Sale and Purchase Agreement for Suroriente, dated February 20, 2019
VETRA EXPLORACIÓN y PRODUCCIÓN COLOMBIA S.A.S.
SOUTHEAST INVESTMENT CORPORATION, through its Colombian branch,
SOUTHEAST INVESTMENT CORPORATION
INVERSIONES FRIEIRA, S.L.
VETRA ENERGY GROUP LLC
SALE AND PURCHASE AGREEMENT*
TABLE OF CONTENTS
|Article 1 DEFINITIONS AND INTERPRETATION||7|
|Article 2 ASSIGNMENT OF INTEREST||15|
|2.3||Execution of other Documents||15|
|2.5||Actions after Execution Date||16|
|Article 3 closing||16|
|3.3||Effects of Closing||16|
|3.4||Actions on and after Closing Date||17|
|3.5||Approvals and Waivers||18|
|Article 4 CONDITIONS PRECEDENT TO CLOSING||19|
|4.1||Conditions to the Obligations of Purchaser||19|
|4.2||Conditions to the Obligations of Seller||19|
|Article 5 . PURCHASE PRICE AND PAYMENT||20|
|5.2||Payment of Purchase Price||20|
|Article 6 OBLIGATIONS OF THE PARTIES||20|
|Article 7 REPRESENTATIONS AND WARRANTIES OF THE PARTIES||23|
|7.1||Seller’s Representations and Warranties||23|
|7.2||Limitations of Seller’s Representations and Warranties||29|
|7.3||Purchaser’s Representations and Warranties||29|
|7.4||Mutual Representations and Warranties||31|
|7.5||Disclaimer of Other Representations and Warranties||31|
|7.6||Timing of Representations||32|
|Article 8 LIABILITIES AND CLAIMS||32|
|8.1||Liability Acknowledgement Agreement||32|
|Article 9 Settlement of Claims||32|
|Article 10 TAX||32|
Article 11 CONFIDENTIALITY
|11.3||Limit in time||34|
|Article 12 Costs||34|
|Article 13 Entire agreement||34|
|Article 14 Continuing effect||34|
|Article 15 Amendments and waivers||35|
|Article 16 Further assurance and assistance||35|
|Article 17 Counterparts||35|
|17.1||Any number of counterparts||35|
|Article 18 NOTICES||35|
|18.2||When notices take effect||37|
|Article 19 ARBITRATION||37|
|Article 20 Governing law||38|
|Article 21 INDEPENDENT LEGAL ADVICE||38|
|Article 22 Seller’s assignees||38|
|Article 23 GENERAL PROVISIONS||39|
|23.4||Severance of Invalid Provisions||39|
|23.6||Priority of Agreement||40|
|SCHEDULE A CONTRACT AREA||A-1|
|SCHEDULE B SELLER’S INTEREST||B-1|
|SCHEDULE C MATERIAL CONTRACTS||C-1|
|SCHEDULE D HYDROCARBON SALES CONTRACTS||D-1|
|SCHEDULE E MANDATE AGREEMENT||E-1|
|SCHEDULE F EMPLOYEES||F-1|
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is dated 20 February, 2019 (the “Execution Date”) and made between:
Vetra Exploración y Producción Colombia S.A.S., a company incorporated and existing under the laws of Colombia, whose registered office is at Avenida Calle 82 No. 10-33, 7th Floor, Bogotá, Colombia;
Southeast Investment Corporation, a company incorporated and existing under the laws of Panama, acting through its Colombian branch, Southeast Investment Corporation, whose registered office is at c/o Patton, Moreno & Asvat, 8th Floor, Capital Plaza Building Roberta Motta Ave., Costa Del Este, Panama City, Republic of Panama.
Inversiones Frieira, S.L., a company incorporated and existing under the laws of the Kingdom of Spain whose registered office is at Avenida de Linares Rivas 1, bajo entreplanta, 15005 La Coruña, Spain;
Vetra Energy Group LLC, a company incorporated under the laws of Delaware, whose registered office is at 1209 Orange Street Wilmington, Delaware, United States.
(jointly, the “Parent Companies”);
Parent Companies enter into this Agreement for the purposes of assuming the obligations set forth under Article 22 of this Agreement.
WHEREAS, simultaneously with the execution of this Agreement, (i) Vetra Energía, S.L. and Gran Tierra Resources Limited have entered into the Share Sale Agreement (as defined below) for the issued share capital of Vetra Southeast S.L.U and indirectly, Vetra Energía, S.L.’s interest in its interest in Southeast Investment Corporation, (ii) Seller and Gran Tierra Energy Colombia, LLC have entered the Asset Sale Agreement (Exploration Blocks) (as this term is defined in the Share Sale Agreement) and (iii) Vetra Energía, S.L., Seller, Gran Tierra Resources Limited, Gran Tierra Energy Colombia LLC and Southeast Investment Corporation have entered into the Liability Acknowledgement Agreement (the as defined below, and together with the Asset Sale Agreement (Exploration Blocks) and the Share Sale Agreement, the “Relevant Agreements”) to regulate, among other things, the liability of the corresponding parties under this Agreement, the Share Sale Agreement and the Asset Sale Agreement (Exploration Blocks).
WHEREAS, it is the intention of the Parties that Closing will occur immediately after and on the same day as the Closing Date set out in the Share Sale Agreement, and not to close the transactions contemplated in the Share Sale Agreement without also completing the Closing as set out herein.
WHEREAS, an affiliate of the Purchaser, will, by a series of directions to pay, be paying the Purchase Price on behalf of the Purchaser, to the Seller;
WHEREAS, Seller is willing to assign and transfer the Assigned Interest (as defined below) to Purchaser and Purchaser is willing to acquire the Assigned Interest, in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of premises and the mutual covenants and obligations set out below and to be performed, the Parties agree as follows:
DEFINITIONS AND INTERPRETATION
As used in this Agreement, the following capitalized words and terms shall have the meaning ascribed to them below:
“Affiliate” means with respect to any person, any other person controlling, controlled by or under common control with such first person. For purposes of this definition and this Agreement, the term “control” (and correlative terms) means (a) the ownership of fifty percent (50%) or more of the equity interest in a person, and/or (b) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a person;
“Agreement” means this Sale and Purchase Agreement together with its Schedules and any extension, renewal or amendment hereof agreed to in writing by the Parties;
“Applicable Laws” means laws, regulations, statutes, codes, rules, orders, permits, policies, licenses, certifications, decrees, standards or interpretations imposed by any Governmental Authority that apply to this Agreement, the Seller, the Purchaser or to their assets, activities or contracts. For the avoidance of doubt, “Applicable Laws” also include any applicable anti-corruption laws including the FCPA and the CFPOA;
“Asset Sale Agreement PUT-8” (PUT-8) means the Sale and Purchase Agreement dated as of the Execution Date between Vetra E&P as seller and GTEC, as purchaser;
“Asset Sale Agreement LLA-5”(LLA-5) means the Sale and Purchase Agreement dated as of the Execution Date between Vetra E&P as seller and GTEC, as purchaser;
“Asset Sale Agreements” means collectively, the Agreement, the Asset Sale Agreement PUT-8 and Asset Sale Agreement LLA-5;
“Assigned Interest” means the Suroriente Assigned Interest, including operatorship under the CPI Contract;
“Assignment of Obligations” has the meaning ascribed to it in Article 22;
“Assignment of Rights” has the meaning ascribed to it in Article 22;
“Associated Parties” means the relevant Party’s employees, directors, Affiliates, agents, intermediaries, consultants, other third party representatives, or any other person, while performing services for or on behalf of the relevant Party.
