EXECUTION VERSION COLLECTION ACCOUNT PLEDGE AGREEMENT
Exhibit
10.8
EXECUTION
VERSION
THIS
AGREEMENT, dated as of August 24, 2009 (as amended, supplemented, amended and
restated or otherwise modified from time to time, this “Agreement”), is made
by SOLANA PETROLEUM EXPLORATION (COLOMBIA) LIMITED, an exempted company
organized under the laws of the Cayman Islands (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,
pursuant to that certain Amended and Restated Credit Agreement, dated as of
August 24, 2009 (as amended, supplemented or otherwise modified from time to
time, the “Credit
Agreement”), by and among Gran Tierra Energy Cayman Islands Inc., Gran
Tierra Energy Colombia, Ltd., Argosy Energy, LLC, the Pledgor, Solana Resources
Limited, the lenders from time to time party thereto 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) “Account Collateral”
means the Pledgor’s right, title and interest, whether now existing or hereafter
acquired or arising, in, to and under, the Collection Account (including any
successor accounts to any such accounts) and all amounts, investments and any
other property (including, but not limited to, checks and other instruments) at
any time deposited in or credited to any such account and all security
entitlements with respect thereto.
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(ii) “Collateral” has the
meaning set forth in Section 2(a) hereto.
(iii) “Collection Account”
shall mean account number 200-615151-001-97USD in the name of the Pledgor,
maintained with BNP Paribas in New York, New York, and each other deposit
account that may be maintained by the Pledgor from time to time in substitution
thereof with the Pledgee’s prior written consent.
(iv) “Deposit Account Control
Agreement” means a Deposit Account Control Agreement, in substantially
the form set forth on Exhibit A attached hereto, by and among the Pledgor, the
Pledgee and a depositary institution.
(v) “Obligations” means
the principal of and interest on the Loans made by the Banks to, and the Notes
held by each Bank from, and Reimbursement Obligations in respect of Letters of
Credit issued for the account of, and the Designated Hedging Obligations of, the
Borrower and all other amounts from time to time owing to the Secured Parties by
the Borrower under the Credit Agreement, under the Notes, under each Designated
Hedging Agreement and by any other Obligor under any of the other Loan Documents
to which such Obligor is a party, in each case strictly in accordance with the
terms hereof and thereof.
(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
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 “Collateral”):
(a) the Collection
Account;
(b) the Account
Collateral;
(c) 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
(d) the Pledgor’s books and
records with respect to any of the foregoing.
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.
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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 Pledgor is the record
and beneficial owner of, and has good title to, the Account Collateral pledged
by it hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except for Permitted Liens and Liens in favor of the
depositary institution permitted by the Deposit Account Control
Agreement.
(b) The Collateral is directly,
legally and beneficially owned by the Pledgor free and clear of all claims and
Liens of any kind, nature or description, except for Permitted Liens and Liens
in favor of the depositary institution permitted by the Deposit Account Control
Agreement.
(c) The Collateral 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 (other than the depositary institution
party to the Deposit Account Control Agreement), was or is necessary to the
validity and enforceability of this Agreement, except as expressly set forth
herein.
(d) The Pledgor shall not,
without the prior consent of the Pledgee, directly or indirectly, sell, assign,
transfer, or otherwise dispose of, the Collateral, nor create, incur or permit
any further Lien with respect to the Collateral other than as permitted in the
Credit Agreement.
(e) The Collection Account is
subject to a Deposit Account Control Agreement.
(f) The Pledgor shall keep full
and accurate books and records relating to the Collateral pledged by it
hereunder and stamp or otherwise xxxx 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.
(g) The Pledgor shall furnish,
or cause to be furnished, to the Pledgee such information concerning the
Collateral as the Pledgee may from time to time reasonably request.
(h) 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.
(i) The Pledgor waives to the
extent permissible under applicable law, its rights under Section 9-207 of the
UCC and agrees that the Collateral, 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.
