, or the Pledgee’s
nominee, agent or bailee) the Pledgee or the Pledgee’s nominee agent or bailee
shall have no duty or liability to protect or preserve any rights pertaining
thereto and shall be relieved of all responsibility for the Pledged Property
upon surrendering it to Pledgors or foreclosure with respect
thereto.
(d)
All
notices, requests and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by fax or other writing and faxed, mailed or
delivered to the intended recipient at the “Address for Notices” specified below
its name on the signature pages hereof.
(e)
All
references to the plural herein shall also mean the singular and to the singular
shall also mean the plural. All references to any Pledgor, the
Pledgee, any Secured Party and the Issuer pursuant to the definitions set forth
in the recitals hereto, or to any other person herein, shall include their
respective successors and assigns. The words “hereof,” “herein,”
“hereunder,” “this Agreement” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced.
(f)
This
Agreement shall be binding upon each Pledgor and its respective successors and
assigns and shall inure to the benefit of and be enforceable by the Pledgee and
the Secured Parties and their respective successors, endorsees, transferees and
assigns, except that no Pledgor may assign its rights under this Agreement
without the prior written consent of the Pledgee and the Secured
Parties. Any such purported assignment without such express prior
written consent shall be void. The liquidation, dissolution or
termination of any Pledgor shall not terminate this Pledge as to such entity or
as to any of the other Pledgors. The terms and provisions of this Agreement are
for the purpose of defining the relative rights and obligations of the Borrower,
the Pledgors, the Pledgee and the Secured Parties with respect to the
transactions contemplated hereby and there shall be no third party beneficiaries
of any of the terms and provisions of this Agreement.
(g)
If
any provision of this Agreement is held to be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate this Agreement as a whole,
but this Agreement shall be construed as though it did not contain the
particular provision held to be invalid or unenforceable and the rights and
obligations of the parties shall be construed and enforced only to such extent
as shall be permitted by applicable law.
(h)
This
Agreement, any supplements hereto, and any instruments or documents delivered or
to be delivered in connection herewith, represents the entire agreement and
understanding of the parties hereto concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, commitments, proposals, offers and contracts concerning the subject
matter hereof, whether oral or written. In the event of any
inconsistency between the terms of this Agreement and any exhibit hereto, the
terms of this Agreement shall govern.
(i)
Neither
this Agreement nor any provision hereof shall be amended, modified, waived or
discharged orally or by course of conduct, but only by a written agreement
signed by an authorized officer of the Pledgee. The Pledgee shall not
by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of the
Pledgee. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by the Pledgee of any right,
power and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy that the Pledgee would otherwise
have on any future occasion, whether similar in kind or otherwise.
(j)
This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or electronic delivery shall have the same force and effect as the
delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile or
electronic transmission shall also deliver an original executed counterpart, but
the failure to do so shall not affect the validity, enforceability or binding
effect of this Agreement.
(k)
Each
Pledgor agrees that, if pursuant to Section 9.16 of the Credit Agreement, it
shall be required to cause a Subsidiary that is not a pledgor to become a
pledgor hereunder, or if for any reason the Borrower desires any such Subsidiary
to become a pledgor hereunder, such Subsidiary shall execute and deliver to the
Pledgee a Pledge Agreement Supplement in substantially the form of Exhibit B (a
“
Pledge
Supplement
”) attached hereto and shall thereafter for all purposes be a
party hereto and have the same rights, benefits and obligations as a pledgor
party hereto as if originally named as a pledgor herein. The rights
and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Pledgor as a party to this
Agreement.
[Signature
page follows.]
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above written.
PLEDGORS
|
|
GTE
COLOMBIA HOLDINGS LLC
|
|
By: Gran
Tierra Energy Cayman Islands II Inc., the General Manager and the Manager
of Series 1, Series 2 and Series 3 of GTE Colombia Holdings
LLC
|
By:
|
/s/
Martin
Eden
|
Name:
|
Martin
Eden
|
Title:
|
Chief
Financial Officer
|
By:
Gran Tierra Energy Inc., the Manager of Series 4, Series 5, Series 6,
Series 7, Series 8 and Series 9 of GTE Colombia Holdings
LLC
|
By:
|
/s/
Martin
Eden
|
Name:
|
Martin
Eden
|
Title:
|
Chief
Financial Officer
|
Address
for Notices:
|
|
c/o
Gran Tierra Energy Inc.
|
300,
611-10
th
Avenue SW
|
Calgary,
Alberta
|
Canada
T2R 0B2
|
Attention:
|
Chief
Financial Officer
|
Tel:
|
+1
(403) 265 3221
|
Fax:
|
+1
(403) 265 3242
|
Email:
|
martineden@grantierra.com
|
Partnership Pledge
Agreement
PLEDGORS
|
|
ARGOSY
ENERGY, LLC
|
(f/k/a
Argosy Energy Corp.)
|
|
By:
Gran Tierra Energy Cayman Islands II, Inc., its General
Manager
|
By:
|
/s/
Martin
Eden
|
Name:
|
Martin
Eden
|
Title:
|
Chief
Financial Officer
|
Address
for Notices:
|
|
c/o
Gran Tierra Energy Inc.
|
300,
611-10th Avenue SW
|
Calgary,
Alberta
|
Canada
T2R 0B2
|
Attention:
|
Chief
Financial Officer
|
Tel:
|
+1
(403) 265 3221
|
Fax:
|
+1
(403) 265 3242
|
Email:
|
martineden@grantierra.com
|
Partnership Pledge
Agreement
PLEDGEE
|
|
STANDARD
BANK PLC,
as
Administrative Agent for the Secured Parties
|
|
|
By:
|
/s/
Martin Revoredo
|
Name: Martin
Revoredo
|
Title: Senior
Vice President
|
|
|
By:
|
/s/
Roderick L. Fraser
|
Name: Roderick
L. Fraser
|
Title:
Managing Director, Global Head of Energy
Finance
|
Address
for Notices:
|
|
5th
Floor, Cannon Bridge House
|
25
Dowgate Hill
|
London
EC4R 2SB
|
Attention:
|
Howard
Baldock
|
Tel:
|
+44
(0) 20 7815 2701
|
Fax:
|
+44
(0) 20 7815 4032
|
Email:
|
howard.baldock@standardbank.com
and
|
|
london-loansadmin@standardbank.com
|
|
|
With
a copy to:
|
|
320
Park Avenue, 19th floor
|
New
York, NY 10022
|
United
States of America
|
Attention:
|
Maria
Ivulic
|
Tel:
|
+1
(212) 407 5164
|
Fax:
|
+1
(212) 407 5178
|
Email:
|
maria.ivulic@standardny.com
|
Partnership Pledge
Agreement
EXHIBIT
A
TO
PLEDGE
AGREEMENT
Issuer
|
|
Percentage of Outstanding
Interests Owned
|
|
Pledgor
|
Gran Tierra Energy Colombia, Ltd.