“Benefits” means, collectively, all income, receipts, rebates and other benefits which arise from, based upon, related to or associated with the Assigned Interest, including in respect of taxation relating to operations under the CPI Contract in respect of the Assigned Interest;
“Books and Records” includes all records, books, documents, licenses, reports and data which relate to the CPI Contract, the Contract Area and the Tangible Assets, or any of them;
“Business Day” means any day other than a Saturday, Sunday, or a day on which commercial banks are required or authorized by law to be closed for business in Madrid, Spain, Bogotá, Colombia, or Calgary, Canada;
“CCE” means the Consorcio Colombia Energy, which is the “associate” under the CPI Contract;
“Claim” has the meaning ascribed to it in the Liability Acknowledgement Agreement;
“Closing” means the completion of the sale of the Suroriente Assigned Interest in accordance with Article 3;
“Closing Date” has the meaning ascribed to it in the Share Sale Agreement;
“Conditions Precedent” means all of the conditions enumerated in Sections 4.1 and 4.3;
“Contract Amendment” means an amendment to the CPI Contract giving effect to the transfer of the Assigned Interest from Seller to Purchaser, in the form determined in accordance with Section 3.5(b)(ii);
“Contract Area” means the area or block subject to the CPI Contract, as is more described for convenience in the attached Schedule A;
“CPI Contract” means the Incremental Production Contract with Ecopetrol for the Suroriente Block, and any and all extensions, renewals or amendments;
“CPI Documents” means the CPI Contract and any other documents pertaining to the CPI Interests, including any joint operating agreements, farm-outs, any joint venture or similar operational agreements;
“CPI Interests” means the interest of Seller in the CPI Contract as described in Schedule B;
“Credit Agreement” means the amended and restated credit agreement signed between Seller, Vetra Southeast S.L.U., and Citibank, N.A. (as administrative Agent) and Citigroup Global Markets Inc. and Banca de Inversión Bancolombia S.A. Corporación Financiera (as Co-lead arrangers) dated as of August 1, 2016;
“Credit Amount” has the meaning ascribed to it in the Liability Acknowledgement Agreement;
“Deed of Assignment and Assumption Agreement” means the instrument to be filed with Ecopetrol, whereby Seller transfers and conveys the Assigned Interest to Purchaser, and Purchaser formally accepts and receives the Assigned Interest, in a form to be agreed upon by the Parties;
“Deed of Termination of the Sales Contract” means the instrument whereby the Parties will terminate the Sales Contract, in a form to be agreed upon by the Parties, to be effective on the Closing Date;
“Disclosed Materials” has the meaning set out in Share Sale Agreement;
“Dollars” or “US$” means the lawful currency from time to time of the United States of America;
“Ecopetrol” means Ecopetrol S.A.;
“Ecopetrol Claim” has the meaning ascribed to it in the Liability Acknowledgement Agreement;
“Ecopetrol Notice” means the submission to Ecopetrol of the notice required under the CPI Contract in connection with the Transaction, in the form to be agreed upon by the Parties;
“Effective Date” means the Execution Date;
“Employees” means the employees described in Schedule F;
“Employment Assignments” means the assignment and novation agreements in respect of the Employment Contracts from Seller to Purchaser and/or a designate of Purchaser (with Purchaser or its designate identified to Seller for each Employee prior to Closing);
“Employment Contracts” means the contracts of engagement or employment of the Employees;
“Encumbrance(s)” means any and all liens, charges (fixed or floating), prior claim, options, carried interest, security interests, Royalties, pledges, options, net profit interests, carried working interest, farm-out (or similar) agreement under which earning has not occurred or a payment is still pending, rights of pre-emption or any other agreement that would affect Seller´s ability to freely dispose the Assigned Interest or any portion thereof, restrictions, mortgages, adverse claims, title retention arrangements, leases, and any other agreements or arrangements having a similar effect or any agreement to create any of the foregoing;
“Environment” means the components of the earth and includes ambient air, land, surface and sub-surface strata, groundwater, lake, river or other surface water, all layers of the atmosphere, all organic and inorganic matter and living organisms, and the interacting natural systems that include such components;
“Environmental Laws” means all Laws relating to pollution or the protection of natural resources or the Environment or health and human safety, including those Laws relating to the release or threatened release of, or exposure to, hazardous substances, and those Laws regulating the generation, manufacture, distribution, use, processing, treatment, storage, transportation, disposal, arrangement for transport or disposal, or other management of hazardous substances;
“Estimated Working Capital” has the meaning ascribed to it in the Share Sale Agreement;
“Excluded Asset Claims” means any Claims arising from the breach of Seller’s Warranties in Sections 7.1(1), 7.1(2), 7.1(12), 7.4(1), and the Ross Energy Claim;
“Execution Date” means the date upon which this Agreement is executed by the Parties, as set out at the beginning of this Agreement;
“Facilities” means all pipelines, plant, machinery, wells (including production, injection, disposal, suspended, abandoned), facilities and all other installations and structures which are used in connection with the CPI Contract, which are Joint Property;
“Force Majeure” has the meaning as is set out in the CPI Contract;
“Governmental Authority” has the meaning ascribed to it in the Share Sale Agreement;
“Hazardous Substance” means any substance that, by its nature or its use, is regulated or as to which liability might arise under any Environmental Law including any natural or artificial substance or thing (whether in solid, liquid, gas, vapour or other form and whether alone or in combination with any other substance or thing) capable of causing harm to any living organism supported by the Environment, or damage to the Environment, including Hydrocarbons and petroleum products, pollutants, asbestos containing materials, polychlorinated biphenyls, radioactive materials, urea formaldehyde foam insulation, naturally occurring radioactive materials or radon gas, contaminants, naturally occurring radioactive material, radiation, electricity, heat and any waste;
“Hydrocarbons” means any substances including liquid and gaseous hydrocarbons, with respect to which the right to explore for and produce is granted pursuant to the CPI Contract;
“Hydrocarbon Sales Contracts” means all contracts for the processing, transportation, storage, marketing and sale of Hydrocarbons produced from or in respect of the Contract Area, a complete listing of which is set forth in Schedule D;
“Interim Period” means the period commencing from the Execution Date and ending on the Closing Date;
“Invoice” has the meaning ascribed to it in Section 5.1;
“JOA” means the Joint Operating Agreement signed between the Parties on August 1, 2015, which pertains to the CPI Contract, and any amendment thereto;
“Joint Property” means joint property under the JOA;
“Knowledge” means, with respect to Seller, the actual knowledge (after reasonable inquiry, but otherwise excluding constructive or imputed knowledge) of the directors, officers, and senior managers of the Seller;
“Liability Acknowledgement Agreement” means the Liability Acknowledgement Agreement dated as of the Execution Date among Vetra Energía, S.L., Seller, Gran Tierra Resources Limited, Gran Tierra Energy Colombia, LLC, and Purchaser;
“Losses” has the meaning ascribed to it in the Liability Acknowledgement Agreement.;
“Material Contracts” means the Hydrocarbon Sales Contracts and all other material contracts, agreements, instruments, transactions and undertakings pertaining to the CPI Contract, the Contract Area, the Tangible Assets or any of them, a complete listing of which is set forth in Schedule C;
“Miscellaneous Interests” means all property, assets, interests and rights of Seller pertaining to the CPI Contract, the Contract Area and the Tangible Assets, or any of them, but only to the extent that such property, assets, interests and rights pertain to the CPI Contract, the Contract Area and the Tangible Assets, or any of them, including any and all of the following:
|(a)||the Material Contracts;|
|(b)||rights to own, enter upon, use or occupy the surface of any lands which are or may be used to gain access to, or conduct operations on, the Contract Area, or to gain access to, or otherwise use, the Tangible Assets or any of them;|
|(c)||licenses, permits, approvals and all other authorizations pertaining to the conduct of operations on or in respect of the Contract Area and the Tangible Assets, or any of them;|
|(d)||the Books and Records;|
|(e)||the Technical Data;|
|(f)||all wells, including well bores and casing, upon, or with bottom-hole locations situated within, the Contract Area; and|
|(g)||all deposits and contributions to funds maintained in respect of the CPI Contract, the Contract Area and the Tangible Assets, or any of them.|
“Money Laundering Laws” means financial recordkeeping and reporting requirements and requirements as to identification of persons of the money laundering statutes, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued by Governmental Authorities;
“Obligation and Plans” has the meaning ascribed to it in Section 7.1(7)(a);
“OFAC” has the meaning ascribed to it in Section 7.1(12)(e);
“Operations” means the operations on or pertaining to the CPI Contract conducted under the CPI Contract and/or the JOA;
“Operator” means Seller;
“Parent Companies” has the meaning ascribed to it in Section 22.1;
“Participating Interest” means, as to any party to the CPI Documents, the undivided interest of such party expressed as a percentage of the total interests of all parties to the CCE, CPI Contract, in the rights and obligations derived from the CPI Contract and the JOA;
“Preferential Rights” means a right of first refusal, pre-emptive right of purchase or similar right whereby any Third Party has the right to acquire or purchase the Assigned Interest, or affect the terms of the Assigned Interest in any way, whether arising under contract, Law, or otherwise;
“Purchase Price” shall mean the amount payable by Purchaser to Seller as set forth in Section 5.1;
“Regulatory Approval” means: (i) the earlier of: (A) confirmation of receipt by the Superintendence of Industry and Commerce of the Republic of Colombia in respect of the SIC Notice; (B) the date that is ten (10) Business Days following the submission of the SIC Notice if the Superintendence of Industry and Commerce of the Republic of Colombia has not sought further information with respect to the SIC Notice; and (C) if the Superintendence of Industry and Commerce of the Republic of Colombia has sought further information with respect to the SIC Notice, the date on which receipt of the complete submission of additional information is received by the Superintendence of Industry and Commerce;
“Release” means any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, seeping, dumping, or disposing;
“Ross Energy Claim” has the meaning given to it in the Share Sale Agreement;
“Sales Contract” means the Sales Contract signed between the Parties on April 29, 2016, as amended by Amendment No. 1 dated June 21, 2017, which relates to Cohembí, Quinde, and Quillacinga crude oil;
“SDNs” has the meaning given in Section 7.1(12)(e);
“Seller’s Warranties” means the representations and warranties set out in Section 7.1 given and made by Seller in favour of the Purchaser;
“Share Sale Agreement” means the Sale and Purchase Agreement dated as of the Execution date between Vetra Energía, S.L. as seller and Gran Tierra Resources Limited, as purchaser for the issued share capital of Vetra Southeast S.L.U;
“SIC Notice” means the submission of such notice or notices to the Superintendent of Industry and Commerce of the Republic of Colombia under Law 1340 of 2009 required in connection with the Transaction;
“Suroriente Assigned Interest” means Sellers entire interest in the CCE, the JOA and the CPI Contract, comprising of an undivided thirty-seven point nine three five three percent Participating Interest in the CCE and JOA (37.9353%), which is equivalent to an undivided nineteen point seven two six four percent (19.7264%) indirect Participating Interest in and under the CPI Contract, together with an undivided nineteen point seven two six four percent (19.7264%) legal and beneficial interest in and to all Tangible Assets and Miscellaneous Interests relating to CPI Contract or operations under the CPI Contract;
“Tangible Assets” means the Facilities and any other tangible property and assets which are used or are intended to be used to produce, process, gather, treat, measure, make marketable or inject Hydrocarbons or any of them or in connection with water injection or removal operations on or in respect of the Contract Area and/or operations conducted under the CPI Contract, that are Joint Property, or otherwise owned by Seller;
“Tax” means all forms of taxation whether direct or indirect, and whether levied by reference to income, profits, gains, net wealth, asset value, turnover, added value or other sales tax, and statutory, governmental, state, provincial, local government or municipal imposition duties, contributions, rates and levies (including without limitation any payroll taxes), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and in respect of any person, and all penalties, charges, costs and interest relating thereto;
“Technical Data” includes all seismic, seismic data (and all processed versions thereof, including for but not limited to all 2D and 3D seismic, SEGY files, field notes, field tapes, survey notes, seismic projects, interpretation projects and any seismic in fulfillment of contractual commitments), geological (including all geological studies such as those that may have been made in fulfillment of commitments to the ANH or Ecopetrol), geophysical, engineering, well files, Facility and other records, files, reports, data, correspondence and documents that pertain to the Contract Area and the Tangible Assets, or any of them (including Seller’s evaluations and interpretations of any of the foregoing and all documents of title relating to the Contract Area);
“Third Party” means any person other than the Parties;
“Third Party Claim” has the meaning ascribed to it in the Liability Acknowledgement Agreement; and
“Transaction” means the purchase and sale of the Assigned Interest as contemplated by this Agreement.