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5. 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 (including
the Pledgee’s rights under Section 2.10(a) thereof), 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 may, in its good
faith discretion sell, transfer, assign, deliver or otherwise dispose of any and
all Collateral on such terms as the Pledgee may deem reasonable, for cash, upon
credit or for future delivery, 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 Collateral 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 Collateral is to be made, shall be deemed to be reasonable notice
thereof and any other notice. The Pledgee shall apply the cash
proceeds of Collateral actually received by the Pledgee from any sale,
foreclosure or other disposition of the Collateral 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.
(b) 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, 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.
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6. 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 any New
York state court 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 Borrower or 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 such Pledgor at its respective
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 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
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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.
7. 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 Collateral 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 Collateral shall
revert to the Pledgor. At the request of the Pledgor following any
such termination, the Pledgee shall deliver to the Pledgor any Collateral 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 Collateral, such Collateral 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 Collateral.
8. MISCELLANEOUS
(a) The Pledgor authorizes the
Pledgee to file or record UCC financing statements with respect to the
Collateral 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 Collateral.
(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 Collateral
granted to the Pledgee hereunder.
(c) Beyond the exercise of
reasonable care to assure the safe custody of the Collateral (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 Collateral upon surrendering it to the
Pledgor or foreclosure with respect thereto.
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(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 in accordance with Section 12.02 of the Credit Agreement.
(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 Borrower,
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.
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(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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
PLEDGOR
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SOLANA
PETROLEUM EXPLORATION
(COLOMBIA)
LIMITED
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By:
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/s/ Xxxxxx Xxxx
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Name:
Xxxxxx Xxxx
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Title: Director
and
Treasurer
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PLEDGEE,
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For
the benefit of the secured parties
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STANDARD
BANK PLC
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Director
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By: |
/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx
X. Xxxxxx
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Title:
Global Head of Oil & Gas,
Renewables
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EXHIBIT A
TO COLLECTION ACCOUNT
PLEDGE AGREEMENT
EXECUTION
VERSION
DEPOSIT
ACCOUNT CONTROL AGREEMENT
Deposit Account Control
Agreement, dated as of August 24, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Agreement”), by and
among Standard Bank Plc,
in its capacity as administrative agent under the Credit Agreement (as defined
in the Pledge Agreement referred to below) (“Secured Party”);
Solana Petroleum Exploration
(Colombia) Limited (“Debtor”); and BNP Paribas (“Bank”).
PREAMBLE:
1.
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Bank
has established deposit account number 200-615151-001-97-USD in the name
of Debtor (such account, together with any other demand, time, savings,
passbook or similar account established in replacement thereof or now or
hereafter maintained by the Debtor with the Bank, being collectively
referred to as the “Account”).
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2.
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Debtor
(a) is a party to that certain Collection Account Pledge Agreement, dated
as of August 24, 2009 (as amended, modified and supplemented from time to
time, the “Pledge
Agreement”), by Debtor in favor of the Secured Party, and (b)
pursuant to the Pledge Agreement, Debtor has granted a security interest
in its assets including, without limitation, the Account and any funds and
remittances to the Account including checks, ACH transfers, wires,
deposits and any other proceeds deposited in the Account (the “Funds”) to
secure the obligations referenced in such Pledge
Agreement.
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4.
Secured Party, Debtor and Bank are entering into this Agreement to perfect the
security interest of Secured Party in the Account.
TERMS:
Section 1. The
Account. All parties agree that the Account is a “deposit
account” within the meaning of Article 9 of the Uniform Commercial Code of the
State of New York (as amended from time to time, the “UCC”). Bank has not
and will not agree with any third party to comply with instructions or other
directions concerning the Account or the disposition of funds in the Account
originated by such third party without the prior written consent of Secured
Party and Debtor. The Bank shall not change the name or account number of the
Account without the prior written consent of Secured Party.