|
|
99.2857% (Limited Partner)
|
|
GTE Colombia Holdings LLC
|
Gran Tierra Energy Colombia, Ltd.
|
|
0.7143% (General Partner)
|
|
Argosy Energy, LLC
(f/k/a Argosy Energy Corp.)
|
EXHIBIT
B
TO
PARTNERSHIP PLEDGE
AGREEMENT
FORM
OF
PLEDGE
SUPPLEMENT
This PLEDGE SUPPLEMENT, dated as
of __________, _____ (this “
Supplement
”),
supplements the Partnership Pledge Agreement, dated as of January 1, 2009 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the “
Pledge
Agreement
”), among the initial signatories thereto and each other Person
which from time to time thereafter became a party thereto pursuant to
Section 10(k)
thereof
(each, individually, a “
Pledgor
” and,
collectively, the “
Pledgors
”), in favor
of the Pledgee and the Secured Parties in respect of partnership interests in
GRAN TIERRA ENERGY COLOMBIA, LTD. (formerly Argosy Energy International), a
limited partnership organized under the laws of the State of Utah (Registered
No. 2110646-0180).
WITNESSETH:
WHEREAS, capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Pledge Agreement;
WHEREAS, the Pledge Agreement provides
that additional parties may become Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this
Supplement;
WHEREAS, pursuant to the provisions of
Section 10(k)
of the Pledge Agreement, the undersigned is becoming a pledgor under the Pledge
Agreement; and
WHEREAS, the undersigned desires to
become a pledgor under the Pledge Agreement in order to induce the Banks to
continue to make Loans and provide other financial accommodations under the
Credit Agreement and to induce the Designated Hedge Counterparty to continue to
provide financial accommodations under the Designated Hedging Agreement as
consideration therefor;
NOW, THEREFORE, the undersigned agrees,
for the benefit of the Pledgee and the Secured Parties, as follows:
SECTION 1. In accordance
with the Pledge Agreement, the undersigned by its signature below becomes a
pledgor under the Pledge Agreement with the same force and effect as if it were
an original signatory thereto as a pledgor and the undersigned hereby (a) agrees
to all the terms and provisions of the Pledge Agreement applicable to it as a
pledgor thereunder and (b) represents and warrants that the representations and
warranties set forth in
Section 4
of the
Pledge Agreement are true and correct with respect to the undersigned on and as
of the date hereof, except as otherwise disclosed to the
Pledgee. In furtherance of the foregoing, each reference to a
“Pledgor” in the Pledge Agreement shall be deemed to include the
undersigned.
SECTION 2. The undersigned
hereby represents and warrants that this Supplement has been duly authorized,
executed and delivered by the undersigned and constitutes a legal, valid and
binding obligation of the undersigned, enforceable against it in accordance with
its terms.
SECTION 3. Except as
expressly supplemented hereby, the Pledge Agreement shall remain in full force
and effect in accordance with its terms.
SECTION 4. In the event any
one or more of the provisions contained in this Supplement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Pledge
Agreement shall not in any way be affected or impaired.
SECTION 5. Without limiting
the provisions of the Credit Agreement (or any other Loan Document, including
the Pledge Agreement), the undersigned agrees to reimburse the Pledgee and each
Secured Party for its reasonable out-of-pocket expenses in connection with this
Supplement, including attorneys’ fees and expenses of the Pledgee and the
Secured Parties.
SECTION 6. THE VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS SUPPLEMENT AND ANY DISPUTE ARISING OUT OF
THE RELATIONSHIP BETWEEN ANY PLEDGOR AND PLEDGEE OR ANY SECURED PARTY, WHETHER
IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
SECTION 7. WITHOUT LIMITING
THE EFFECT OF
SECTION
8
OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY IRREVOCABLY CONSENTS
AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE
OF NEW YORK, SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICHEVER
PLEDGEE MAY ELECT, AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM
NON
CONVENIENS
WITH
RESPECT TO ANY ACTION INSTITUTED THEREIN ARISING UNDER THIS PLEDGE AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF ANY PLEDGOR AND PLEDGEE OR ANY SECURED PARTY IN
RESPECT OF THIS PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, AND AGREES
THAT ANY DISPUTE WITH RESPECT TO ANY SUCH MATTERS SHALL BE HEARD ONLY IN THE
COURTS DESCRIBED ABOVE (EXCEPT THAT PLEDGEE AND THE SECURED PARTIES SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY PLEDGOR OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE PLEDGEE DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON ANY COLLATERAL AT ANY TIME GRANTED BY THE
BORROWER OR ANY PLEDGOR TO PLEDGEE OR ANY SECURED PARTY OR TO OTHERWISE ENFORCE
ITS RIGHTS AGAINST ANY PLEDGOR OR ITS PROPERTY). THE UNDERSIGNED
HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS
WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING. IF FOR ANY REASON CT
CORPORATION SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE UNDERSIGNED AGREES
TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE PLEDGEE. THE
UNDERSIGNED HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY CERTIFIED MAIL
(RETURN RECEIPT REQUESTED) DIRECTED TO ITS ADDRESS SET FORTH ON THE SIGNATURE
PAGES HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS, OR, AT PLEDGEE’S
OPTION, BY SERVICE UPON ANY PLEDGOR IN ANY OTHER MANNER PROVIDED UNDER THE RULES
OF ANY SUCH COURTS.