|(a)||Headings. The topical headings used in this Agreement are for convenience only and shall not be construed as having any substantive significance or as indicating that all of the provisions of this Agreement relating to any topic are to be found in any particular Article.|
|(b)||Singular and Plural. Reference to the singular includes a reference to the plural and vice versa.|
|(c)||Gender. Reference to any gender includes a reference to all other genders.|
|(d)||Article. Unless otherwise provided, reference to any Article or Section or Schedule means an Article or Section or Schedule of the Agreement.|
|(e)||Include. “include” and “including” shall mean to be inclusive without limiting the generality of the description preceding such term and are used in an illustrative sense and not a limiting sense.|
|(f)||Statutory references. A reference to an enactment or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment or statutory provision and is a reference to that enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, re-enacted or replaced.|
|(g)||Time. Any reference to days herein is a reference to calendar days unless specifically stated otherwise, and where the phrase “within” or “at least” is used with reference to a specific number of days herein, the day of receipt of the relevant notice or the day of the relevant event, as the case may be, shall be excluded in determining the relevant time period. Notwithstanding the foregoing sentence, in the event the time for submitting any notice expires on a day that is not a Business Day, the time for submitting such notice shall be extended to the next following Business Day.|
|(h)||Person. Reference to a “person” includes individuals, firms, partnerships, limited liability partnerships, companies, bodies corporate, corporations, unincorporated associations, governments, authorities, agencies and trusts (in each case, whether or not having separate legal personality), and shall include such person’s heirs and lawful successors and assigns.|
|(i)||Legal Term. References to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, Court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to refer to the term which most nearly corresponds to the English legal term in that jurisdiction.|
Attached to and forming part of this Agreement is the following Schedules:
SCHEDULE A CONTRACT AREA
SCHEDULE B SELLER’S INTEREST
SCHEDULE C MATERIAL CONTRACTS
SCHEDULE D HYDROCARBON SALES CONTRACTS
SCHEDULE E MANDATE AGREEMENT
SCHEDULE F EMPLOYEES
Such Schedule is incorporated herein by reference as though contained in the body hereof. Wherever any term or condition of the Schedule conflicts or is at variance with any term or condition in the body of this Agreement, such term or condition in the body of this Agreement shall prevail.
ASSIGNMENT OF INTEREST
In exchange for the mutual covenants contained in this Agreement, including Purchaser’s covenant to pay the Purchase Price and subject to satisfaction of the Conditions Precedent, Seller agrees to assign, transfer and convey to Purchaser the Assigned Interest, free and clear from any Encumbrances, and Purchaser agrees to accept such assignment, transfer and conveyance of the Assigned Interest, upon the terms and conditions contained in this Agreement. The Parties shall execute and deliver such agreements, assignments, certificates, or documents as may be requested by Purchaser to evidence such assignment, transfer and conveyance, though the Parties agree that no such agreements, assignments, certificates, or documents are required in order to effect such assignment, transfer and conveyance.
Seller and Purchaser shall be bound by this Agreement as of the date hereof and shall fully perform all of their respective obligations under this Agreement.
|2.3||Execution of other Documents|
As soon as practicable, following the Closing Date the Parties shall execute the Deed of Assignment and Assumption Agreement, and the Deed of Termination of the Sales Contract. In the event that it is necessary to amend the form of the Deed of Assignment and Assumption Agreement to comply with Laws or Ecopetrol’s requests, the Parties shall act reasonably and in good faith to make such amendments.
The Parties acknowledge and accept that, subject to satisfaction of the Conditions Precedent, as of the Closing Date the Participating Interests in the CPI Contract shall be:
Said ownership shall be registered, at Purchaser’s risk, with Ecopetrol by submitting the Ecopetrol Notice and signing the Contract Amendment.
|2.5||Actions after Execution Date|
The Seller and Purchaser, as applicable, shall immediately and forthwith after the Execution Date file the Ecopetrol Notice and the SIC Notice, in a form to be agreed upon by Purchaser.
The Closing shall occur on the Closing Date, being the third (3rd) Business Day following the date upon which all Conditions Precedent are satisfied, or such other date as may be mutually agreed upon by the Parties.
Purchaser, either acting directly, or through an Affiliate who shall make the payment on behalf of the Purchaser, shall deliver the Purchase Price, to the Seller.
|3.3||Effects of Closing|
|(a)||Provided Closing occurs, the Parties agree that as of the Effective Date:|
|(i)||Purchaser shall be entitled to receive all income relating to the Assigned Interest;|
|(ii)||Purchaser shall be considered as the beneficial owner of the Assigned Interest, and shall have all economic rights (including the right to receive all income) arising from the Assigned Interest on and from this date as if the Contract Amendment has already been signed. From and after the Effective Date, Seller shall hold the Assigned Interest and all rights and benefits arising therefrom on behalf and for the sole benefit of the Purchaser. Seller shall act in good faith and with due care and diligence in taking all reasonable actions required to secure that Purchaser receives all rights, benefits and economic and legal attributes vested into the Purchaser as per the terms of this Agreement;|
|(iii)||Purchaser shall be responsible for and pay all costs, expenses and liabilities applicable to the Assigned Interest in accordance with the CPI Contract and the JOA arising or caused after the Effective Date;|
|(iv)||Purchaser shall be entitled to be the Operator and conduct Operations at its sole discretion in accordance with and under the terms of the CPI Contract and the JOA. In any case, on Closing Date Seller shall grant a mandate agreement to Purchaser in the terms and conditions set forth in Schedule E hereto, authorizing Purchaser to conduct the Operations, as per the terms of the JOA. In addition, Purchaser and Seller hereby agree to use their best efforts to cause the transfer of the operatorship of the Seller under the CPI Contract vis-à-vis Ecopetrol to Purchaser as soon as reasonably practicable. Under no circumstance, these obligations will apply to the Seller after the date of expiration of the current CPI Contract, that is, June 2024;|
|(v)||Seller shall not exercise any right or privilege under the CPI Contract or the JOA, including any decision, future or pending, related to any Operation or activity pertaining to the Assigned Interest;|
|(vi)||Seller shall have the right to all income and economic benefits arising from the Assigned Interest incurred or caused prior to the Effective Date and Seller shall be responsible for and pay all costs, expenses and liabilities applicable to the corresponding Assigned Interest in accordance with the CPI Contract and the JOA, as applicable, arising or caused prior to the Effective Date.|
|(vii)||The Purchaser shall have the obligation to keep duly and timely informed of any action or decision of the Purchaser in connection with the CPI Agreement, in as long as the Seller maintains any obligation arising under or in connection with the CPI Agreement.|
|(viii)||Purchaser shall indemnify and keep the Seller harmless from and against any and all damages, costs, losses and liabilities (including reasonable attorney’s fees and court agents) deriving from holding the Assigned Interest, as per (i) above, or from any of the circumstances or Seller’s undertakings and/or obligations under this Section 3.3, except where such damages, costs, losses and liabilities are a result of willful misconduct or gross negligence by Seller while holding the Assigned Interest for the benefit of Purchaser in accordance to this section.|
|3.4||Actions on and after Closing Date|
|(a)||On the Closing Date, Seller shall deliver the Employment Assignments. For certainty, all costs incurred in connection with the assignment and/or the termination of any employment contracts:|
|(i)||included in Schedule F shall be assumed by the Purchaser|
|(ii)||not included in Schedule F shall be assumed by the Seller;|
For clarification purposes, the Parties agree that given that the Purchaser shall be responsible for any costs related to or in connection with the assignment or the termination of such employment contracts then in the event that the Employees whose employment contract is included in the Schedule F sue or claim any liability against the Seller, the Purchaser shall, without operating to limit Seller’s Warranties under Section 7.1(13), indemnify and keep the Seller harmless from and against any and all damages, costs, losses and liabilities (including reasonable attorney’s fees and court agents) deriving from the execution of any of the aforementioned disputes.
