FORM OF EXCHANGE AGENT AGREEMENT
Exhibit
99.1
[•],
2009
FORM OF EXCHANGE AGENT
AGREEMENT
The Bank
of New York Mellon
000
Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: International
Corporate Trust
Ladies
and Gentlemen:
Ecopetrol
S.A., a mixed economy company organized and existing under the laws of the
Republic of Colombia (the “Company”), proposes to make an offer (the “Exchange
Offer”) to exchange up to US$1,500,000,000 aggregate principal amount of its
registered 7.625% Notes due 2017 (the “New Notes”), for a like principal amount
of its outstanding unregistered 7.625% Notes due 2017 (the “Old
Notes”). The Old Notes were issued and the New Notes will be issued
under an indenture dated as of July 23, 2009, among the Company and The Bank of
New York Mellon, as Trustee. The terms and conditions of the Exchange
Offers as currently contemplated are set forth in a prospectus dated [•], 2008
(the “Prospectus”), forming a part of the registration statement of the Company
on Form F-4 (File No. 333-160965), as amended, (the “Registration Statement”)
filed with the Securities and Exchange Commission (the “SEC”) which is proposed
to be distributed to all record holders of the Old Notes who acquired such Old
Notes pursuant to an exemption from the registration requirements of the
Securities Act of 1933, as amended (the “Securities Act”). The Old
Notes and the New Notes are collectively referred to herein as the “Notes” or
the “Securities.” Capitalized terms used herein and not defined shall
have the respective meanings ascribed to them in the Prospectus.
The
Company hereby appoints The Bank of New York Mellon to act as exchange agent
(the “Exchange Agent”) in connection with the Exchange
Offer. References hereinafter to “you” shall refer to The Bank of New
York Mellon.
The
Exchange Offer is expected to be commenced by the Company on or about [•], 2009.
The Automated Tender Offer Program (“ATOP”) of the Book-Entry Transfer Facility
(as defined below) is to be used by the holders of the Old Notes to accept the
Exchange Offer and contains instructions with respect to the delivery of
certificates for Old Notes tendered in connection therewith.
The
Exchange Offer shall expire at midnight, New York City time, on [•], 2009 or on
such subsequent date or time to which the Company may extend the Exchange Offer
(the “Expiration Date”). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
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The
Company expressly reserves the right to amend or terminate the Exchange Offer,
and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption “The Exchange Offer
Conditions to the Exchange Offer.” The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or non-acceptance to you as promptly as practicable.
In
carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You will
perform such duties and only such duties as are specifically set forth in the
section of the Prospectus captioned “The Exchange Offer” or as specifically set
forth herein; provided, however, that in no
way will your general duty to act in good faith be discharged by the
foregoing.
2. You will
establish a book-entry account with respect to the Old Notes at The Depository
Trust Company (the “Book-Entry Transfer Facility”) for purposes of the Exchange
Offer within two business days after the date of the Prospectus, and any
financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are
to examine confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility and any other documents delivered or mailed to you
by or for holders of the Old Notes to ascertain whether: (i) such documents are
duly executed and properly completed in accordance with instructions set forth
therein; and (ii) the Old Notes have otherwise been properly
tendered. In each case where any document has been improperly
completed or executed or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will use your best efforts to
inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the
approval of the President, the General Secretary or the Financial Vice President
of the Company (such approval, if given orally, to be promptly confirmed in
writing), or by such officers of the Company as indicated in writing by the
President or General Secretary of the Company, you are authorized to waive any
irregularities in connection with any tender of Old Notes pursuant to the
Exchange Offer.
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5. Tenders
of Old Notes may be made only as set forth in the section of the Prospectus
captioned “The Exchange Offer – Procedures for Tendering,” and Old Notes shall
be considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding
the provisions of this Section 5, Old Notes which the President, the General
Secretary or the Financial Vice President of the Company, or by such officers of
the Company as indicated in writing by the President or General Secretary of the
Company, shall approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be promptly
confirmed in writing).