WITHIN
SIXTY (60) DAYS AFTER SUCH SERVICE, ANY PLEDGOR SO SERVED SHALL APPEAR IN ANSWER
TO SUCH PROCESS, FAILING WHICH SUCH PLEDGOR SHALL BE DEEMED IN DEFAULT AND
JUDGMENT MAY BE ENTERED BY THE PLEDGEE AGAINST SUCH PLEDGOR FOR THE AMOUNT OF
THE CLAIM AND OTHER RELIEF REQUESTED.
SECTION 8. WITHOUT LIMITING
THE EFFECT OF
SECTION
8
OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING
UNDER THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
THERETO IN RESPECT OF THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT ANY PLEDGOR, ANY SECURED PARTY OR PLEDGEE MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
SECTION 9. This Supplement
hereby incorporates by reference the provisions of the Pledge Agreement, which
provisions are deemed to be a part hereof, and this Supplement shall be deemed
to be a part of the Pledge Agreement.
SECTION 10. This Supplement
may be executed in any number of counterparts, each of which shall be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Supplement by
telefacsimile shall have the same force and effect as the delivery of an
original executed counterpart of this Supplement. Any party
delivering an executed counterpart of this Supplement by telefacsimile shall
also deliver an original executed counterpart, but the failure to do so shall
not affect the validity, enforceability or binding effect of this
Supplement.
IN WITNESS WHEREOF, the parties hereto
have caused this Supplement to the Pledge Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the day
and year first above written.
[NAME
OF ADDITIONAL PLEDGOR]
|
|
|
By:
|
|
Name:
|
Title:
|
|
|
Address:
|
|
|
STANDARD
BANK PLC
|
for
the benefit of the Secured Parties
|
|
|
By:
|
|
|
Title:
|
EXECUTION
VERSION
GP PLEDGE
AGREEMENT
This GP
PLEDGE AGREEMENT, dated as of January 1, 2009 (as amended, supplemented, amended
and restated or otherwise modified from time to time, this “
Agreement
”), is made
by GTE COLOMBIA HOLDINGS LLC, a limited liability company organized under the
laws of the State of Delaware (Registered No. 4635693) (the “
Pledgor
”), in favor
of STANDARD BANK PLC, in its capacity as administrative agent under the Credit
Agreement (as hereinafter defined) acting for and on behalf of the Secured
Parties (in such capacity, the “
Pledgee
”).
WITNESSETH
:
WHEREAS,
the Pledgor is the direct and beneficial owner of all of the issued and
outstanding membership interests of ARGOSY ENERGY, LLC, a limited liability
company organized under the laws of the State of Delaware (f/k/a Argosy Energy
Corp., a Delaware corporation) (Registered No. 3234977) (the “
Issuer
”);
WHEREAS,
pursuant to that certain Credit Agreement, dated as of February 22,
2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “
Credit Agreement
”),
among Gran Tierra Energy Inc. (the “
Borrower
”), the
Issuer, certain of their affiliates, the banks from time to time party thereto
(the “
Banks
”)
and the Pledgee, the Pledgee and the Banks have entered into financing
arrangements pursuant to which the Banks may make loans and provide other
financial accommodations to the Borrower;
WHEREAS,
in order to induce the Banks to make loans and provide other financial
accommodations pursuant to the Credit Agreement, and to induce the Designated
Hedge Counterparty to enter into the Designated Hedging Agreement and for other
good and valuable consideration (the sufficiency of which the Pledgor hereby
acknowledges), the Pledgor has agreed to secure the prompt payment in full when
due of the Obligations by executing and delivering to the Pledgee this
Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby agrees as follows:
|
1.
|
DEFINITIONS; RULES OF
INTERPRETATION
|
(a)
Definition of Terms Used
Herein
. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Credit Agreement. In
addition:
(i)
“
Issuer
” has the
meaning set forth in the recitals hereto.
(ii)
“
LLC Agreement
” means
the limited liability company agreement of the Issuer, or such other analogous
agreement governing its operation.
(iii)
“
Obligations
” means
all amounts from time to time owing to the Secured Parties by the Obligors under
the Credit Agreement, including Section 6 thereof, this Agreement and any of the
other Loan Documents to which any Obligor is a party, in each case strictly in
accordance with the terms hereof and thereof.
(iv)
“
Pledged Interests
”
means all of the membership interests in the Issuer.
(v)
“
Pledged Property
” has
the meaning set forth in Section 2(a) hereto.
(vi)
“
UCC
” means the
Uniform Commercial Code as from time to time in effect in the State of New
York.
|
2.
|
GRANT OF SECURITY
INTEREST
|
(a)
As
collateral security for the prompt performance, observance and indefeasible
payment in full of all of the Obligations, the Pledgor hereby assigns and
pledges to the Pledgee, and grants to the Pledgee for itself and the benefit of
the Secured Parties, a security interest in and Lien upon the following
(collectively, the “
Pledged
Property
”):
(i)
the Pledged Interests and all certificates (if any) at any
time representing or evidencing such Pledged Interests;
(ii)
all
of its present and future right to receive payment of money or other
distributions arising out of or in connection with the Pledged
Interests;
(iii)
all
of its rights, title and interest in, to and under the LLC Agreement, including,
without limitation, all of its rights, title and interest as a member to
participate in the operation or management of the Issuer;
(iv)
all
proceeds of and to any of the property of the Pledgor described above,
including, without limitation, all causes of action, claims and warranties now
or hereafter held by the Pledgor in respect of any of the items listed above;
and
(v)
the
Pledgor’s books and records with respect to any of the foregoing.
(b)
This
Agreement is executed only as security for the Obligations and, therefore, the
execution and delivery of this Agreement shall not subject the Pledgee or any
Secured Party to, or transfer or pass to the Pledgee or any Secured Party, or in
any way affect or modify, the duties, obligations and liabilities of the Pledgor
under the LLC Agreement or any related agreement, document or instrument or
otherwise. In no event shall the acceptance of this Agreement by the
Pledgee or the Secured Parties or the exercise by the Pledgee or any Secured
Party of any rights hereunder or assigned hereby, constitute an assumption of
any duty, liability or obligation of the Pledgor to, under or in connection with
the LLC Agreement or any related agreements, documents or instruments or
otherwise.