|(b)||No later than ten (10) Business Days following the Closing Date, the Parties shall perform a handover at which time Seller shall deliver to the Purchaser all documents and records in its possession including all Books and Records and Technical Data, whether in physical or electronic format, except as required to fulfil its obligations hereunder in which case such documents shall be delivered as soon as possible thereafter.|
|(c)||On or as soon as practicable following the Closing Date, the Parties shall perform a handover in the field in order for Purchaser to assume under the Mandate Agreement all of Seller’s operations.|
|(d)||On or in any case no later than ten (10) Business Days following the Closing Date, Seller shall deliver the assignment and novation agreements in respect of any Material Contracts which Purchaser elects that it wishes to be assigned. All costs incurred in connection with the termination of the Material Contracts that Purchaser does not wish to maintain shall be assumed by the Purchaser; and|
|(e)||Within the time periods and in accordance with the process set out in Article 3.4 of the Share Purchase Agreement, the Parties agree to take all actions required to settle any modifications to the Purchase Price that may be required as a result of any adjustments to be made in respect of the Estimated Working Capital for Suroriente Assigned Interest.|
|3.5||Approvals and Waivers|
|(a)||Each Party agrees to act in good will and good faith and to seek, and to do all things reasonably necessary to obtain all approvals, consents and other permissions necessary to achieve the transfer and conveyance of the Assigned Interest as specified in Section 2.1 and the vesting thereof in Purchaser on the Closing Date.|
|(b)||Without prejudice to the generality of Section 3.5(a), following the date hereof:|
|(i)||Purchaser shall forthwith after the Closing Date deliver to Ecopetrol, the Deed of Assignment and Assumption Agreement;|
|(ii)||each Party shall, forthwith upon receiving from Ecopetrol the form of Contract Amendment, sign the said instrument and deliver to Seller for further handling, as specified in Section 3.5(b)(iii);|
|(iii)||Seller shall, forthwith after it receives the Contract Amendment (signed by both Parties) deliver said document to Ecopetrol; and|
|(iv)||Seller shall, forthwith upon receiving the Ecopetrol’s counter-executed copy of the Contract Amendment, provide to Purchaser a copy of the said document.|
|(c)||Subject to any restrictions on disclosure contained in agreements with Third Parties or under Applicable Laws, each of the Parties shall provide such documentation and information in writing which may be formally requested by Ecopetrol in writing in respect of the Transaction.|
|(d)||In the event that Ecopetrol rejects the assignment or requests additional information in order to sign the Contract Amendment, Seller agrees to and shall be obliged at the Purchaser’s sole cost, to submit any and all information and take all legal actions including execution of agreements documents as may be required by Purchaser as many times as it is necessary to sign the Contract Amendment In any case, Seller agrees to hold the Assigned Interest in trust for the exclusive benefit of Purchaser until the Contract Amendment as contemplated herein is signed, provided this takes place on or prior to June 2024.|
CONDITIONS PRECEDENT TO CLOSING
|4.1||Conditions to the Obligations of Purchaser|
The obligation of Purchaser to complete the Transaction is subject to the satisfaction (or waiver by Seller), at or prior to the Closing, of each of the following conditions: :
|(a)||no Applicable Laws make illegal the consummation of the Transaction;|
|(b)||the Regulatory Approval shall have been obtained or shall have been waived in writing by the applicable Governmental Authority, and all conditions in respect thereof imposed by the applicable Governmental Authority that are required to be satisfied prior to Closing shall have been satisfied; and|
|(c)||all Relevant Agreements, except for the Asset Sale Agreement PUT-8, have been executed and closed prior or simultaneously with the Closing of this Agreement.|
|4.2||Conditions to the Obligations of Seller|
The obligation of Seller to complete the Transaction is subject to the satisfaction (or waiver by Purchaser), at or prior to the Closing, of each of the following conditions:
|(a)||no Applicable Laws make illegal the consummation of the Transaction;|
|(b)||the Regulatory Approval shall have been obtained or shall have been waived in writing by the applicable Governmental Authority, and all conditions in respect thereof imposed by the applicable Governmental Authority that are required to be satisfied prior to Closing shall have been satisfied; and|
|(c)||all Relevant Agreements, except for the Asset Sale Agreement PUT-8, have been executed and closed prior or simultaneously with the Closing of this Agreement.|
Each of the Parties shall use commercially reasonable efforts to procure that the Conditions Precedent are satisfied as soon as it is reasonably practicable following the date hereof and in any event no later than the Closing Date.
PURCHASE PRICE AND PAYMENT
The total price payable by the Purchaser for the assignment, conveyance and transfer of the Assigned Interest shall be US$ 46,242,059 (FORTY SIX MILLION TWO HUNDRED AND FORTY TWO THOUSAND AND FIFTY NINE UNITED STATES DOLLARS) (the “Purchase Price”) minus the Estimated Working Capital adjustment as provided for in Sections 3.3 of the Shares Sale Agreement of US$ 4,890,785 (FOUR MILLION EIGHT HUNDRED NINETY THOUSAND SEVEN HUNDRED AND EIGHTY FIVE UNITED STATES DOLLARS) less any withholding taxes required under Colombian Law, according to section 10.1, for a total of US$ 40,317,492 (FORTY MILLION THREE HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED AND NINETY TWO UNITED STATES DOLLARS to be paid to Seller on the Closing Date.
In order to make the payment of the Purchase Price, Seller shall present to Purchaser the corresponding invoice (the “Invoice”) in compliance with the Colombian tax legislation in force, which Purchaser agrees to pay by wire transfer of immediately available funds on the Closing Date after the correct presentation of the Invoice. Seller shall provide a draft Invoice for Purchaser to review no less than three (3) Business Days prior to the applicable Closing Date.
|5.2||Payment of Purchase Price|
The Purchase Price shall be paid by wire transfer on the Closing Date in accordance with the instructions contained in the Invoice.
Each Party shall bear its own costs in connection with the negotiation of this Agreement.
OBLIGATIONS OF THE PARTIES
|(1)||During the Interim Period, Seller shall:|
|(a)||not initiate any funding obligations under the CPI Contract and the JOA and all Material Contracts, including the payment of cash calls;|
|(b)||promptly notify Purchaser and provide details upon the occurrence of:|
|(i)||any written notice of default or termination received by Seller with respect to the CPI Contract or the JOA, or any of the Material Contracts;|
|(ii)||any written notice received by Seller of any pending or threatened Claim related to the CPI Contract or the JOA, or any of the Material Contracts, or in connection with any of the Employees, or under Applicable Laws and in respect of any operations on or pertaining to the Contract Area;|
|(iii)||any material damage, destruction or loss to any Tangible Assets;|
|(iv)||any event or condition that would: (A) render impossible Purchaser’s right to the assignment of the Assigned Interest under this Agreement; and/or (B) have a material adverse effect on the business, operations, financial condition or results of operations under any of the CPI Contract or the JOA or any of the Material Contracts, or in respect of any operations on or pertaining to the Contract Area; or|
|(v)||any resignations, changes of status or other changes initiated by any of the Employees;|
|(c)||regularly consult with Purchaser concerning the conduct of operations on or pertaining to the Contract Area, including the disclosure of specifics pertaining to the planning, conduct and results of operations and data resulting therefrom;|
|(d)||promptly provide Purchaser with any material correspondence received from the Government or a Third Party that: (a) relates to any of the CPI Contract or the JOA, or any of the Material Contracts, or in respect of any operations on or pertaining to the Contract Area; or (b) affects, or could reasonable be anticipated to affect, the Assigned Interest.|
|(e)||upon receipt of reasonable advance notice, permit representatives of Purchaser to have at all reasonable times during normal business hours and at such Party’s own risk and cost reasonable access to the operations on or pertaining to the Contract Area, to observe the operations and inspect the Tangible Assets;|
|(f)||not (by act or omission) breach in any material respect any of the provisions of any of the CPI Contract or the JOA, or any of the Material Contracts, or any of the Employment Contracts, or any Applicable Laws to the extent those relate to the Assigned Interest;|
|(g)||not without Purchaser’s prior written approval, agree to amend or terminate the CPI Contract or the JOA, or any of the Material Contracts, or do or omit to do anything which would amount to a waiver of any material rights or obligations under the CPI Contract or the JOA, or any of the Employment Contracts, or any of the Material Contracts;|
|(h)||not sell, pledge, charge or Encumber any part of the Assigned Interest, nor assign, sell or enter into any agreement to assign or sell any part of the Assigned Interest;|
|(i)||not without Purchaser’s prior written approval, exercise an election, option or any other material right under the CPI Contract or the JOA, or any of the Material Contracts (including approval of any operations or expenditures by the Executive Committee under the JOA);|
|(j)||not without Purchaser’s prior written approval, approve or incur any additional commitment or obligation to the Government in relation to the CPI Contract (including filing any revision or amendment to the work programs and budgets filed with Ecopetrol); provided however, as expressly requested by Purchaser;|
|(k)||ensure that Operations carried out by Seller are performed in the ordinary and usual course of business and in accordance with the terms of the CPI Contract, the JOA, or any of the Material Contracts and Applicable Laws;|
|(l)||be entitled to sell the Hydrocarbons produced from the CPI Contract pursuant to the Hydrocarbon Sales Contracts, and any such other marketing or sales contracts approved by Purchaser, such approval not to be unreasonably withheld, subject to reimbursement to the Purchaser under Section 3.3(a)(i); and|
|(m)||not without Purchaser’s prior written approval, initiate, commence, settle, compromise or waive any Claim relating to any of the CPI Contract, the JOA, or any of the Material Contracts, or to any Employment Contract, or any Operation; and|
|(2)||Following Closing and until such Contract Amendment is executed by Ecopetrol, Seller:|
|(a)||shall comply with subparagraph (1)(b), 1(d), 1(f), 1(g), 1(h), 1(i), 1(j), 1(m); and|
|(b)||Immediately transfer to Purchaser any and all income derived from any sale of Hydrocarbons extracted from the Contract Area that for any reason is accrued and paid to Seller after the Effective Date at no cost for Seller.|
Purchaser shall promptly provide to Seller all such information and documentation concerning Purchaser as may be reasonably requested to enable Seller to prepare and submit all necessary filings in connection with the Ecopetrol Notice and the Regulatory Approvals.
