PARTNERSHIP PLEDGE AGREEMENT
EXECUTION
VERSION
This
PARTNERSHIP PLEDGE AGREEMENT, dated as of January 1, 2009 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
“Agreement”),
is made by GTE COLOMBIA HOLDINGS LLC, a limited liability company organized
under the laws of the State of Delaware (Registered No. 4635693) (the “LLC”), and ARGOSY
ENERGY, LLC, a limited liability company organized under the laws of the State
of Delaware (f/k/a Argosy Energy Corp., a Delaware corporation) (Registered No.
3234977) (the “Guarantor”), and each
other Person that may from time to time hereafter become a party hereto pursuant
to Section 10(k) (the LLC, the Guarantor and each such other person
individually, a “Pledgor” and,
collectively, the “Pledgors”), in favor
of STANDARD BANK PLC, in its capacity as administrative agent under the Credit
Agreement (as hereinafter defined) acting for and on behalf of the Secured
Parties (in such capacity, the “Pledgee”).
WITNESSETH:
WHEREAS,
each Pledgor is now the direct and beneficial owner of the issued and
outstanding partnership interests of GRAN TIERRA ENERGY COLOMBIA, LTD. (formerly
Argosy Energy International), a limited partnership organized under the laws of
the State of Utah (Registered No. 2110646-0180) (the “Issuer”), and in such
percentages, listed in Exhibit A hereto and made a part hereof;
WHEREAS,
pursuant to that certain Credit Agreement, dated as of February 22,
2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”),
among Gran Tierra Energy Inc. (the “Borrower”), the
Guarantor, the Issuer, the banks from time to time party thereto (the “Banks”) and the
Pledgee, the Pledgee and the Banks have entered into financing arrangements
pursuant to which the Banks may make loans and provide other financial
accommodations to the Borrower;
WHEREAS,
in order to induce the Banks to make loans and provide other financial
accommodations pursuant to the Credit Agreement, and to induce the Designated
Hedge Counterparty to enter into the Designated Hedging Agreement and for other
good and valuable consideration (the sufficiency of which each Pledgor hereby
acknowledges), each Pledgor has agreed to secure the prompt payment in full when
due of the Obligations by executing and delivering to the Pledgee this
Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Pledgor hereby agrees as follows:
1. DEFINITIONS; RULES OF
INTERPRETATION
(a) Definition of Terms Used
Herein. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Credit Agreement. In
addition:
(i) “Issuer” has the
meaning set forth in the recitals hereto.
(ii) “Obligations” means
all amounts from time to time owing to the Secured Parties by the Obligors under
the Credit Agreement, including Section 6 thereof, this Agreement and any of the
other Loan Documents to which any Obligor is a party, in each case strictly in
accordance with the terms hereof and thereof.
(iii) “Partnership
Agreement” means that certain Fourth Amended and Restated Limited
Partnership Agreement of the Issuer, dated January 1, 2009, as amended,
supplemented, amended and restated or otherwise modified from time to
time.
(iv) “Pledged Interests”
means all of the partnership interests in the Issuer indicated in Exhibit A
hereto.
(v) “Pledged Property” has
the meaning set forth in Section 2(a) hereto.
(vi) “UCC” means the
Uniform Commercial Code as from time to time in effect in the State of New
York.
2. GRANT OF SECURITY
INTEREST
(a) As
collateral security for the prompt performance, observance and indefeasible
payment in full of all of the Obligations, each Pledgor hereby assigns and
pledges to the Pledgee, and grants to the Pledgee for itself and the benefit of
the Secured Parties, a security interest in and Lien upon the following
(collectively, the “Pledged
Property”):
(i) its
Pledged Interests and all certificates (if any) at any time representing or
evidencing such Pledged Interests;
(ii) all
of its present and future right to receive payment of money or other
distributions arising out of or in connection with the Pledged
Interests;
(iii) all
of its right, title and interest in, to and under the Partnership Agreement,
including, without limitation, all of its right, title and interest as a partner
to participate in the operation or management of the Issuer;
(iv)
all proceeds of and to any of the property of such Pledgor described above,
including, without limitation, all causes of action, claims and warranties now
or hereafter held by such Pledgor in respect of any of the items listed above;
and
(v) such
Pledgor’s books and records with respect to any of the foregoing.
(b) This
Agreement is executed only as security for the Obligations and, therefore, the
execution and delivery of this Agreement shall not subject the Pledgee or any
Secured Party to, or transfer or pass to the Pledgee or any Secured Party, or in
any way affect or modify, the duties, obligations and liabilities of the
Pledgors under the Partnership Agreement or any related agreement, document or
instrument or otherwise. In no event shall the acceptance of this
Agreement by the Pledgee or the Secured Parties or the exercise by the Pledgee
or any Secured Party of any rights hereunder or assigned hereby, constitute an
assumption of any duty, liability or obligation of any Pledgor to, under or in
connection with the Partnership Agreement or any related agreements, documents
or instruments or otherwise.