Section 2. Subordination of Security
Interest. Bank hereby subordinates all security interests,
encumbrances, claims and rights of setoff it may have, now or in the future,
against the Account or any funds in the Account, other than in connection with
(i) the payment of Bank’s (or its affiliate’s) fees, charges and expenses
pursuant to its agreement with Debtor relating to the Account, or pursuant to
this Agreement or otherwise related to the Account or transactions therein, (ii)
reversals of provisional credits, returned or chargeback items, reversals or
cancellations of payment orders and other electronic funds transfers and other
corrections or adjustments to the Account and transactions therein and (iii)
overdrafts on the Account.
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Section 3. Control. Bank may
(but is not required to) comply with instructions directing the disposition of
funds in the Account originated by Debtor or its authorized representatives
until such time as Secured Party delivers a written notice to Bank that Secured
Party is thereby exercising exclusive control over the Account. Such notice is
referred to herein as the “Notice of Exclusive Control” and shall be in the form
of Exhibit A hereto. After Bank receives a Notice of Exclusive
Control, it will cease complying with instructions concerning the Account or
funds on deposit therein originated by Debtor or its representatives and shall
thereafter comply with instructions originated by Secured Party directing
disposition of the funds in the Account without further consent by Debtor or any
other person.
Section 4. Statements, Confirmations
and Notices of Adverse Claims. Bank will (a) send copies of all
statements concerning the Account to each of Debtor and Secured Party at their
respective addresses referred to in Section 13 of this Agreement and (b) provide
promptly to Secured Party upon request, the Account balance. Upon receipt of
written notice of any lien, encumbrance or adverse claim against the Account or
any Funds credited thereto, Bank will make reasonable efforts to notify Secured
Party thereof. Debtor agrees to promptly review account statements for the
Account and to notify Bank of any errors or improper charges to the Account
within 30 days of the receipt of the end of month statement.
Section 5. Limited Responsibility of
Bank. Except for acting on Debtor’s instructions in violation
of Section 3 above following delivery of a Notice of Exclusive Control, Bank
shall have no responsibility or liability to Secured Party for complying with
instructions concerning the Account from Debtor or Debtor’s authorized
representatives which are received by Bank before Bank receives a Notice of
Exclusive Control and has had reasonable opportunity (not to exceed two business
days) to act on it, provided that (a) all
transactions involving or resulting in a transaction involving the Account
commenced by Debtor prior to the end of the second business day after Bank
receives such Notice (the “Effective Time”) and
completed or processed thereafter shall not be deemed a violation of this
Agreement and (b) Bank (at its discretion and without any obligation to do so)
may cease honoring Debtor’s instructions regarding the Account and/or honor
Secured Party’s instructions concerning the Account at any time or from time to
time after it becomes aware that Secured Party has sent to it a Notice of
Exclusive Control but prior to the Effective Time (including without limitation,
halting, reversing or redirecting any transaction referred to in clause (a)
hereof), with no liability whatsoever to the Debtor or to any other party for
doing so. Notwithstanding anything to the contrary in this Agreement:
(a) Bank shall have only the duties and responsibilities with respect to the
matters set forth herein as is expressly set forth in writing herein and shall
not be deemed to be an agent, bailee or fiduciary or any party hereto; (b) Bank
shall be fully protected in acting or refraining from acting in good faith
without investigation of any notice (including without limitation a Notice of
Exclusive Control), instruction or request purportedly furnished to it by Debtor
or Secured Party in accordance with the terms hereof, in which case the parties
hereto agree that Bank has no duty to make further inquiry whatsoever and even
if the Debtor notifies Bank that Secured Party is not legally entitled to
originate any such notice (including a Notice of Exclusive Control), instruction
or request; (c) it is hereby acknowledged and agreed that Bank has no knowledge
of (and is not required to know) the terms and provisions of the Pledge
Agreement referred to above or any other related documentation or whether any
actions by Secured Party (including without limitation the sending of a Notice
of Exclusive Control), Debtor or any other person or entity are permitted or a
breach thereunder or consistent or inconsistent therewith, (d) Bank shall not be
liable to any party hereto or to any other person for any action or failure to
act under in connection with this Agreement except to the extent such conduct
constitutes its own willful misconduct or gross negligence as finally determined
by a court of competent jurisdiction (and to the maximum extent permitted by
law, shall under no circumstances be liable for an incidental, indirect,
special, consequential or punitive damages) and (e) Bank shall not be liable for
losses or delays caused by force majeure, interruption or malfunction of
computer, transmission or communications facilities, labor difficulties, court
order or decree, the commencement of bankruptcy or other similar proceedings or
other matters beyond Bank’s reasonable control.