During the Interim Period Purchaser and Seller shall comply with each of the following undertakings:
|(a)||use commercially reasonable efforts to satisfy, in an expeditious manner, the Conditions Precedent.|
|(b)||not take any action nor fail to take any action prior to the Closing Date that would result in a breach of any of its representations and warranties under this Agreement.|
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
|7.1||Seller’s Representations and Warranties|
At the time of this Agreement Seller makes the following representations and warranties to Purchaser, and shall repeat them as of the Effective Date:
|(a)||Seller holds the rights to, and is the legal and beneficial owner of, the applicable Assigned Interest, free and clear of any liens, Claims, burdens or Encumbrances, other than: (i) the liens, Claims, burdens or Encumbrances in favor of the Government according to the terms of the CPI Contract and Applicable Laws, and (ii) the Credit Agreement;|
|(b)||Seller will have the right to transfer and assign full legal and beneficial ownership of the Assigned Interest to Purchaser, free and clear of any Preferential Right, except for what is regulated in the Credit Agreement;|
|(c)||The CPI Contract as described herein include all amendments, extensions, renewals, relinquishments applicable thereto;|
|(d)||The JOA as described herein includes all amendments applicable thereto;|
|(e)||The CPI Contract and the JOA are valid and binding agreements and are in full force and effect and no default, termination event or breach under the CPI Contract or the JOA has occurred, nor has any notice of the foregoing or any notice of withdrawal or revocation been received by Seller nor, to the knowledge of Seller, has any other party to the CPI Contract and/or the JOA received or given such notice;|
|(f)||The CPI Contract together with Applicable Laws, contain the entirety of the obligation of Seller to the Government with respect to the subject matter of the CPI Contract, and no other understanding or agreement exists between Seller and the Government in relation to the subject matter of the CPI Contract except as otherwise disclosed under this Agreement;|
|(g)||To Seller’s Knowledge, the CPI Contract is not currently suspended or in Force Majeure (as that term is defined in the CPI Contract), and , to Seller’s Knowledge, there are no circumstances currently existing which may result in the CPI Contract becoming suspended|
|(h)||Seller is in compliance with all obligations under the CPI Contract and the JOA. No default, termination event or breach under the CPI Contract or the JOA has occurred, nor has any notice of the foregoing or any notice of withdrawal or revocation been received by Seller nor, to the knowledge of Seller, has any other party to the CPI Contract and/or the JOA received or given such notice.|
|(a)||Seller is able to pay its debts as they fall due, is not bankrupt and has not stopped paying its debts as and when they fall due; and|
|(b)||No order has been made and no resolution has been passed for the winding up, dissolution, administration or similar of Seller or for a receiver, administrator, trustee in bankruptcy, liquidator or similar office howsoever called to be appointed in respect of it or any of its assets and no petition has been presented and no meeting has been convened for the purposes of any of the foregoing in relation to Seller.|
|(a)||Seller has provided Purchaser with complete and correct and accurate copies of the CPI Contract and the JOA. Where Seller has provided any translation of a Document, Seller has done so as a courtesy to Purchaser and Seller makes no representation or warranty as to the accuracy of the translation;|
|(4)||Material Contracts and Third-Party Obligations|
|(a)||Other than the JOA, and the Material Contracts, there are no material contracts, agreements, instruments, transactions and undertakings pertaining to the CPI Contract, the Contract Area, the Tangible Assets or any of them nor agreements binding on Seller in respect of the Assigned Interest and currently in effect, with the exception of the Credit Agreement;|
|(b)||To the Seller’s Knowledge, Seller is not in a material default under any of the Material Contracts;|
|(c)||The JOA constitutes a legal and binding obligation of Seller, enforceable in accordance with its respective terms, subject to limitations with respect to enforcement imposed by Applicable Laws in connection with bankruptcy, or similar proceedings and to the extent that equitable remedies such as specific performance and injunction are in the discretion of the courts from which they are sought;|
|(d)||All amounts due and payable to Third Parties prior to the date hereof and pertaining to any of the Assigned Interest have been fully paid, including (1) all rentals and royalties, (2) any and all ad valorem and property taxes, (3) except Ecopetrol Claim any and all production, severance and similar taxes, charges and assessments based upon or measured by the ownership or production of Hydrocarbons or any of them or the receipt of proceeds therefor, (4) any mandatory contributions or deposits, whether in respect of abandonment and reclamation obligations or otherwise, and (5) except Ecopetrol Claim all economic fees under the CPI Contract including subsoil use fees, Ecopetrol production participation, high prices fees and contributions for training, institutional strengthening and technology transfer;|
|(e)||There are no financial commitments of Seller in respect of the Assigned Interest which are due as of the date of this Agreement or which may become due by virtue of matters occurring or arising prior to the date of this Agreement;|
|(f)||Except with respect to the Ecopetrol Claim, Seller is not obligated by virtue of a prepayment, gas balancing, take-or-pay, or other arrangement under any contract to make any production payment, refund of production payment or delivery of Hydrocarbons produced from its interests in the Contract Area to any Third Party at some future time without receiving in due course (and being entitled to retain) full payment therefor at current market prices or contract prices; and|
|(g)||Seller is not aware of any ongoing, planned or threatened activities that would reasonably be anticipated to result in the transportation infrastructure (whether being Joint Property or owned by Third Parties) currently being used to deliver Hydrocarbons produced from the Contract Area to market not having sufficient capacity or ability to accept transmission of the production of Hydrocarbons from the Contract Area.|
|(5)||Claims and Litigation|
|(a)||As of the Execution Date, except for the Ecopetrol Claim and the Ross Energy Claim, there is no civil, criminal or administrative action, suit or proceeding pending or, to the best of Seller’s Knowledge, threatened in writing against the Assigned Interest before any Governmental Authority;|
|(b)||As of the date hereof, there is in connection with the Assigned Interest no material action, suit or proceeding commenced by Seller pending before any Governmental Authority or threatened in writing by Seller against any other Person; and|
|(c)||To the best of Seller’s Knowledge, except as described in Schedule L (Litigation) of the Share Sale Agreement, there is no valid basis for any civil, criminal or administrative action, suit or proceeding involving the Assigned Interest and the Assigned Interests are not subject to any judgment, order or decree entered in any lawsuit or proceeding.|
|(a)||The Disclosed Materials contains particulars of all insurances maintained by or on behalf of the Seller, and all policies in respect of those insurances are currently in force. Seller has maintained valid and adequate insurance cover of a type and affording the same degree of cover as that normally held by companies engaged in businesses of the same or similar type to the Business for the past three years.|
|(b)||Except as set forth in Schedule M of the Share Sale Agreement, there are no outstanding claims under any policies of insurance maintained by or on behalf of the Seller.|
|(c)||To Seller’s Knowledge, the Tangible Assets have been constructed, installed, maintained and operated in accordance with the CPI Contract, the JOA or any other Material Contract; and to Seller’s knowledge, all Tangible Assets are in good and operable condition, reasonable wear and tear excepted in accordance with the Seller’s past practices.|
|(7)||Conduct of Operations|
To Seller’s Knowledge:
|(a)||any and all Operations have been conducted in accordance with the terms of the CPI Contract, the JOA, the Material Contracts, and the practice of similar companies conducting a similar business ;|
|(b)||there have not been communicated to Seller any planned or threatened strikes, other work stoppages or occupations by organized labour or communities living in the Contract Area’s area of direct influence which would reasonably be expected to materially affect Operations, other than those that could arise as a consequence of the execution of this Agreement;|
|(c)||there are no existing or, threatened through a communication to the Seller, disputes or Claims or other grievances with ethnic communities and/or communities living in the Contract Area’s area of direct influence which would reasonably be expected to affect access to the Contract Area for the conduct of Operations as they are currently being conducted or are currently planned to be conducted,;|
|(d)||any and all existing social investment obligations and Environmental handling plans (the “Obligations and Plans”) in place with the communities living in the Contract Area’s area of direct influence for the performance of exploration and/or production activities are not in breach of the Applicable Laws, the terms of the CPI Contract, the applicable Material Contracts, and the terms of such Obligations and Plans; and|
|(e)||any and all legal requirements regarding the verification and certification in relation to ethnic groups or communities, or if applicable as the case may be, all required prior consultations have been made, and the formalities related to them have been conducted in accordance with Applicable Laws and the terms of the CPI Contract.|
|(a)||Except as otherwise disclosed by Seller to Purchaser in the Disclosed Materials, to the best of Seller’s Knowledge:|