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3. OBLIGATIONS
SECURED
The Lien
and other interests granted to the Pledgee for itself and the benefit of the
Secured Parties, pursuant to this Agreement shall secure the prompt performance
and payment in full of any and all of the Obligations.
4. REPRESENTATIONS, WARRANTIES
AND COVENANTS
Each
Pledgor hereby represents, warrants and covenants with and to the Pledgee and
the Secured Parties the following as of the date hereof (all of such
representations, warranties and covenants being continuing so long as any of the
Obligations are outstanding):
(a) The
Pledged Interests are duly authorized and validly existing and constitute such
Pledgor’s entire interest in the Issuer as of the date hereof and such Pledgor
is the registered owner of such Pledged Interests.
(b) The
Pledgors are the holders of one hundred (100%) percent of the ownership
interests in, and are the only partners of, the Issuer.
(c) The
Pledged Property pledged by such Pledgor hereunder is directly, legally and
beneficially owned by such Pledgor free and clear of all claims and Liens of any
kind, nature or description, other than those created pursuant to this Agreement
in favor of the Pledgee (for itself and for the benefit of the Secured Parties)
and other than Permitted Liens.
(d) The
Pledged Property pledged by such Pledgor hereunder is not subject to any
restriction relative to the transfer thereof (other than applicable law) and the
Pledgor has the right to transfer the Pledged Property free and clear of any
Lien other than Permitted Liens.
(e) The
Pledged Property pledged by such Pledgor hereunder is duly and validly pledged
to the Pledgee, no consent or approval of any governmental or regulatory
authority or of any securities exchange or the like, nor any consent or approval
of any other third party, was or is necessary to the validity and enforceability
of this Agreement, except as expressly set forth herein (other than applicable
securities laws which will apply in connection with an exercise of remedies
hereunder).
(f) If
such Pledgor shall become entitled to receive or acquire, or shall receive any
partnership interest certificate, or option or right with respect to the Pledged
Interests (including without limitation, any certificate representing a
distribution or exchange of or in connection with reclassification of the
Pledged Interests) whether as an addition to, in substitution of, or in exchange
for any of the Pledged Property or otherwise, such Pledgor agrees to accept the
same as the Pledgee’s agent, to hold the same in trust for the Pledgee and to
deliver the same forthwith to the Pledgee or the Pledgee’s agent or bailee in
the form received, with the endorsement(s) of such Pledgor where necessary
and/or appropriate powers and/or assignments duly executed to be held by the
Pledgee or the Pledgee’s agent or bailee subject to the terms hereof, as further
security for the Obligations.
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(g) The
Pledged Interests pledged by such Pledgor hereunder are not and shall not at any
time hereafter be investment property or otherwise subject to Article 8 of the
UCC except as the Pledgee may otherwise expressly agree in
writing. As of the date hereof, there are no certificates or other
written instruments evidencing or representing the Pledged
Interests.
(h) Such
Pledgor shall keep full and accurate books and records relating to the Pledged
Property pledged by such Pledgor hereunder and stamp or otherwise 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.
(i) Such
Pledgor shall not, without the prior consent of the Pledgee, directly or
indirectly, sell, assign, transfer, or otherwise dispose of, or grant any option
with respect to the Pledged Property, nor shall such Pledgor create, incur or
permit any further Lien with respect to the Pledged Property other than as
permitted in the Credit Agreement.
(j) So
long as no Event of Default has occurred and is continuing, each Pledgor shall
have the right to exercise all partnership rights with respect to the Pledged
Property, except as expressly prohibited herein or in the other Loan Documents,
and to receive any distributions payable in respect of the Pledged Property (but
subject to terms of the Credit Agreement with respect thereto).
(k) Such
Pledgor has delivered to the Pledgee a true, correct and complete copy of the
Partnership Agreement.
(l) Other
than as permitted in the Credit Agreement, the Pledgors shall not permit the
Issuer, directly or indirectly, to (i) issue, sell, grant, assign, transfer
or otherwise dispose of, any additional partnership interests of the Issuer or
any option or warrant with respect to, or other right or security convertible
into, any additional partnership interests, now or hereafter authorized, unless
all such additional partnership interests, options, warrants, rights or other
such securities are made and shall remain part of the Pledged Property subject
to the pledge and security interest granted herein, (ii) take any action to
withdraw the authority of or to limit or restrict the authority of the Issuer’s
general partner to deal and contract with the Pledgee and to bind and obligate
the Issuer, or (iii) pay any interim distribution in cash or other assets
to any member or partner, except as permitted in the Credit
Agreement.
(m) Such
Pledgor shall promptly notify the Pledgee in writing of the occurrence of any
event specified in the Partnership Agreement or the certificate of formation of
the Issuer that could reasonably be expected to result in the Issuer’s
dissolution or liquidation.