12
Section 6. Indemnification of Bank.
Debtor and, following the delivery of a Notice of Exclusive Control by
Secured Party or in respect of any notice or direction by Secured Party, Secured
Party hereby agree to indemnify and hold harmless Bank, its directors, officers,
agents and employees against any and all claims, causes of action, liabilities,
lawsuits, demands and damages, including without limitation, any and all court
costs and reasonable attorney’s fees, in any way related to or arising out of or
in connection with this Agreement or any action taken or not taken pursuant
hereto, except to the extent caused by Bank’s gross negligence or willful
misconduct as finally determined by a court of competent
jurisdiction.
Section 7. Customer
Agreement. In the event of a conflict between this Agreement
and any other agreement between the Bank and the Debtor, the terms of this
Agreement will prevail; provided, however, that this
Agreement shall not alter or affect any mandatory arbitration provision
currently in effect between Bank and Debtor pursuant to a separate
agreement.
Section 8.
Termination. This Agreement shall continue in effect until
Secured Party has notified Bank in writing that this Agreement, or its security
interest in the Account and the Funds therein, is terminated (a “Termination Notice”).
Upon receipt of a Termination Notice, the Bank’s obligations hereunder with
respect to the operation and maintenance of the Account after the receipt of
such notice shall terminate, Secured Party shall have no further right to
originate instructions concerning the Account and any previous Notice of
Exclusive Control delivered by Secured Party shall be deemed to be of no further
force and effect. Additionally, Bank may terminate this Agreement, as
specified in Section 13 below, after providing (a) thirty (30) days notice to
Secured Party and Debtor or (b) five (5) days notice if either (i) Secured Party
or Debtor breaches any of their respective obligations under this Agreement or
(ii) Debtor breaches of its obligations under its agreement with Bank relating
to the Account.
Section 9. Complete
Agreement. This Agreement and the instructions and notices
required or permitted to be executed and delivered hereunder set forth the
entire agreement of the parties with respect to the subject matter hereof, and,
subject to Section 7 above, supersede any prior agreement and contemporaneous
oral agreements of the parties concerning its subject matter.
13
Section 10.
Amendments. No amendment, modification or (except as otherwise
specified in Section 8 above) termination of this Agreement, nor any assignment
of any rights hereunder (except to the extent contemplated under Section 12
below), shall be binding on any party hereto unless it is in writing and is
signed by each of the parties hereto, and any attempt to so amend, modify,
terminate or assign except pursuant to such a writing shall be null and
void. No waiver of any rights hereunder shall be binding on any party
hereto unless such waiver is in writing and signed by the party against whom
enforcement is sought.
Section 11.
Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement,
other than those provisions held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were
omitted.
Section 12.
Successors. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
corporate successors or heirs and personal representatives. This
Agreement may be assigned by Secured Party to any successor of Secured Party
under the Pledge Agreement with Debtor, provided that written
notice thereof is given by Secured Party to Bank.
Section 13.
Notices. Except as otherwise expressly provided herein, any
notice, order, instruction, request or other communication required or permitted
to be given under this Agreement shall be in writing and deemed to have been
properly given when delivered in person, or when sent by telecopy or other
electronic means and electronic confirmation of error-free receipt is received
or upon receipt of notice sent by certified or registered United States mail,
return receipt requested, postage prepaid, addressed to the party at the
“Address for Notices” specified below the name of such party on the signature
pages hereof. Any party may change its address for notices in the
manner set forth above.
Section 14. Other
Claims. Bank does not know of any claim to or interest in the
Account, except for claims and interests of the parties referred to in this
Agreement.