|(i)||there has not been and there is not now existing any material non-compliance with Environmental Laws in respect of the construction, ownership or operation of the assets of the Seller or the conduct of any operations thereby. For the purposes of this representation and warranty a “material non compliance” shall be such a non compliance which may result in a material adverse change in or affecting the condition (financial, operational or legal) of the Company with an economical impact equal to or greater than 200,000US$;|
|(ii)||no investigation or complaint by any Governmental Authority with respect to any environmental issues or matters or work place health and safety matters pertaining to or affecting the Seller or their respective assets or operations, is currently outstanding;|
|(iii)||no information request or any other requirement by any Governmental Authority with respect to any environmental issues or matters or work place health and safety matters pertaining to or directly affecting the Seller or its assets or operations, is currently outstanding|
|(iv)||all known spills or similar incidents pertaining to or affecting the areas of the E&P Contract have been reported to the appropriate Governmental Authorities to the extent required by Environmental Laws;|
|(v)||all waste disposal pertaining to or affecting the Seller, or its respective assets or operations, has been and is being conducted in accordance with Environmental Laws ;|
|(vi)||there has been no Release of Hazardous Substances at or from the areas of the E&P Contracts in connection with operations of the Seller that could reasonably be expected to give rise to a material remedial or corrective action obligation under any Environmental Laws; and|
|(vii)||Seller have made available to the Purchaser all material environmental studies, reports, audits, sampling data, site assessments, compliance reviews, correspondence and other similar documents in its possession or control with respect to the E&P Interests.|
|(9)||Compliance with CPI Contract|
To Seller’s Knowledge, Seller is in compliance in all material respects with the CPI Contract, and there are no material Claims (including with respect to Environmental Laws) of which Seller has received notice or, threatened or pending against Seller alleging any failure to so comply.
To the Seller’s Knowledge the Operations are performed under the current licenses, permissions, consents, approvals and agreements (including Environmental permits) (the Permits) have been obtained and complied with and are in full force and effect and Seller has not received any written notice that any such Permits may be revoked, suspended or varied, in whole or in part, and to Seller’s Knowledge there are no circumstances existing which might result in any such Permits being revoked, suspended or varied, in whole or in part.
|(11)||No Broker’s Fees|
Seller has not incurred any obligation or liability, contingent or otherwise, for brokerage fees, finder’s fees, agent’s commission or other similar forms of compensation with respect to the Transaction contemplated hereunder for which Purchaser shall have any obligation or liability whatsoever.
|(12)||Business Ethics and Foreign Investments|
|(a)||Seller is in compliance with Colombian Banco de la República (Central Bank) requirements of any and all required foreign exchange declarations and any updates to the same. Seller has no knowledge of any pending investigations or fines with respect to such foreign investments and foreign exchange.|
|(b)||The operations on the Assigned Interests are and have been conducted at all times in compliance with applicable Colombian Money Laundering Laws and no action, suit or proceeding by or before any court, Governmental Authority or arbitrator with respect to Colombian Money Laundering Laws to which Seller or its business are subject is pending, or, to the best of Seller’s Knowledge, threatened.|
|(c)||Neither Seller nor any of its representatives nor, to the best of Seller’s Knowledge, any person acting in relation to the Assigned Interests: (i) has made, given or promised, either directly or indirectly, any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity; (ii) has made, given or promised, either directly or indirectly, any unlawful payments, gifts or benefits of any kind to any foreign or domestic governmental officials or employees; (iii) has violated or is violating any provision of any Colombian anti-bribery or anti-corruption laws applicable to Seller or its representatives; (iv) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties; or (v) has made, given or promised, either directly or indirectly any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any gift or benefit of any nature to any foreign or domestic governmental officials or employees for any of the following purposes: influencing any act or decision of such public official in his or her official capacity; inducing such public official to do or omit to do any act in violation of the lawful duty of the public official; inducing such public official to use his or her influence with any governmental agency or authority or political party to affect or influence any act or decision of such entity; or securing any improper advantage to either assist a person to obtain business or to further the interests of its business|
|(d)||Seller maintains appropriate internal controls over financial reporting given Colombian Applicable Laws to which it is subject.|
|(e)||Neither Seller nor any of its representatives nor, to the best of Seller’s Knowledge, any person acting in relation to the assets or business of Seller, is aware of or has taken any action, directly or indirectly, including, but not limited to sales, transactions, contracts, loans or investments in, or with, in any currency, any individuals or entities sanctioned as Specially Designated Nationals (“SDNs”) under sanctions administered by the US Office of Foreign Asset Control (“OFAC”).|
|(13)||Employees and Pensions|
|(a)||Schedule F contains:|
|(i)||written service or employment agreement or (as appropriate) any standard form of particulars of employment applicable and issued to each of the Employees; and|
|(ii)||particular of each Employee including but not limited to each Employee’s name, title, age, sex and date of commencement of employment.|
|(b)||Seller has lawfully employed the Employees in accordance with Applicable Laws;|
|(c)||Other than as required by law, there is not in operation any pension or life assurance scheme; and|
|(d)||Seller is not aware of any pending or threatened Claim related to the employment agreements for each of the Employees;|
|7.2||Limitations of Seller’s Representations and Warranties|
Notwithstanding any other additional provision contained in this Agreement, Seller shall have no liability in respect of a Claim to the extent that it occurs or is increased as a result of any of the issues, circumstances or events listed in Clause 2.3 of the Liability Acknowledgement Agreement.
|7.3||Purchaser’s Representations and Warranties|
At the time of this Agreement Purchaser makes the following representations and warranties to Seller, and shall repeat them as of the Effective Date:
|(a)||it has full power to enter into and perform this Agreement and this Agreement constitutes valid and binding obligations on the Purchaser in accordance with its respective terms;|
|(b)||it is entering into this Agreement on its own behalf and not on behalf of any other person;|
|(c)||the execution and delivery of, and the performance by the Purchaser of its obligations under, this Agreement will not:|
|(i)||result in a breach of any provision of its memorandum or articles of association; or|
|(ii)||result in a breach of any order, judgment or decree of any court or governmental agency to which the Purchaser is a party or by which that party is bound;|
|(d)||except for Regulatory Approval, all consents, permissions, approvals and agreements of shareholders of the Purchaser or any other third parties which are necessary or desirable for the Purchaser to obtain in order to enter into and perform this Agreement in accordance with its respective terms have been unconditionally obtained in writing and have been disclosed in writing to Seller;|
|(e)||it has the financial and economic capacity to pay in full the Purchase Price with no need to obtain any external financing of any nature.;|
|(f)||except for the Regulatory Approval, the execution and delivery of this Agreement by Purchaser and the performance and consummation of the Transaction: do not and will not result in the violation of any Applicable Laws or result in a breach of any order, judgment or decree of Governmental Authority to which the Purchaser is a party or by which the Purchaser is bound;|
|(g)||all consents, permissions, approvals and agreements of shareholders of the Purchaser or any other third parties which are necessary or desirable for the Purchaser to obtain in order to enter into and perform this Agreement in accordance with its respective terms have been unconditionally obtained in writing and have been disclosed in writing to the Seller;|
|(h)||the Purchaser will not rescind this Agreement in the event of any breach by the Sellers of any of the Seller’s Warranties (except with respect to a fundamental and material breach of any of Seller’s Warranties regarding title ownership and capacity of the Seller) and any such breaches, if any, of the Seller’s Warranties will be considered as grounds of a Claim.|
|(2)||Financing and Insolvency|
|(a)||Purchaser has sufficient cash, available lines of credit or other sources of immediately available funds to enable it to fulfill all of its obligations under the CPI Contract, the JOA and this Agreement;|
|(b)||Purchaser is able to pay its debts as they fall due, is not bankrupt and has not stopped paying its debts as and when they fall due; and|
|(c)||No order has been made and no resolution has been passed for the winding up, dissolution, administration or similar of Purchaser or for a receiver, administrator, trustee in bankruptcy, liquidator or similar office howsoever called to be appointed in respect of it or any of its assets and no petition has been presented and no meeting has been convened for the purposes of any of the foregoing in relation to Purchaser.|
Purchaser has the technical capability, personnel and resources to fulfill its obligations under this Agreement.