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(n) Such
Pledgor shall not, and shall not permit the Issuer, directly or indirectly, to,
amend, modify or supplement any of the provisions of the Partnership Agreement
or the certificate of formation of the Issuer without the prior written consent
of the Pledgee if any such amendment, modification or supplement could
reasonably be expected to affect any rights of the Pledgee or any Secured Party
hereunder or under any of the other Loan Documents.
(o) In
accordance with the Partnership Agreement, each Pledgor hereby acknowledges and
agrees that the Pledgee or any of its successors and assigns (or any designee of
the Pledgee), shall, at the Pledgee’s option upon written notice to such Pledgor
of the Pledgee’s intent to be admitted itself (or to have any such successor,
assignee or designee admitted) as a partner of the Issuer at any time an Event
of Default exists or has occurred and is continuing, be admitted as a partner of
the Issuer without any further approval of the Pledgors and without compliance
by the Pledgee or any other person with any of the conditions or other
requirements of the Partnership Agreement and without conferring upon any
partner thereof any option (whether under the Partnership Agreement or
otherwise) to acquire the partnership interests so transferred to the Pledgee,
its successors or assigns, or its designees. Each Pledgor agrees to
take such other action and execute such further documents as the Pledgee may
reasonably request from time to time in order to give effect to the foregoing
provisions of this section.
(p) Such
Pledgor shall furnish, or cause to be furnished, to the Pledgee such information
concerning the Issuer and the Pledged Property as the Pledgee may from time to
time reasonably request.
(q) [Intentionally
Omitted]
(r) Such
Pledgor shall not change its name or its jurisdiction of organization from that
existing as of the date of this Agreement, except upon 15 Business Days’ prior
written notice to the Pledgee and delivery to the Pledgee of copies of all filed
additional financing statements, and other documents (in each case, properly
executed) reasonably requested by the Pledgee to maintain the validity,
perfection and priority of the security interests provided for
herein.
(s) Such
Pledgor waives to the extent permissible by applicable law, its rights under
Section 9-207 of the UCC. Each Pledgor agrees that the Pledged
Property, other collateral, or any other guarantor or endorser may be released,
substituted or added with respect to the Obligations, in whole or in part,
without releasing or otherwise affecting the liability of such Pledgor, the
pledge and security interests granted hereunder, or this
Agreement. The Pledgee, for and on behalf of itself and the Secured
Parties, is entitled to all of the benefits of a secured party set forth in
Section 9-207 of the UCC.
5. [Intentionally
Omitted]
6. NO ASSUMPTION OF
LIABILITIES
(a) Nothing
herein shall be construed to make the Pledgee or any Secured Party liable as a
partner of the Issuer and the Pledgee or any Secured Party by virtue of this
Agreement or otherwise shall not have any of the duties, obligations or
liabilities of a partner of the Issuer. The parties hereto expressly
agree that this Agreement shall not be construed as creating a partnership or
joint venture among the Pledgee or any Secured Party and any Pledgor and/or the
Issuer.
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(b) By
accepting this Agreement, the Pledgee and the Secured Parties do not intend to
become a partner of the Issuer or otherwise be deemed to be a partner or
co-venturer with respect to any Pledgor or the Issuer either before or after an
Event of Default shall have occurred. The Pledgee and the Secured
Parties shall have only those powers set forth herein and shall assume none of
the duties, obligations or liabilities of any Pledgor or of a partner of the
Issuer. Neither the Pledgee nor any Secured Party shall be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(c) The
acceptance by the Pledgee and the Secured Parties of this Agreement, with all of
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any Secured Party to appear in or defend
any action or proceeding relating to the Pledged Property to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expense or perform or discharge any obligation, duty or liability
hereunder or otherwise with respect to the Pledged Property.
7. RIGHTS AND
REMEDIES
At any
time after an Event of Default exists or has occurred and is continuing, in
addition to all other rights and remedies of the Pledgee and the Secured
Parties, whether provided under this Agreement, the Credit Agreement, the other
Loan Documents, applicable law or otherwise, the Pledgee shall have the
following rights and remedies which may be exercised without notice to, or
consent by, any Pledgor except as such notice or consent is expressly provided
for hereunder or such notices which such Pledgor may not waive in accordance
with applicable law:
(a) The
Pledgee, at its option, shall be empowered to exercise its continuing right to
instruct the Issuer in writing (or the appropriate transfer agent of the Pledged
Interests) to register any or all of the Pledged Interests in the name of the
Pledgee or in the name of the Pledgee’s nominee (including, without limitation,
any Secured Party) and the Pledgee may complete, in any manner the Pledgee may
deem expedient, any assignments or other documents heretofore or hereafter
executed in blank by the Secured Parties and delivered to the
Pledgee. After said written instruction, and without further notice,
the Pledgee shall have the exclusive right to exercise all voting and
partnership rights with respect to the Pledged Property, and exercise any and
all rights of conversion, redemption, exchange, subscription or any other
rights, privileges, or options pertaining to the Pledged Property as if the
Pledgee were the absolute owner thereof, including, without limitation, the
right to exchange, in its discretion, any and all of the Pledged Property upon
any merger, consolidation, reorganization, recapitalization or other
readjustment with respect thereto. Upon the exercise of any such
rights, privileges or options by the Pledgee, the Pledgee shall have the right
to deposit and deliver any and all of the Pledged Property to any committee,
depository, transfer agent, registrar or other designated agency upon such terms
and conditions as the Pledgee may determine, all without liability, except to
account for property actually received by the Pledgee. However, the
Pledgee shall have no duty to exercise any of the aforesaid rights, privileges
or options (all of which are exercisable in the sole discretion of the Pledgee)
and shall not be responsible for any failure to do so or delay in doing
so.