(c)
The
acceptance by the Pledgee and the Secured Parties of this Agreement, with all of
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any Secured Party to appear in or defend
any action or proceeding relating to the Pledged Property to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expense or perform or discharge any duty, obligation or liability
hereunder or otherwise with respect to the Pledged Property.
3.
OBLIGATIONS
SECURED
The Lien
and other interests granted to the Pledgee for itself and the benefit of the
Secured Parties, pursuant to this Agreement shall secure the prompt performance
and payment in full of any and all of the Obligations.
4.
REPRESENTATIONS, WARRANTIES
AND COVENANTS
The
Pledgor hereby represents, warrants and covenants with and to the Pledgee and
the Secured Parties the following as of the date hereof (all of such
representations, warranties and covenants being continuing so long as any of the
Obligations are outstanding):
(a)
The
Pledged Interests are duly authorized and validly existing and constitute the
Pledgor’s entire interest in the Issuer and the Pledgor is the registered owner
of such Pledged Interests.
(b)
The
Pledgor is the holder of all of the outstanding membership interests of the
Issuer.
(c)
The
Pledged Property pledged by the Pledgor hereunder is directly, legally and
beneficially owned by the Pledgor free and clear of all claims and Liens of any
kind, nature or description, other than those created pursuant to this Agreement
in favor of the Pledgee (for itself and for the benefit of the Secured Parties)
and other than Permitted Liens.
(d)
The
Pledged Property pledged by the Pledgor hereunder is not subject to any
restriction relative to the transfer thereof (other than applicable law) and the
Pledgor has the right to transfer the Pledged Property free and clear of any
Lien other than Permitted Liens.
(e)
The
Pledged Property pledged by the Pledgor hereunder is duly and validly pledged to
the Pledgee, no consent or approval of any governmental or regulatory authority
or of any securities exchange or the like, nor any consent or approval of any
other third party, was or is necessary to the validity and enforceability of
this Agreement, except as expressly set forth herein (other than applicable
securities laws).
(f)
If the Pledgor shall
become entitled to receive or acquire, or shall receive any membership interest
certificate, or option or right with respect to the Pledged Interests (including
without limitation, any certificate representing a distribution or exchange of
or in connection with reclassification of the Pledged Interests) whether as an
addition to, in substitution of, or in exchange for any of the Pledged Property
or otherwise, the Pledgor agrees to accept the same as the Pledgee’s agent, to
hold the same in trust for the Pledgee and to deliver the same forthwith to the
Pledgee or the Pledgee’s agent or bailee in the form received, with the
endorsement(s) of the Pledgor where necessary and/or appropriate powers and/or
assignments duly executed to be held by the Pledgee or the Pledgee’s agent or
bailee subject to the terms hereof, as further security for the
Obligations.
(g)
The
Pledged Interests pledged by the Pledgor hereunder are not and shall not at any
time hereafter be investment property or otherwise subject to Article 8 of the
UCC except as the Pledgee may otherwise expressly agree in
writing. As of the date hereof, there are no certificates or other
written instruments evidencing or representing the Pledged
Interests.
(h)
The
Pledgor shall keep full and accurate books and records relating to the Pledged
Property pledged by the Pledgor hereunder and stamp or otherwise mark such books
and records in such manner as the Pledgee may in good faith require in order to
reflect the security interests granted by this Agreement.
(i)
The Pledgor shall not, without the prior consent of the Pledgee, directly or
indirectly, sell, assign, transfer, or otherwise dispose of, or grant any option
with respect to the Pledged Property, nor shall the Pledgor create, incur or
permit any further Lien with respect to the Pledged Property other than as
permitted in the Credit Agreement.
(j)
So long as no Event of Default has occurred and is continuing, the Pledgor shall
have the right to exercise all rights with respect to the Pledged Property,
except as expressly prohibited herein or in the other Loan Documents, and to
receive any distributions payable in respect of the Pledged Property (but
subject to terms of the Credit Agreement with respect thereto).
(k)
The
Pledgor has delivered to the Pledgee a true, correct and complete copy of the
LLC Agreement.
(l)
Other than as permitted in the Credit Agreement, the Pledgor shall not permit
the Issuer, directly or indirectly, to (i) issue, sell, grant, assign,
transfer or otherwise dispose of, any additional membership interests of the
Issuer or any option or warrant with respect to, or other right or security
convertible into, any additional membership interests, now or hereafter
authorized, unless all such additional membership interests, options, warrants,
rights or other such securities are made and shall remain part of the Pledged
Property subject to the pledge and security interest granted herein,
(ii) take any action to withdraw the authority of or to limit or restrict
the authority of the Issuer’s members to deal and contract with the Pledgee and
to bind and obligate the Issuer, or (iii) pay any interim distribution in
cash or other assets to any member, except as permitted in the Credit
Agreement.
(m)
[Intentionally
Omitted]
(n)
The
Pledgor shall not, and shall not permit the Issuer, directly or indirectly, to,
amend, modify or supplement any of the provisions of the LLC Agreement or the
Issuer’s certificate of formation without the prior written consent of the
Pledgee if any such amendment, modification or supplement could reasonably be
expected to affect any rights of the Pledgee or any Secured Party hereunder or
under any of the other Loan Documents.
(o)
The
Pledgor shall furnish, or cause to be furnished, to the Pledgee such information
concerning the Issuer and the Pledged Property as the Pledgee may from time to
time reasonably request.
(p)
The
Pledgee may notify the Issuer or the appropriate transfer agent of the Pledged
Interests to register on the books of the Issuer the security interest and
pledge granted herein and honor the rights of the Pledgee and the Secured
Parties with respect thereto.
(q)
The
Pledgor shall not change its name or its jurisdiction of organization from that
existing as of the date of this Agreement, except upon 15 Business Days’ prior
written notice to the Pledgee and delivery to the Pledgee of copies of all filed
additional financing statements, and other documents (in each case, properly
executed) reasonably requested by the Pledgee to maintain the validity,
perfection and priority of the security interests provided for
herein.