|7.4||Mutual Representations and Warranties|
Each Party makes the following representations and warranties to the other Party as to the Party giving the representation or warranty only, which representations and warranties are made as of the date hereof and shall be repeated as of the Closing Date:
It is duly organized and validly existing under the laws of the country where it is organized and is qualified to conduct business in the jurisdiction as necessary to perform the CPI Contract. It has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the Transaction contemplated hereby. This Agreement has been duly executed and delivered by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
|(2)||Other Representations and Warranties|
The execution, delivery, and performance of this Agreement by each Party, the consummation of the Transaction contemplated hereby, and the compliance with the provisions hereof will not, to the best of each Party’s knowledge and belief:
|(a)||violate any Applicable Laws, judgment, decree or award;|
|(b)||contravene the organization documents of a Party; or|
|(c)||result in a violation of a term or provision, or constitute a default or accelerate the performance of an obligation under any contract or agreement executed by a Party hereto.|
|7.5||Disclaimer of Other Representations and Warranties|
|(a)||Except as and to the extent expressly set forth in this Article 7, Seller expressly disclaims any representation or warranty, express or implied, as to (i) the quantity, quality or recoverability of Hydrocarbons in or from the Contract Area, (ii) the production of Hydrocarbons from the Assets, or whether production has been continuous or in paying quantities, and (iii) the maintenance, repair, condition, quality, suitability, design or marketability of the Assets within the Contract Area; and|
|(b)||except for the representations and warranties provided in this Article 7, Seller and Purchaser make no, and disclaim any, warranty or representation of any kind, either express, implied, statutory, or otherwise, including in relation to the accuracy or completeness of any data, reports, statements, records, projections, information, or materials now, heretofore, or hereafter furnished or made available to Purchaser in connection with this Agreement.|
|7.6||Timing of Representations|
All representations and warranties given under this Article 7 shall, for the contractual term set forth herein, be deemed repeated and valid, true and correct as of the Closing Date, and each Party agrees to inform the other Party of any material changes to the facts in the representations and warranties prior to the Closing Date.
LIABILITIES AND CLAIMS
|8.1||Liability Acknowledgement Agreement|
Provisions related to liability and Claims shall be governed by Article 2 and 3 of the Liability Acknowledgement Agreement.
Settlement of Claims
The mechanism for the settlement of Claims as between the Parties shall be governed by the provisions of Article 3 of the Liability Acknowledgement Agreement.
Each Party shall be responsible for complying with its own tax obligations in accordance to the current tax legislation applicable to this Transaction. Accordingly, Purchaser shall be entitled to withhold from the Purchase Price the Tax which is required to be withheld pursuant to any Applicable Laws, in the amount of US$1,033,782 (ONE MILLION THIRTY THREE THOUSAND SEVEN HUNDRED EIGHTY TWO UNITED STATES DOLLARS), which shall be enumerated in the Invoice.
Each Party shall protect, defend and indemnify each other Party from any and all loss, cost or liability arising from the indemnifying Party’s failure to satisfy such tax obligations. The Parties intend that all income and all tax benefits (including deductions, depreciation, credits and capitalization) with respect to the expenditures made by the Parties hereunder will be allocated by the Government tax authorities to the Parties based on the share of each tax item actually received or borne by each Party. If such allocation is not accomplished due to the application of the Laws or other Government action, the Parties shall attempt to adopt mutually agreeable arrangements that will allow the Parties to achieve the financial results intended.
The Parties shall cooperate fully and in good faith with respect to all Tax matters connected with this Agreement and/or any transactions wherever performed.
If interpretation or enforcement of the CPI Contract by the Government imposes joint and several liability on the Parties for any levy, charge or tax, the Parties agree to cross indemnify each other to the extent that such levy, charge or tax is owed by one Party individually in accordance to the tax legislation in force applicable to this Transaction.
Except as otherwise provided in the CPI Contract and the JOA and subject to Section 11.2, each Party shall treat as strictly confidential:
|(a)||the existence and provisions of this Agreement (including the Purchase Price or the allocation thereof between Seller) and of any document or agreement entered into pursuant to this Agreement;|
|(b)||the negotiations relating to this Agreement; and|
|(c)||all information received or obtained as a result of entering into or performing this Agreement which relates to any of the other parties or the business, financial or other affairs of any of the other parties.|
A Party may disclose information referred to in Section 11.1 (including by way of press or public announcement or the issue of a circular) which would otherwise be confidential if and to the extent that the disclosure is:
|(a)||approved by the other Parties in writing in advance;|
|(b)||required by the law of any relevant jurisdiction or by a court of competent jurisdiction;|
|(c)||lawfully required by any securities or investment exchange or regulatory or governmental body to which a Party is subject;|
|(d)||required to vest in that Party the full benefit of this Agreement;|
|(e)||made to the professional advisers, auditors or bankers of that Party subject to the condition that the Party making the disclosure shall procure that those persons comply with Section 11.1 as if they were Parties to this Agreement;|
|(f)||made to the officers or employees of that Party who need to know the information for the purposes of the transactions effected or contemplated by this Agreement;|
|(g)||of information that has already come into the public domain through no fault of that Party; or|
|(h)||of information which is already lawfully in the possession of that Party as evidenced by its or its professional advisers’ written records and which was not acquired directly or indirectly from the other Party to whom it relates,|
provided that any information disclosed pursuant to paragraphs (b) and (c) shall be disclosed only, after notice to the other Parties (save where such notice is prohibited by law) and the disclosing Party shall consult and co-operate with the other Parties regarding the content, timing and manner of that disclosure and co-operate with any action which any of them may reasonably elect to take to challenge legally the validity of that requirement.
|11.3||Limit in time|
The restrictions contained in this Article 11 shall continue to apply after the rescission or termination of this Agreement for a period of one year.
Except to the extent this Agreement provides otherwise, each Party shall be responsible for all the costs, charges and expenses incurred by it in connection with and incidental to the negotiation, preparation and completion of this Agreement, the other documents referred to in this Agreement and the assignment of the Assigned Interest under this Agreement. For the avoidance of doubt, the Purchaser shall be solely responsible for any and all stamp duty, stamp duty reserve tax and/or other transfer taxes (and any associated interest and penalties) payable by it in respect of the assignment of the Assigned Interest in accordance with all Applicable Laws. All taxes, withholdings and any other charges due as a result of the assignment of the Assigned Interest will be borne by each Party according to Applicable Laws. Seller shall be solely responsible for any charges due to its legal counsel and other advisers in connection with the assignment.
This Agreement (including its exhibits and Schedules) represent the whole and only agreement between the Parties in relation to the assignment of the Assigned Interest and supersede any previous agreement whether written or oral between the Parties in relation to that subject matter. Accordingly, all other terms, conditions, representations, warranties and other statements which would otherwise be implied (by law or otherwise) shall not form part of this Agreement.
Each provision of this Agreement shall continue in full force and effect after Closing, except to the extent that any provision has been fully performed on or before Closing.
If any provision of this Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this Agreement and the remaining provisions will remain in full force and effect.
Amendments and waivers
No amendment or variation of the terms of this Agreement or any document entered into pursuant to this Agreement (including the Schedules) shall be effective unless it is made or confirmed in a written document signed by each Party to the relevant document.
No delay in exercising or non-exercise by a Party of any right, power or remedy under this Agreement or any other document referred to in it shall impair, or otherwise operate as a waiver or release of, that right, power or remedy.
Further assurance and assistance
Each Party shall from time to time at the cost of the requesting Party, do, perform, sign, execute and deliver such reasonable and necessary acts, deeds, documents (or procure the doing, performance, signing, execution or delivery of them) as any other Party shall from time to time reasonably require, in a form and in terms reasonably satisfactory to that other Party to give full effect to this Agreement and to secure to that other the full benefit of the rights, powers and remedies conferred upon it in this Agreement.
|17.1||Any number of counterparts|
This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed an original Agreement for all purposes but all the counterparts shall together constitute one and the same instrument; provided that no Party shall be bound to this Agreement unless and until all Parties have executed a counterpart.
The Parties agree that the exchange by e-mail of scanned copies (in PDF format) of the executed Agreement or its addendum will be enough to comply with this Section.
For purposes of assembling all counterparts into one document, the Parties are authorized to detach the signature page from one or more counterparts and, after signature thereof by the respective Party, attach each signed signature page to a counterpart.