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(b) The
Pledgee may, in its good faith discretion (i) collect, foreclose, receive,
appropriate, setoff and realize upon any and all Pledged Property,
(ii) sell, lease, transfer, assign, deliver or otherwise dispose of any and
all Pledged Property (including entering into contracts with respect thereto,
public or private sales at any exchange, broker’s board, at any office of the
Pledgee or elsewhere) at such prices or terms as the Pledgee may deem
reasonable, for cash, upon credit or for future delivery, with the Pledgee
having the right to purchase the whole or any part of the Pledged Property at
any such public sale, all of the foregoing being free from any right or equity
of redemption of any Pledgor, which right or equity of redemption is hereby
expressly waived and released by each Pledgor (to the extent permitted by
applicable law). If notice of disposition of Pledged Property is
required by law, ten (10) days prior notice by the Pledgee to any Pledgor
designating the time and place of any public sale or the time after which any
private sale or other intended disposition of Pledged Property is to be made,
shall be deemed to be reasonable notice thereof and any other
notice. The Pledgee shall apply the cash proceeds of Pledged Property
actually received by the Pledgee from any sale, lease, foreclosure or other
disposition of the Pledged Property to payment of the Obligations then due, in
whole or in part and in accordance with the terms of Section 10 of the Credit
Agreement, and thereafter may hold such proceeds as cash collateral for the
Obligations not then due. Each Pledgor shall remain liable to the
Pledgee and the Secured Parties for the payment of any deficiency with interest
at the highest rate provided for in the Credit Agreement and agrees to indemnify
the Pledgee and the Secured Parties from all costs and expenses of collection or
enforcement incurred in good faith by each of them or on their behalf, including
reasonable attorneys’ fees and expenses, as provided in the Credit
Agreement.
(c) Each
Pledgor recognizes that the Pledgee may be unable to effect a public sale of all
or part of the Pledged Property by reason of certain prohibitions contained in
the Securities Act of 1933, as amended, as now or hereafter in effect or in
applicable Blue Sky or other state securities law, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Pledged Property for their own account for investment and not
with a view to the distribution or resale thereof. If at the time of
any sale of the Pledged Property or any part thereof, the same shall not, for
any reason whatsoever, be effectively registered under the Securities Act of
1933 (or other applicable state securities law), as then in effect, the Pledgee
in its sole and absolute discretion is authorized to sell such Pledged Property
or such part thereof by private sale in such manner and under such circumstances
as the Pledgee or its counsel may deem necessary or advisable in order that such
sale may legally be effected without registration. Each Pledgor
agrees that private sales so made may be at prices and other terms less
favorable to the seller than if such Pledged Property were sold at public sale,
and that the Pledgee has no obligation to delay the sale of any such Pledged
Property for the period of time necessary to permit the Issuer, even if the
Issuer would agree, to register such Pledged Property for public sale under such
applicable securities laws. Each Pledgor agrees that any private
sales made under the foregoing circumstances shall be deemed to have been made
in a commercially reasonable manner.
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(d) All
of the rights and remedies of the Pledgee and the Secured Parties, including,
but not limited to, the foregoing and those otherwise arising under this
Agreement, the Credit Agreement and the other Loan Documents, the instruments
comprising the Pledged Property, applicable law or otherwise, shall be
cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as the Pledgee may deem expedient. No
failure or delay on the part of the Pledgee or any Secured Party in exercising
any of its options, powers or rights or partial or single exercise thereof,
shall constitute a waiver of such option, power or right.
8. JURY TRIAL WAIVER; OTHER
WAIVERS AND CONSENTS; GOVERNING LAW
(a) The
validity, interpretation and enforcement of this Agreement and any dispute
arising out of the relationship between any Pledgor and the Pledgee or any
Secured Party, whether in contract, tort, equity or otherwise, shall be governed
by the laws of the State of New York, including, without limitation, Section
5-1401 of the New York General Obligations Law.