(r)
The Pledgor waives to the extent permissible by applicable law, its rights under
Section 9-207 of the UCC. The Pledgor agrees that the Pledged
Property, other collateral, or any other guarantor or endorser may be released,
substituted or added with respect to the Obligations, in whole or in part,
without releasing or otherwise affecting the liability of the Pledgor, the
pledge and security interests granted hereunder, or this
Agreement. The Pledgee, for and on behalf of itself and the Secured
Parties, is entitled to all of the benefits of a secured party set forth in
Section 9-207 of the UCC.
5.
[Intentionally Omitted]
6.
[Intentionally Omitted]
7.
RIGHTS AND
REMEDIES
At any
time after an Event of Default exists or has occurred and is continuing, in
addition to all other rights and remedies of the Pledgee and the Secured
Parties, whether provided under this Agreement, the Credit Agreement, the other
Loan Documents, applicable law or otherwise, the Pledgee shall have the
following rights and remedies which may be exercised without notice to, or
consent by, the Pledgor except as such notice or consent is expressly provided
for hereunder or such notices which the Pledgor may not waive in accordance with
applicable law:
(a)
The
Pledgee, at its option, shall be empowered to exercise its continuing right to
instruct the Issuer in writing (or the appropriate transfer agent of the Pledged
Interests) to register any or all of the Pledged Interests in the name of the
Pledgee or in the name of the Pledgee’s nominee (including, without limitation,
any Secured Party) and the Pledgee may complete, in any manner the Pledgee may
deem expedient, any assignments or other documents heretofore or hereafter
executed in blank by the Secured Parties and delivered to the
Pledgee. After said written instruction, and without further notice,
the Pledgee shall be admitted as a member of the Issuer without any further
approval of the Pledgor or the Issuer and without any requirement for the
Pledgee to comply with any of the conditions or other requirements of the LLC
Agreement and without conferring upon any member of the Issuer any option
(whether under the LLC Agreement or otherwise) to acquire the membership
interests so transferred to the Pledgee and shall have the exclusive right to
exercise all voting and limited liability company rights with respect to the
Pledged Property, and exercise any and all rights of conversion, redemption,
exchange, subscription or any other rights, privileges, or options pertaining to
the Pledged Property as if the Pledgee were the absolute owner thereof,
including, without limitation, the right to exchange, in its discretion, any and
all of the Pledged Property upon any merger, consolidation, reorganization,
recapitalization or other readjustment with respect thereto. Upon the
exercise of any such rights, privileges or options by the Pledgee, the Pledgee
shall have the right to deposit and deliver any and all of the Pledged Property
to any committee, depository, transfer agent, registrar or other designated
agency upon such terms and conditions as the Pledgee may determine, all without
liability, except to account for property actually received by the
Pledgee. However, the Pledgee shall have no duty to exercise any of
the aforesaid rights, privileges or options (all of which are exercisable in the
sole discretion of the Pledgee) and shall not be responsible for any failure to
do so or delay in doing so.
(b)
The
Pledgee may, in its good faith discretion (i) collect, foreclose, receive,
appropriate, setoff and realize upon any and all Pledged Property,
(ii) sell, lease, transfer, assign, deliver or otherwise dispose of any and
all Pledged Property (including entering into contracts with respect thereto,
public or private sales at any exchange, broker’s board, at any office of the
Pledgee or elsewhere) at such prices or terms as the Pledgee may deem
reasonable, for cash, upon credit or for future delivery, with the Pledgee
having the right to purchase the whole or any part of the Pledged Property at
any such public sale, all of the foregoing being free from any right or equity
of redemption of the Pledgor, which right or equity of redemption is hereby
expressly waived and released by the Pledgor (to the extent permitted by
applicable law). If notice of disposition of Pledged Property is
required by law, ten (10) days prior notice by the Pledgee to the Pledgor
designating the time and place of any public sale or the time after which any
private sale or other intended disposition of Pledged Property is to be made,
shall be deemed to be reasonable notice thereof and any other
notice. The Pledgee shall apply the cash proceeds of Pledged Property
actually received by the Pledgee from any sale, lease, foreclosure or other
disposition of the Pledged Property to payment of the Obligations then due, in
whole or in part and in accordance with the terms of Section 10 of the Credit
Agreement, and thereafter may hold such proceeds as cash collateral for the
Obligations not then due. The Pledgor shall remain liable to the
Pledgee and the Secured Parties for the payment of any deficiency with interest
at the highest rate provided for in the Credit Agreement and agrees to indemnify
the Pledgee and the Secured Parties from all costs and expenses of collection or
enforcement incurred in good faith by each of them or on their behalf, including
reasonable attorneys’ fees and expenses, as provided in the Credit
Agreement.
(c)
The
Pledgor recognizes that the Pledgee may be unable to effect a public sale of all
or part of the Pledged Property by reason of certain prohibitions contained in
the Securities Act of 1933, as amended, as now or hereafter in effect, or in
applicable Blue Sky or other state securities law, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Pledged Property for their own account for investment and not
with a view to the distribution or resale thereof. If at the time of
any sale of the Pledged Property or any part thereof, the same shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933 (or other applicable state securities law), as then in effect, the Pledgee
in its sole and absolute discretion is authorized to sell such Pledged Property
or such part thereof by private sale in such manner and under such circumstances
as the Pledgee or its counsel may deem necessary or advisable in order that such
sale may legally be effected without registration. The Pledgor agrees
that private sales so made may be at prices and other terms less favorable to
the seller than if such Pledged Property were sold at public sale, and that the
Pledgee has no obligation to delay the sale of any such Pledged Property for the
period of time necessary to permit the Issuer, even if the Issuer would agree,
to register such Pledged Property for public sale under such applicable
securities laws. The Pledgor agrees that any private sales made under
the foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(d)
All
of the rights and remedies of the Pledgee and the Secured Parties, including,
but not limited to, the foregoing and those otherwise arising under this
Agreement, the Credit Agreement and the other Loan Documents, the instruments
comprising the Pledged Property, applicable law or otherwise, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as the Pledgee may deem expedient. No
failure or delay on the part of the Pledgee or any Secured Party in exercising
any of its options, powers or rights or partial or single exercise thereof,
shall constitute a waiver of such option, power or right.