Except as expressly set forth herein, any notice or other communication from one Party to the other, which is required or permitted to be made by the provisions of this Agreement, shall be:
|(a)||hand or sent by overnight courier to the Party concerned at the relevant address shown at the start of this Agreement to the following addresses;|
|Address:||Avenida Calle 82 No. 10-33, Piso 7, Bogotá D.C., Colombia|
|Telephone:||57 1 ###-###-####|
|Fax:||+57 1 ###-###-####|
With a copy to:
Southeast Investment Corporation
|Address:||Calle 113 No. 7 – 80, Torre AR, Piso 17, Bogotá D.C., Colombia|
|Fax:||+57 1 ###-###-####|
|Attention:||Presidencia / Departamento Legal|
With a copy to:
Gran Tierra Energy Inc.
|Address:||900, 520 – 3rd Avenue S.W., Calgary, Alberta, Canada T2P 0R3|
|Attention:||Director, Corporate Legal|
|(b)||e-mail to the Party concerned at the relevant email address shown below .|
|Antonio de la Morena|
|with a copy to|
|18.2||When notices take effect|
Each of the communications referred to in Section 18.1 shall take effect upon confirmed receipt.
If any dispute, claim, question or difference arises out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, other than a matter referred to in Section 19.2 (a “Dispute”), the Parties shall attempt to settle the Dispute by negotiation. If the Dispute has not been resolved, for any reason, within fifteen (15) Business Days following delivery of a notice of Dispute, the Dispute will be resolved by arbitration as provided in Section 19.3.
Additionally, although the arbitrator(s) also have the power to grant injunctive or other equitable relief, nothing in this Section 19.2 prevents a Party from seeking or obtaining an injunction, specific performance or any other equitable remedy from a court of competent jurisdiction.
|(1)||A Party may commence arbitration in respect of a Dispute by delivering to the other Parties (or Party, as applicable) a written notice of arbitration.|
|(2)||Any and all disputes or controversies arising out of or in connection with this Agreement, including the execution, performance or termination of thereof, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”), supplemented by the International Bar Association Rules on the Taking of Evidence in International Arbitration (the “IBA Rules of Evidence”), as amended from time to time, by a three-member arbitral tribunal. Each side shall nominate a co-arbitrator. The co-arbitrators will nominate jointly the President of the Tribunal within thirty (30) days of the confirmation or designation of the second co-arbitrator by the International Chamber of Commerce. The place of arbitration shall be the city of London, England, or such other locations as the Parties may agree. The arbitration shall be conducted in English, or such other language as the Parties may agree. Judgment will be executable in any court having jurisdiction thereof.|
|(3)||The arbitration will be kept confidential and the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions and any awards) will not be disclosed beyond the arbitrator, the Parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise or as may be required by Applicable Law.|
This Agreement shall be governed by and interpreted in accordance with the laws of the Kingdom of Spain, without regard for any conflict of laws or choice of laws principles that would require the application of the laws of any other jurisdiction, provided that the transfer of Assigned Interest shall at all times be performed in compliance with the laws of Colombia.
INDEPENDENT LEGAL ADVICE
Each Party hereby represents and warrants to the others that it had the opportunity to seek and was not prevented or discouraged by any of the other Parties from seeking independent legal advice prior to the execution and delivery of this Agreement and that, in the event that he or it did not available himself of that opportunity prior to signing this Agreement he or it did so voluntarily without any undue pressure and agrees that its failure to obtain independent legal advice shall not be used by it as a defence to the enforcement of its obligations under this Agreement or as a basis for the exertion of any rights under this Agreement.
|22.1||With effect from the Closing Date, Inversiones Frieira, S.L. and Vetra Energy Group LLC (jointly referred as the “Parent Companies”) shall fully undertake any whatsoever payment obligation of either the Seller hereunder and under the Liability Ackowledgement Agreement. Therefore from Closing Date, the Parent Companies will be liable individually and severally (“mancomunadamente”) between both –(74.5% in the case of Inversiones Frieira, S.L. and 25.5% in the case of Vetra Energy Group LLC) of the potential payment obligations, including all the Seller’s obligations to indemnify any Losses suffered by the Purchaser as a result of any breach of the Sellers’ Warranties set forth in Article 7 (the “Assignment of Obligations”).|
|22.2||Likewise, the Seller, by mean of this Agreement assigns to Parent Companies, individually and severally (“mancomunadamente”) in the proportion of their stake in the share capital of Seller all the rights hereunder (the “Assignment of Rights”).|
|22.3||As a result of the Assignment of Obligations, the Purchaser expressly agree to release the Seller from any such payment obligations under this Agreement and under the Liability Acknowledgement Agreement. As previously set forth, each of the Parent Companies shall be liable vis-à-vis the Purchaser individually and severally (“mancomunadamente”), in the proportion 74.5%/25.5% of any and all payment obligations arising from the Seller’s obligations under this Agreement and under the Liability Acknowledgement Agreement.|
|22.4||The Purchaser expressly accepts the terms and conditions of the Assignment of Obligations and the Assignment of Rights and, therefore, acknowledges that on the Closing Date, once the Assignment of Obligations and the Assignment of Rights are effective, Seller will be automatically released against the Purchaser from any and all Losses. The Purchaser irrevocably waives any and all judicial or extra-judicial claims to be brought after the Closing Date against the Seller related to this Agreement and under the Liability Acknowledgement Agreement.|
Each of the Parties shall do all such acts and execute and deliver all such documents as shall be reasonably required in order to fully perform and carry out the terms of this Agreement.
No waiver by any Party of any one or more defaults by another Party in the performance of any provision of this Agreement shall operate or be construed as a waiver of any future default or defaults by the same Party whether of a like or of a different character. No failure to exercise nor any delay in exercising any right, power or remedy under this Agreement or law shall operate as a waiver, and no single or partial exercise of any right or remedy shall prevent any further or other exercise or exercise of any other right or remedy. Except as expressly provided in this Agreement, no Party shall be deemed to have waived, released or modified any of its right under this Agreement unless such Party has expressly stated, in writing, that it does waive, release or modify such right.
Each provision of this Agreement shall be construed as though all Parties participated equally in the drafting of the same. Consequently, the Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
|23.4||Severance of Invalid Provisions|
If and for so long as any provision of this Agreement shall be deemed to be judged invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other provision of this Agreement except only so far as shall be necessary to give effect to the construction of such invalidity, and any such invalid provision shall be deemed severed from this Agreement without affecting the validity of the balance of this Agreement.
For the avoidance of doubt, if and for so long as any provision of this Agreement shall be deemed to be judged invalid for any reason whatsoever, Purchaser and Seller shall negotiate in good faith, and use reasonable endeavors, to agree an alternative valid provision which, as far as possible, reflects the commercial terms and/or effect of the provision judged invalid.
There shall be no modification or amendment of this Agreement except by written consent of all Parties.
|23.6||Priority of Agreement|
In the event of any conflict between the provisions of the main body of this Agreement and its Schedules, the provisions of the main body of the Agreement shall prevail. In the event of any conflict between this Agreement and the CPI Contract, then as between the Parties this Agreement shall prevail.
Notwithstanding anything to the contrary contained in the Non-Disclosure Agreement between Gran Tierra Energy Inc. and Vetra Energía, S.L. dated December 14, 2018 or this Agreement, the Parties acknowledge and agree that the Purchaser will be entitled to publicly announce the execution of this Agreement and the Closing of the Transaction via press release, and, to the extent required under the rules and regulations of the U.S. Securities Exchange Act of 1934, as amended, to file this Agreement and any financial statements required by Rule 3-05 of Regulation S-X with the SEC. Purchaser will provide a draft copy of any such press release to Sellers, and will make such changes which the Sellers will reasonably request.
With respect to the subject matter contained herein, this Agreement (i) is the entire agreement of the Parties; and (ii) supersedes all prior understandings and negotiations of the Parties.
Notwithstanding any principle of law to the contrary, no covenant, representation, warranty, or indemnity contained herein shall be merged by reason of the effecting of the assignment of the Assigned Interest, whether by execution of the Deed of Assignment and Assumption Agreement, the Contract Amendment or otherwise.
The rights, duties, obligations, and liabilities of the Parties under this Agreement shall be individual, not joint or collective. It is not the intention of the Parties to create, nor shall this Agreement be deemed or construed to create, a mining or other partnership, joint venture or association or (except as explicitly provided in this Agreement) a trust. This Agreement shall not be deemed or construed to authorize any Party to act as an agent, servant or employee for any other Party for any purpose whatsoever except as explicitly set forth in this Agreement. In their relations with each other under this Agreement, the Parties shall not be considered fiduciaries except as expressly provided in this Agreement.
[The remainder of this page is intentionally left blank. The counterpart execution pages of the Parties follow.]
IN WITNESS of their agreement each Party has caused its duly authorized representative to sign this instrument on the date set out in the first sentence of this Agreement
|VETRA EXPLORACIÓN y PRODUCCIÓN COLOMBIA S.A.S.|
|Per:||/s/ Antonio De La Morena|
|Name: Antonio De La Morena|
|Per:||/s/ Nelson Navarrete|
|Name: Nelson Navarrete|
|SOUTHEAST INVESTMENT CORPORATION|
|Per:||/s/ Manuel Buitrago|
|Name: Manuel Buitrago|
|Per:||/s/ Javier Casais|
|Name: Javier Casais|
|INVERSIONES FRIEIRA, S.L.|
|Per:||/s/ Manuel Jove|
|Name: Manuel Jove|
|VETRA ENERGY GROUP LLC|
|Per:||/s/ Domingo Torres|
|Name: Domingo Torres|