(b) Each
Pledgor hereby irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, sitting in the
Borough of Manhattan, The City of New York and the United States District Court
for the Southern District of New York, whichever the Pledgee may elect, and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Agreement or any of the other Loan
Documents or in any way connected with or related or incidental to the dealings
of any Pledgor and the Pledgee or any Secured Party in respect of this Agreement
or any of the other Loan Documents or the transactions related hereto or
thereto, in each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agrees that any dispute with respect to
any such matters shall be heard only in the courts described above (except that
the Pledgee and the Secured Parties shall have the right to bring any action or
proceeding against any Pledgor or its property in the courts of any other
jurisdiction that the Pledgee deems necessary or appropriate in order to realize
on any collateral at any time granted by the Borrower or any Pledgor to the
Pledgee or any Secured Party or to otherwise enforce its rights against any
Pledgor or its property).
(c) Each
Pledgor hereby irrevocably designates, appoints and empowers CT Corporation as
its designee, appointee and agent to receive, accept and acknowledge for and on
its behalf, and in respect of its property, service of any and all legal process
which may be served in any action or proceeding. If for any reason CT
Corporation shall cease to be available to act as such, each Pledgor agrees to
designate a new designee, appointee and agent on the terms and for the purposes
of this provision satisfactory to the Pledgee. Each Pledgor hereby
irrevocably consents to the service of process out of any of the courts
mentioned in Section 8(b) above in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid to such
Pledgor at its respective address set forth on the signature pages
hereof.
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(d) EACH
PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR THERETO IN RESPECT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. EACH PLEDGOR HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PLEDGOR, ANY SECURED PARTY OR THE PLEDGEE MAY FILE
AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF PLEDGORS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e) Neither
the Pledgee nor any Secured Party shall have any liability to any Pledgor
(whether in tort, contract, equity or otherwise) for losses suffered by such
Pledgor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Agreement, or any act,
omission or event occurring in connection herewith, unless with respect to the
Pledgee or any Secured Party, as applicable, it is determined by a final and
non-appealable judgment or court order binding on the Pledgee or such Secured
Party, as applicable, that the losses were the result of acts or omissions
constituting gross negligence or willful misconduct or bad faith of the Pledgee
or the relevant Secured Party, as applicable. In any such litigation,
the Pledgee and the Secured Parties shall be entitled to the benefit of the
rebuttable presumption that they acted in good faith and with the exercise of
ordinary care in the performance by them of the terms of the Credit Agreement
and the other Loan Documents. Each Pledgor: (i) certifies that
neither the Pledgee nor any Secured Party nor any representative, agent or
attorney acting for or on behalf of the Pledgee or any Secured Party has
represented, expressly or otherwise, that the Pledgee and the Secured Parties
would not, in the event of litigation, seek to enforce any of the waivers or
other agreements for their benefit provided for in this Agreement or any of the
other Loan Documents and (ii) acknowledges that in entering into this Agreement
and the other Loan Documents, the Pledgee and the Secured Parties are relying
upon, among other things, the waivers and certifications set forth in this
Section 8(e) and elsewhere herein and therein.
9. RELEASE OF
COLLATERAL
(a) Upon
termination of the Commitments and payment and satisfaction in full (in cash or
other immediately available funds) of all Loans and all other Obligations and,
in respect of contingent Letter of Credit Liabilities, after cash collateral has
been deposited with respect thereto or after such Letter of Credit Liabilities
have been fully guaranteed by Export Development Canada (EDC) on terms in form
and substance acceptable to the Majority Banks in accordance with the terms and
conditions of the Credit Agreement, the Pledged Property shall be released from
the Lien created hereby and this Agreement and all obligations of the Pledgee
and the Pledgors hereunder shall terminate, all without delivery of any
instrument or performance of any act by any Person, and all rights to the
Pledged Property shall revert to the Pledgors. At the request of the
Pledgors following any such termination, the Pledgee shall deliver to Pledgors
any Pledged Property held by the Pledgee hereunder and execute and deliver to
Pledgors such documents as Pledgors shall reasonably request to evidence such
termination.
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(b) If
the Pledgee, pursuant to the terms of the Credit Agreement or any other Loan
Documents, shall release any Lien upon any Pledged Property, such Pledged
Property shall be released from the Lien created hereby to the extent provided
under, and subject to the terms and conditions set forth in the Credit Agreement
or such other Loan Document. In connection therewith, the Pledgee, at
the request and of Pledgors, shall execute and deliver to Pledgors all releases
or other documents, including, without limitation, UCC amendment or termination
statements, reasonably necessary or desirable for the release of the Lien
created hereby on such Pledged Property.
10. MISCELLANEOUS
(a) Each
Pledgor authorizes the Pledgee to file or record UCC financing statements with
respect to the Pledged Property of such Pledgor with or without the signature of
such Pledgor, in such form and in such offices as the Pledgee reasonably
determines appropriate to perfect the security interests of the Pledgee under
this Agreement; provided that nothing
herein shall relieve such Pledgor from its obligation to file or record any UCC
financing or continuation statement with respect to its Pledged
Property.