Section 15.
Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
Section 16. Choice of Law; Waiver of
Jury Trial. This Agreement shall be governed by and construed
in accordance with the law of the State of New York. The parties
agree that New York is the “bank’s jurisdiction” for purposes of the UCC. Each
of the parties hereto waives trial by jury in any action, proceeding or
counterclaim arising under or in connection with this Agreement.
Section 17. Submission to
Jurisdiction. Each party to this Agreement submits for itself
and its property in any legal action or proceeding relating to this Agreement to
the non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof. Each party consents that
any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same.
14
STANDARD
BANK PLC
|
|
As
secured party
|
|
By:
|
/s/ Xxxxxx Xxxxxxxx
|
Name:
Xxxxxx Xxxxxxxx
|
|
Title:
Director
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxx
|
Name:
Xxxxxxxx X. Xxxxxx
|
|
Title:
Global Head of Oil & Gas, Renewables
|
|
Address
for Notices:
|
|
Standard
Bank Plc
|
|
c/o
Standard Americas, Inc.
|
|
Business
Analytics & Transaction Management Group
|
|
000
Xxxx Xxxxxx, 00xx Xxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Xxxxxx
Xxxxxx of America
|
|
Attention:
Xxxxx Ivulic
|
|
Tel:
x0 (000) 000 0000
|
|
Fax:
x0 (000) 000 0000
|
|
Email:
xxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx
|
15
With
a copy to:
|
1211
Avenue of the Americas
|
Xxx
Xxxx, XX 00000
|
Xxxxxx
Xxxxxx of America
|
Attention: Xxxx
Xxxxxxxxxx
|
Tel:
x0 (000) 000 0000
|
Fax:
x0 (000) 000 0000
|
Email:
xxxx.xxxxxxxxxx@xxxxxxxxxx.xxx
|
SOLANA
PETROLEUM EXPLORATION
(COLOMBIA)
LIMITED
|
|
As debtor | |
By:
|
/s/ Xxxxxx Xxxx
|
Name:
Xxxxxx Xxxx
|
|
Title:
Director and
Treasurer
|
Address
for Notices:
|
|
c/o
Gran Tierra Energy Inc.
|
|
300,
000 00xx Xxxxxx XX
|
|
Xxxxxxx,
Xxxxxxx
|
|
Xxxxxx
X0X 0X0
|
|
Attention:
|
Chief
Financial Officer
|
Tel:
|
(000)
000 0000
|
Fax:
|
(000)
000 0000
|
Email:
|
xxxxxxxxxx@xxxxxxxxxx.xxx
|
16
BNP
PARIBAS,
|
|
As
Bank
|
|
By:
|
/s/ Xxxxxx Xxx
|
Name:
Xxxxxx Xxx
|
|
Title:
Vice President
|
|
By:
|
/s/ Xxxx Xxxxxx Xxxxxxx
|
Name:
Xxxx Xxxxxx Xxxxxxx
|
|
Title:
Vice President
|
|
Address
for Notices:
|
|
BNP
Paribas
|
|
000
0xx
Xxxxxx
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention: Xxxx
Xxxxxxx
|
|
Tel:
x0 (000) 000-0000
|
|
Fax:
x0 (000) 000-0000
|
|
Email:
xxxx.xxxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
|
17
EXHIBIT
A
NOTICE OF
EXCLUSIVE CONTROL
[Date]
BNP
Paribas 000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:
Deposit Account Control Agreement (the “Agreement”) by and
among BNP Paribas,
as Bank,
Standard Bank Plc, as Secured Party, and Solana Petroleum Exploration
(Colombia)
Limited,
as Debtor.
Ladies
and Gentlemen:
This
constitutes a Notice of Exclusive Control as referred to in Section 3 of the
Agreement.
STANDARD
BANK
PLC, as Secured
Party
|
|
By:
|
|
__
Name:
|
|
Title:
|
|
By:
|
|
__
Name:
|
|
Title:
|
|
18