8.
JURY TRIAL WAIVER; OTHER
WAIVERS AND CONSENTS; GOVERNING LAW
(a)
The
validity, interpretation and enforcement of this Agreement and any dispute
arising out of the relationship between the Pledgor and the Pledgee or any
Secured Party, whether in contract, tort, equity or otherwise, shall be governed
by the laws of the State of New York, including, without limitation, Section
5-1401 of the New York General Obligations Law.
(b)
The
Pledgor hereby irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, sitting in the
Borough of Manhattan, The City of New York and the United States District Court
for the Southern District of New York, whichever the Pledgee may elect, and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Agreement or any of the other Loan
Documents or in any way connected with or related or incidental to the dealings
of the Pledgor and the Pledgee or any Secured Party in respect of this Agreement
or any of the other Loan Documents or the transactions related hereto or
thereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agrees that any dispute with respect to
any such matters shall be heard only in the courts described above (except that
the Pledgee and the Secured Parties shall have the right to bring any action or
proceeding against the Pledgor or its property in the courts of any other
jurisdiction that the Pledgee deems necessary or appropriate in order to realize
on any collateral at any time granted by the Pledgor to the Pledgee or any
Secured Party or to otherwise enforce its rights against the Pledgor or its
property).
(c)
The
Pledgor hereby irrevocably designates, appoints and empowers CT Corporation as
its designee, appointee and agent to receive, accept and acknowledge for and on
its behalf, and in respect of its property, service of any and all legal process
which may be served in any action or proceeding. If for any reason CT
Corporation shall cease to be available to act as such, the Pledgor agrees to
designate a new designee, appointee and agent on the terms and for the purposes
of this provision satisfactory to the Pledgee. The Pledgor hereby
irrevocably consents to the service of process out of any of the courts
mentioned in Section 8(b) above in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid to the
Pledgor at its address set forth in the signature pages hereof.
(d)
THE
PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR THERETO IN RESPECT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. THE PLEDGOR HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT THE PLEDGOR, ANY SECURED PARTY OR THE PLEDGEE MAY FILE
AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PLEDGOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
(e)
Neither
the Pledgee nor any Secured Party shall have any liability to the Pledgor
(whether in tort, contract, equity or otherwise) for losses suffered by the
Pledgor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Agreement, or any act,
omission or event occurring in connection herewith, unless with respect to the
Pledgee or any Secured Party, as applicable, it is determined by a final and
non-appealable judgment or court order binding on the Pledgee or such Secured
Party, as applicable, that the losses were the result of acts or omissions
constituting gross negligence or willful misconduct or bad faith of the Pledgee
or the relevant Secured Party, as applicable. In any such litigation,
the Pledgee and the Secured Parties shall be entitled to the benefit of the
rebuttable presumption that they acted in good faith and with the exercise of
ordinary care in the performance by them of the terms of the Credit Agreement
and the other Loan Documents. The Pledgor: (i) certifies that neither
the Pledgee nor any Secured Party nor any representative, agent or attorney
acting for or on behalf of the Pledgee or any Secured Party has represented,
expressly or otherwise, that the Pledgee and the Secured Parties would not, in
the event of litigation, seek to enforce any of the waivers or other agreements
for their benefit provided for in this Agreement or any of the other Loan
Documents and (ii) acknowledges that in entering into this Agreement and the
other Loan Documents, the Pledgee and the Secured Parties are relying upon,
among other things, the waivers and certifications set forth in this Section
8(e) and elsewhere herein and therein.
9.
RELEASE OF
COLLATERAL
(a)
Upon
termination of the Commitments and payment and satisfaction in full (in cash or
other immediately available funds) of all Loans and all other Obligations and,
in respect of contingent Letter of Credit Liabilities, after cash collateral has
been deposited with respect thereto or after such Letter of Credit Liabilities
have been fully guaranteed by Export Development Canada (EDC) on terms in form
and substance acceptable to the Majority Banks in accordance with the terms and
conditions of the Credit Agreement, the Pledged Property shall be released from
the Lien created hereby and this Agreement and all obligations of the Pledgee
and the Pledgor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any Person, and all rights to the
Pledged Property shall revert to the Pledgor. At the request of the
Pledgor following any such termination, the Pledgee shall deliver to the Pledgor
any Pledged Property held by the Pledgee hereunder and execute and deliver to
the Pledgor such documents as the Pledgor shall reasonably request to evidence
such termination.
(b)
If
the Pledgee, pursuant to the terms of the Credit Agreement or any other Loan
Documents, shall release any Lien upon any Pledged Property, such Pledged
Property shall be released from the Lien created hereby to the extent provided
under, and subject to the terms and conditions set forth in the Credit Agreement
or such other Loan Document. In connection therewith, the Pledgee, at
the request and of the Pledgor, shall execute and deliver to the Pledgor all
releases or other documents, including, without limitation, UCC amendment or
termination statements, reasonably necessary or desirable for the release of the
Lien created hereby on such Pledged Property.
10.
MISCELLANEOUS
(a)
The
Pledgor authorizes the Pledgee to file or record UCC financing statements with
respect to the Pledged Property with or without the signature of the Pledgor, in
such form and in such offices as the Pledgee reasonably determines appropriate
to perfect the security interests of the Pledgee under this Agreement;
provided
that nothing
herein shall relieve the Pledgor from its obligation to file or record any UCC
financing or continuation statement with respect to the Pledged
Property.
(b)
The
Pledgor agrees that at any time and from time to time upon the written request
of the Pledgee, the Pledgor shall execute and deliver such further documents, in
form satisfactory to the Pledgee’s counsel, and will take or cause to be taken
such further acts as the Pledgee may request in order to effect the purposes of
this Agreement and perfect or continue the perfection of the security interest
in the Pledged Property granted to the Pledgee hereunder.
(c)
Beyond
the exercise of reasonable care to assure the safe custody of the Pledged
Property (whether such custody is exercised by the Pledgee, or the Pledgee’s
nominee, agent or bailee) the Pledgee or the Pledgee’s nominee agent or bailee
shall have no duty or liability to protect or preserve any rights pertaining
thereto and shall be relieved of all responsibility for the Pledged Property
upon surrendering it to the Pledgor or foreclosure with respect
thereto.