(b) Each
Pledgor agrees that at any time and from time to time upon the written request
of the Pledgee, such Pledgor shall execute and deliver such further documents,
in form satisfactory to the Pledgee’s counsel, and will take or cause to be
taken such further acts as the Pledgee may request in order to effect the
purposes of this Agreement and perfect or continue the perfection of the
security interest in the Pledged Property granted to the Pledgee
hereunder.
(c) Beyond
the exercise of reasonable care to assure the safe custody of the Pledged
Property (whether such custody is exercised by the Pledgee, or the Pledgee’s
nominee, agent or bailee) the Pledgee or the Pledgee’s nominee agent or bailee
shall have no duty or liability to protect or preserve any rights pertaining
thereto and shall be relieved of all responsibility for the Pledged Property
upon surrendering it to Pledgors or foreclosure with respect
thereto.
(d) All
notices, requests and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by fax or other writing and faxed, mailed or
delivered to the intended recipient at the “Address for Notices” specified below
its name on the signature pages hereof.
(e) All
references to the plural herein shall also mean the singular and to the singular
shall also mean the plural. All references to any Pledgor, the
Pledgee, any Secured Party and the Issuer pursuant to the definitions set forth
in the recitals hereto, or to any other person herein, shall include their
respective successors and assigns. The words “hereof,” “herein,”
“hereunder,” “this Agreement” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced.
-10-
(f) This
Agreement shall be binding upon each Pledgor and its respective successors and
assigns and shall inure to the benefit of and be enforceable by the Pledgee and
the Secured Parties and their respective successors, endorsees, transferees and
assigns, except that no Pledgor may assign its rights under this Agreement
without the prior written consent of the Pledgee and the Secured
Parties. Any such purported assignment without such express prior
written consent shall be void. The liquidation, dissolution or
termination of any Pledgor shall not terminate this Pledge as to such entity or
as to any of the other Pledgors. The terms and provisions of this Agreement are
for the purpose of defining the relative rights and obligations of the Borrower,
the Pledgors, the Pledgee and the Secured Parties with respect to the
transactions contemplated hereby and there shall be no third party beneficiaries
of any of the terms and provisions of this Agreement.
(g) If
any provision of this Agreement is held to be invalid or unenforceable, such
invalidity or unenforceability shall not invalidate this Agreement as a whole,
but this Agreement shall be construed as though it did not contain the
particular provision held to be invalid or unenforceable and the rights and
obligations of the parties shall be construed and enforced only to such extent
as shall be permitted by applicable law.
(h) This
Agreement, any supplements hereto, and any instruments or documents delivered or
to be delivered in connection herewith, represents the entire agreement and
understanding of the parties hereto concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, commitments, proposals, offers and contracts concerning the subject
matter hereof, whether oral or written. In the event of any
inconsistency between the terms of this Agreement and any exhibit hereto, the
terms of this Agreement shall govern.
(i) Neither
this Agreement nor any provision hereof shall be amended, modified, waived or
discharged orally or by course of conduct, but only by a written agreement
signed by an authorized officer of the Pledgee. The Pledgee shall not
by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of the
Pledgee. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by the Pledgee of any right,
power and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy that the Pledgee would otherwise
have on any future occasion, whether similar in kind or otherwise.
(j) This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or electronic delivery shall have the same force and effect as the
delivery of an original executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by telefacsimile or
electronic transmission shall also deliver an original executed counterpart, but
the failure to do so shall not affect the validity, enforceability or binding
effect of this Agreement.
-11-
(k) Each
Pledgor agrees that, if pursuant to Section 9.16 of the Credit Agreement, it
shall be required to cause a Subsidiary that is not a pledgor to become a
pledgor hereunder, or if for any reason the Borrower desires any such Subsidiary
to become a pledgor hereunder, such Subsidiary shall execute and deliver to the
Pledgee a Pledge Agreement Supplement in substantially the form of Exhibit B (a
“Pledge
Supplement”) attached hereto and shall thereafter for all purposes be a
party hereto and have the same rights, benefits and obligations as a pledgor
party hereto as if originally named as a pledgor herein. The rights
and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Pledgor as a party to this
Agreement.
[Signature
page follows.]
-12-
IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above written.
|
PLEDGORS
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GTE
COLOMBIA HOLDINGS LLC
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By: Gran
Tierra Energy Cayman Islands II Inc., the General Manager and the Manager
of Series 1, Series 2 and Series 3 of GTE Colombia Holdings
LLC
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By:
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/s/ Xxxxxx Xxxx |
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Name:
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Xxxxxx
Xxxx
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Title:
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Chief
Financial Officer
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By:
Gran Tierra Energy Inc., the Manager of Series 4, Series 5, Series 6,
Series 7, Series 8 and Series 9 of GTE Colombia Holdings
LLC
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By:
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/s/ Xxxxxx Xxxx |
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Name:
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Xxxxxx
Xxxx
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Title:
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Chief
Financial Officer
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Address
for Notices:
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c/o
Gran Tierra Energy Inc.
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000,
000-00xx
Xxxxxx XX
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Xxxxxxx,
Xxxxxxx
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|
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Xxxxxx
X0X 0X0
|
|
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Attention:
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Chief
Financial Officer
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Tel:
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x0
(000) 000 0000
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Fax:
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x0
(000) 000 0000
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Email:
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xxxxxxxxxx@xxxxxxxxxx.xxx
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PLEDGORS
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ARGOSY
ENERGY, LLC
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(f/k/a
Argosy Energy Corp.)
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By:
Gran Tierra Energy Cayman Islands II, Inc., its General
Manager
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By:
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/s/ Xxxxxx Xxxx |
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Name:
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Xxxxxx
Xxxx
|
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Title:
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Chief
Financial Officer
|
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Address
for Notices:
|
|
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c/o
Gran Tierra Energy Inc.
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000,
000-00xx Xxxxxx XX
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|
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Xxxxxxx,
Xxxxxxx
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|
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Xxxxxx
X0X 0X0
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|
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Attention:
|
Chief
Financial Officer
|
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Tel:
|
x0
(000) 000 0000
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Fax:
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x0
(000) 000 0000
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Email:
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xxxxxxxxxx@xxxxxxxxxx.xxx
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PLEDGEE
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|
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STANDARD
BANK PLC,
as
Administrative Agent for the Secured Parties
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By:
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/s/ Xxxxxx Xxxxxxxx |
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Name: Xxxxxx
Xxxxxxxx
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Title: Senior
Vice President
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By:
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/s/ Xxxxxxxx X. Xxxxxx |
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Name: Xxxxxxxx
X. Xxxxxx
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Title:
Managing Director, Global Head of Energy
Finance
|
|
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Address
for Notices:
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|
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0xx
Xxxxx, Xxxxxx Xxxxxx Xxxxx
|
|
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00
Xxxxxxx Xxxx
|
|
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Xxxxxx
XX0X 0XX
|
|
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Attention:
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Xxxxxx
Xxxxxxx
|
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Tel:
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x00
(0) 00 0000 0000
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Fax:
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x00
(0) 00 0000 0000
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Email:
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xxxxxx.xxxxxxx@xxxxxxxxxxxx.xxx
and
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xxxxxx-xxxxxxxxxx@xxxxxxxxxxxx.xxx
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With
a copy to:
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|
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000
Xxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, XX 00000
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|
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Xxxxxx
Xxxxxx of America
|
|
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Attention:
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Xxxxx
Ivulic
|
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Tel:
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x0
(000) 000 0000
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Fax:
|
x0
(000) 000 0000
|
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Email:
|
xxxxx.xxxxxx@xxxxxxxxxx.xxx
|
EXHIBIT
A
TO
PLEDGE
AGREEMENT
|
Issuer
|
Percentage of Outstanding
Interests Owned
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Pledgor
|
||
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Gran Tierra Energy Colombia, Ltd.
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99.2857% (Limited Partner)
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GTE Colombia Holdings LLC
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||
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Gran Tierra Energy Colombia, Ltd.
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0.7143% (General Partner)
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Argosy Energy, LLC
(f/k/a Argosy Energy Corp.)
|
A-1
EXHIBIT
B
TO
FORM
OF
PLEDGE
SUPPLEMENT
This PLEDGE SUPPLEMENT, dated as
of __________, _____ (this “Supplement”),
supplements the Partnership Pledge Agreement, dated as of January 1, 2009 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the “Pledge
Agreement”), among the initial signatories thereto and each other Person
which from time to time thereafter became a party thereto pursuant to Section 10(k) thereof
(each, individually, a “Pledgor” and,
collectively, the “Pledgors”), in favor
of the Pledgee and the Secured Parties in respect of partnership interests in
GRAN TIERRA ENERGY COLOMBIA, LTD. (formerly Argosy Energy International), a
limited partnership organized under the laws of the State of Utah (Registered
No. 2110646-0180).
WITNESSETH:
WHEREAS, capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Pledge Agreement;
WHEREAS, the Pledge Agreement provides
that additional parties may become Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this
Supplement;
WHEREAS, pursuant to the provisions of
Section 10(k)
of the Pledge Agreement, the undersigned is becoming a pledgor under the Pledge
Agreement; and
WHEREAS, the undersigned desires to
become a pledgor under the Pledge Agreement in order to induce the Banks to
continue to make Loans and provide other financial accommodations under the
Credit Agreement and to induce the Designated Hedge Counterparty to continue to
provide financial accommodations under the Designated Hedging Agreement as
consideration therefor;
NOW, THEREFORE, the undersigned agrees,
for the benefit of the Pledgee and the Secured Parties, as follows:
SECTION 1. In accordance
with the Pledge Agreement, the undersigned by its signature below becomes a
pledgor under the Pledge Agreement with the same force and effect as if it were
an original signatory thereto as a pledgor and the undersigned hereby (a) agrees
to all the terms and provisions of the Pledge Agreement applicable to it as a
pledgor thereunder and (b) represents and warrants that the representations and
warranties set forth in Section 4 of the
Pledge Agreement are true and correct with respect to the undersigned on and as
of the date hereof, except as otherwise disclosed to the
Pledgee. In furtherance of the foregoing, each reference to a
“Pledgor” in the Pledge Agreement shall be deemed to include the
undersigned.