(d)
All
notices, requests and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by fax or other writing and faxed, mailed or
delivered to the intended recipient at the “Address for Notices” specified below
its name on the signature pages hereof.
(e)
All
references to the plural herein shall also mean the singular and to the singular
shall also mean the plural. All references to the Pledgor, the
Pledgee, any Secured Party and the Issuer pursuant to the definitions set forth
in the recitals hereto, or to any other person herein, shall include their
respective successors and assigns. The words “hereof,” “herein,”
“hereunder,” “this Agreement” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced.
(f)
This
Agreement shall be binding upon the Pledgor and its respective successors and
assigns and shall inure to the benefit of and be enforceable by the Pledgee and
the Secured Parties and their respective successors, endorsees, transferees and
assigns, except that no Pledgor may assign its rights under this Agreement
without the prior written consent of the Pledgee and the Secured
Parties. Any such purported assignment without such express prior
written consent shall be void. The liquidation, dissolution or
termination of the Pledgor shall not terminate this Pledge. The terms and
provisions of this Agreement are for the purpose of defining the relative rights
and obligations of the Pledgor, the Pledgee and the Secured Parties with respect
to the transactions contemplated hereby and there shall be no third party
beneficiaries of any of the terms and provisions of this Agreement.
(g)
If
any provision of this Agreement is held to be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate this Agreement as a whole,
but this Agreement shall be construed as though it did not contain the
particular provision held to be invalid or unenforceable and the rights and
obligations of the parties shall be construed and enforced only to such extent
as shall be permitted by applicable law.
(h)
This
Agreement, any supplements hereto, and any instruments or documents delivered or
to be delivered in connection herewith, represents the entire agreement and
understanding of the parties hereto concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, commitments, proposals, offers and contracts concerning the subject
matter hereof, whether oral or written. In the event of any
inconsistency between the terms of this Agreement and any exhibit hereto, the
terms of this Agreement shall govern.
(i)
Neither
this Agreement nor any provision hereof shall be amended, modified, waived or
discharged orally or by course of conduct, but only by a written agreement
signed by an authorized officer of the Pledgee. The Pledgee shall not
by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of the
Pledgee. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by the Pledgee of any right,
power and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy that the Pledgee would otherwise
have on any future occasion, whether similar in kind or otherwise.
(j)
This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or electronic delivery shall have the same force and effect as the
delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile or
electronic transmission shall also deliver an original executed counterpart, but
the failure to do so shall not affect the validity, enforceability or binding
effect of this Agreement.
(k)
The
Pledgor agrees that, if pursuant to Section 9.16 of the Credit Agreement, it
shall be required to cause a Subsidiary to become a pledgor hereunder, or if for
any reason the Pledgor desires any such Subsidiary to become a pledgor
hereunder, such Subsidiary shall execute and deliver to Pledgee a Pledge
Agreement Supplement in substantially the form of Exhibit A (a “
Pledge Supplement
”)
attached hereto and shall thereafter for all purposes be a party hereto and have
the same rights, benefits and obligations as a pledgor party hereto as if
originally named as a pledgor herein. The rights and obligations of
the Pledgor hereunder shall remain in full force and effect notwithstanding the
addition of any new pledgor as a party to this Agreement.
[Signature
page follows.]
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above
written.
PLEDGOR
|
|
GTE
COLOMBIA HOLDINGS LLC
|
|
By: Gran
Tierra Energy Cayman Islands II Inc., the General Manager and the Manager
of Series 1, Series 2 and Series 3 of GTE Colombia Holdings
LLC
|
By:
|
/s/ Martin Eden
|
Name:
Martin Eden
|
Title:
Chief Financial
Officer
|
By:
Gran Tierra Energy Inc., the Manager of Series 4, Series 5, Series 6,
Series 7, Series 8 and Series 9 of GTE Colombia Holdings
LLC
|
By:
|
/s/ Martin Eden
|
Name:
Martin Eden
|
Title:
Authorized
Person
|
c/o
Gran Tierra Energy Inc.
|
300,
611-10
th
Avenue SW
|
Calgary,
Alberta
|
Canada
T2R 0B2
|
Attention:
|
Chief
Financial Officer
|
Tel:
|
+1
(403) 265 3221
|
Fax:
|
+1
(403) 265 3242
|
Email:
|
martineden@grantierra.com
|
GP Pledge
Agreement
PLEDGEE
|
|
STANDARD
BANK PLC,
as
Administrative Agent for the Secured Parties
|
|
|
By:
|
/s/ Martin Revoredo
|
Name:
Martin Revoredo
|
Title: Senior
Vice President
|
|
|
By:
|
/s/
Roderick L. Fraser
|
Name: Roderick
L. Fraser
|
Title:
Managing Director, Global Head of Energy
Finance
|
Address
for Notices:
|
|
5th
Floor, Cannon Bridge House
|
25
Dowgate Hill
|
London
EC4R 2SB
|
Attention:
|
Howard
Baldock
|
Tel:
|
+44
(0) 20 7815 2701
|
Fax:
|
+44
(0) 20 7815 4032
|
Email:
|
howard.baldock@standardbank.com
and
|
|
london-loansadmin@standardbank.com
|
With
a copy to:
|
|
320
Park Avenue, 19th floor
|
New
York, NY 10022
|
United
States of America
|
Attention:
|
Maria
Ivulic
|
Tel:
|
+1
(212) 407 5164
|
Fax:
|
+1
(212) 407 5178
|
Email:
|
maria.ivulic@standardny.com
|
GP
Pledge Agreement
EXHIBIT A
TO
GP PLEDGE
AGREEMENT
FORM
OF
PLEDGE
SUPPLEMENT
This PLEDGE SUPPLEMENT, dated as
of __________, _____ (this “
Supplement
”),
supplements the GP Pledge Agreement, dated as of January 1, 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
“
Pledge
Agreement
”), among the initial signatories thereto and each other Person
which from time to time thereafter became a party thereto pursuant to
Section 10(k)
thereof
(each, individually, a “
Pledgor
” and,
collectively, the “
Pledgors
”), in favor
of the Pledgee and the Secured Parties in respect of membership interests in
ARGOSY ENERGY, LLC, a limited liability company organized under the laws of the
State of Delaware (f/k/a Argosy Energy Corp., a Delaware corporation)
(Registered No. 3234977).
WITNESSETH:
WHEREAS, capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Pledge Agreement;
WHEREAS, the Pledge Agreement provides
that additional parties may become pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this
Supplement;
WHEREAS, pursuant to the provisions of
Section 10(k)
of the Pledge Agreement, the undersigned is becoming a pledgor under the Pledge
Agreement; and
WHEREAS, the undersigned desires to
become a pledgor under the Pledge Agreement in order to induce the Banks to
continue to make Loans and provide other financial accommodations under the
Credit Agreement and to induce the Designated Hedge Counterparty to continue to
provide financial accommodations under the Designated Hedging Agreement as
consideration therefor;
NOW, THEREFORE, the undersigned agrees,
for the benefit of the Pledgee and the Secured Parties, as follows:
SECTION 1. In accordance
with the Pledge Agreement, the undersigned by its signature below becomes a
pledgor under the Pledge Agreement with the same force and effect as if it were
an original signatory thereto as a pledgor and the undersigned hereby (a) agrees
to all the terms and provisions of the Pledge Agreement applicable to it as a
pledgor thereunder and (b) represents and warrants that the representations and
warranties set forth in
Section 4
of the
Pledge Agreement are true and correct with respect to the undersigned on and as
of the date hereof, except as otherwise disclosed to the
Pledgee. In furtherance of the foregoing, each reference to a
“Pledgor” in the Pledge Agreement shall be deemed to include the
undersigned.
SECTION 2. The undersigned
hereby represents and warrants that this Supplement has been duly authorized,
executed and delivered by the undersigned and constitutes a legal, valid and
binding obligation of the undersigned, enforceable against it in accordance with
its terms.
SECTION 3. Except as
expressly supplemented hereby, the Pledge Agreement shall remain in full force
and effect in accordance with its terms.
SECTION 4. In the event any
one or more of the provisions contained in this Supplement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Pledge
Agreement shall not in any way be affected or impaired.
SECTION 5. Without limiting
the provisions of the Credit Agreement (or any other Loan Document, including
the Pledge Agreement), the undersigned agrees to reimburse the Pledgee and each
Secured Party for its reasonable out-of-pocket expenses in connection with this
Supplement, including attorneys’ fees and expenses of the Pledgee and the
Secured Parties.
SECTION 6. THE VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS SUPPLEMENT AND ANY DISPUTE ARISING OUT OF
THE RELATIONSHIP BETWEEN THE PLEDGOR AND PLEDGEE OR ANY SECURED PARTY, WHETHER
IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
SECTION 7. WITHOUT LIMITING
THE EFFECT OF
SECTION
8
OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY IRREVOCABLY CONSENTS
AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE
OF NEW YORK, SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICHEVER
PLEDGEE MAY ELECT, AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM
NON
CONVENIENS
WITH
RESPECT TO ANY ACTION INSTITUTED THEREIN ARISING UNDER THIS PLEDGE AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PLEDGOR AND PLEDGEE OR ANY SECURED PARTY IN
RESPECT OF THIS PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, AND AGREES
THAT ANY DISPUTE WITH RESPECT TO ANY SUCH MATTERS SHALL BE HEARD ONLY IN THE
COURTS DESCRIBED ABOVE (EXCEPT THAT PLEDGEE AND THE SECURED PARTIES SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE PLEDGOR OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE PLEDGEE DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON ANY COLLATERAL AT ANY TIME GRANTED BY THE
BORROWER OR THE PLEDGOR TO PLEDGEE OR ANY SECURED PARTY OR TO OTHERWISE ENFORCE
ITS RIGHTS AGAINST THE PLEDGOR OR ITS PROPERTY). THE UNDERSIGNED
HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS
WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING. IF FOR ANY REASON CT
CORPORATION SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE UNDERSIGNED AGREES
TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE PLEDGEE. THE
UNDERSIGNED HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY CERTIFIED MAIL
(RETURN RECEIPT REQUESTED) DIRECTED TO ITS ADDRESS SET FORTH ON THE SIGNATURE
PAGES HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS, OR, AT PLEDGEE’S
OPTION, BY SERVICE UPON THE PLEDGOR IN ANY OTHER MANNER PROVIDED UNDER THE RULES
OF ANY SUCH COURTS. WITHIN SIXTY (60) DAYS AFTER SUCH SERVICE, THE
PLEDGOR SO SERVED SHALL APPEAR IN ANSWER TO SUCH PROCESS, FAILING WHICH THE
PLEDGOR SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE ENTERED BY THE PLEDGEE
AGAINST THE PLEDGOR FOR THE AMOUNT OF THE CLAIM AND OTHER RELIEF
REQUESTED.
SECTION 8. WITHOUT LIMITING
THE EFFECT OF
SECTION
8
OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING
UNDER THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
THERETO IN RESPECT OF THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT THE PLEDGOR, ANY SECURED PARTY OR PLEDGEE MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
SECTION 9. This Supplement
hereby incorporates by reference the provisions of the Pledge Agreement, which
provisions are deemed to be a part hereof, and this Supplement shall be deemed
to be a part of the Pledge Agreement.
SECTION 10. This Supplement
may be executed in any number of counterparts, each of which shall be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Supplement by
telefacsimile shall have the same force and effect as the delivery of an
original executed counterpart of this Supplement. Any party
delivering an executed counterpart of this Supplement by telefacsimile shall
also deliver an original executed counterpart, but the failure to do so shall
not affect the validity, enforceability or binding effect of this
Supplement.
IN WITNESS WHEREOF, the parties hereto
have caused this Supplement to the Pledge Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the day
and year first above written.
[NAME
OF ADDITIONAL PLEDGOR]
|
|
By:
|
|
Name:
|
Title:
|
|
|
|
Address:
|
ACCEPTED
BY:
STANDARD
BANK PLC
for the
benefit of the Secured Parties