B-1
SECTION 2. The undersigned
hereby represents and warrants that this Supplement has been duly authorized,
executed and delivered by the undersigned and constitutes a legal, valid and
binding obligation of the undersigned, enforceable against it in accordance with
its terms.
SECTION 3. Except as
expressly supplemented hereby, the Pledge Agreement shall remain in full force
and effect in accordance with its terms.
SECTION 4. In the event any
one or more of the provisions contained in this Supplement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Pledge
Agreement shall not in any way be affected or impaired.
SECTION 5. Without limiting
the provisions of the Credit Agreement (or any other Loan Document, including
the Pledge Agreement), the undersigned agrees to reimburse the Pledgee and each
Secured Party for its reasonable out-of-pocket expenses in connection with this
Supplement, including attorneys’ fees and expenses of the Pledgee and the
Secured Parties.
SECTION 6. THE VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS SUPPLEMENT AND ANY DISPUTE ARISING OUT OF
THE RELATIONSHIP BETWEEN ANY PLEDGOR AND PLEDGEE OR ANY SECURED PARTY, WHETHER
IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
B-2
SECTION 7. WITHOUT LIMITING
THE EFFECT OF SECTION
8 OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY IRREVOCABLY CONSENTS
AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE
OF NEW YORK, SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICHEVER
PLEDGEE MAY ELECT, AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH
RESPECT TO ANY ACTION INSTITUTED THEREIN ARISING UNDER THIS PLEDGE AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF ANY PLEDGOR AND PLEDGEE OR ANY SECURED PARTY IN
RESPECT OF THIS PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, AND AGREES
THAT ANY DISPUTE WITH RESPECT TO ANY SUCH MATTERS SHALL BE HEARD ONLY IN THE
COURTS DESCRIBED ABOVE (EXCEPT THAT PLEDGEE AND THE SECURED PARTIES SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY PLEDGOR OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTION WHICH THE PLEDGEE DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON ANY COLLATERAL AT ANY TIME GRANTED BY THE
BORROWER OR ANY PLEDGOR TO PLEDGEE OR ANY SECURED PARTY OR TO OTHERWISE ENFORCE
ITS RIGHTS AGAINST ANY PLEDGOR OR ITS PROPERTY). THE UNDERSIGNED
HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS
WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING. IF FOR ANY REASON CT
CORPORATION SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE UNDERSIGNED AGREES
TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE PLEDGEE. THE
UNDERSIGNED HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY CERTIFIED MAIL
(RETURN RECEIPT REQUESTED) DIRECTED TO ITS ADDRESS SET FORTH ON THE SIGNATURE
PAGES HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS, OR, AT PLEDGEE’S
OPTION, BY SERVICE UPON ANY PLEDGOR IN ANY OTHER MANNER PROVIDED UNDER THE RULES
OF ANY SUCH COURTS. WITHIN
SIXTY (60) DAYS AFTER SUCH SERVICE, ANY PLEDGOR SO SERVED SHALL APPEAR IN ANSWER
TO SUCH PROCESS, FAILING WHICH SUCH PLEDGOR SHALL BE DEEMED IN DEFAULT AND
JUDGMENT MAY BE ENTERED BY THE PLEDGEE AGAINST SUCH PLEDGOR FOR THE AMOUNT OF
THE CLAIM AND OTHER RELIEF REQUESTED.
SECTION 8. WITHOUT LIMITING
THE EFFECT OF SECTION
8 OF THE PLEDGE AGREEMENT, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING
UNDER THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
THERETO IN RESPECT OF THIS SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT ANY PLEDGOR, ANY SECURED PARTY OR PLEDGEE MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY
JURY.
B-3
SECTION 9. This Supplement
hereby incorporates by reference the provisions of the Pledge Agreement, which
provisions are deemed to be a part hereof, and this Supplement shall be deemed
to be a part of the Pledge Agreement.
SECTION 10. This Supplement
may be executed in any number of counterparts, each of which shall be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Supplement by
telefacsimile shall have the same force and effect as the delivery of an
original executed counterpart of this Supplement. Any party
delivering an executed counterpart of this Supplement by telefacsimile shall
also deliver an original executed counterpart, but the failure to do so shall
not affect the validity, enforceability or binding effect of this
Supplement.
B-4
IN WITNESS WHEREOF, the parties hereto
have caused this Supplement to the Pledge Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the day
and year first above written.
|
[NAME
OF ADDITIONAL PLEDGOR]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Address:
|
|
|
STANDARD
BANK PLC
|
|
|
for
the benefit of the Secured Parties
|
|
|
By:
|
|
|
Title:
|
|
B-5