6. You shall
advise the Company with respect to any Old Notes received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such
Old Notes.
7. You shall
accept tenders:
(a) in cases
where the Old Notes are registered in two or more names only if signed by all
named holders;
(b) in cases
where the signing person is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted;
and
(c) from
persons other than the registered holder of Old Notes, provided that customary
transfer requirements, including payment of any applicable transfer taxes, are
fulfilled.
You shall
accept partial tenders of Old Notes where so indicated and as permitted in the
Prospectus.
8. Upon
satisfaction or waiver of all of the conditions to the Exchange Offer, the
Company will notify you (such notice, if given orally, to be promptly confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Notes properly tendered and you, on behalf of the Company, will exchange such
Old Notes for New Notes and cause such Old Notes to be
cancelled. Delivery of New Notes will be made on behalf of the
Company by you at the rate of US$1,000 principal amount of New Notes for each
US$1,000 principal amount of the corresponding series of Old Notes tendered
promptly after notice (such notice if given orally, to be promptly confirmed in
writing) of acceptance of said Old Notes by the Company; provided, however, that
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility with any required
signature guarantees and any other required documents. You shall
issue New Notes only in denominations of US$1,000 and integral multiples of
US$1,000 in excess thereof.
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9. Tenders
pursuant to the Exchange Offer are irrevocable, except that, subject to the
terms and upon the conditions set forth in the Prospectus and the Letter of
Transmittal, Old Notes tendered pursuant to the Exchange Offer may be withdrawn
at any time prior to the Expiration Date.
10. The
Company shall not be required to exchange any Old Notes tendered if any of the
conditions set forth in the Exchange Offer are not met. Notice of any
decision by the Company not to exchange any Old Notes tendered shall be given
(if given orally, to be promptly confirmed in writing) by the Company to
you.
11. If,
pursuant to the Exchange Offer, the Company does not accept for exchange all or
part of the Old Notes tendered because of an invalid tender, the occurrence of
certain other events set forth in the Prospectus under the caption “The Exchange
Offer - Conditions to the Exchange Offer” or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer effect
appropriate book-entry transfer, any related required documents relating thereto
that are in your possession, to the persons who deposited them.
12. All
certificates for reissued Old Notes, unaccepted Old Notes or for New Notes shall
be forwarded by first-class mail.
13. You are
not authorized to pay or offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or to engage or
utilize any person to solicit tenders.
14. As
Exchange Agent hereunder you:
(a) shall not
be liable for any action or omission to act unless the same constitutes your own
negligence, willful misconduct or bad faith, and in no event shall you be liable
to a security-holder, the Company or any third party for special, indirect or
consequential damages, or lost profits, arising in connection with this
Agreement, even if you have been advised of the possibility of such damages and
regardless of the form of action;
(b) shall
have no duties or obligations other than those specifically set forth herein or
as may be subsequently agreed to in writing between you and the
Company;
(c) will not
be required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
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(d) shall
not be obligated to take any legal action hereunder which might in your judgment
involve any expense or liability, unless you shall have been furnished with
indemnity reasonably satisfactory to you;
(e) may
conclusively rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other document or
security delivered to you and believed by you to be genuine and to have been
signed or presented by the proper person or persons;
(f) may act
upon any tender, statement, request, document, agreement, certificate or other
instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith believe to be
genuine or to have been signed or presented by the proper person or
persons;
(g) may
conclusively rely on and shall be protected in acting upon written or oral
instructions from any authorized officer of the Company;
(h) may
consult with counsel of your selection with respect to any questions relating to
your duties and responsibilities and the advice or opinion of such counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good faith and in
accordance with the advice or opinion of such counsel;
(i) shall not
advise any person tendering Old Notes pursuant to the Exchange Offer as to the
wisdom of making such tender or as to the market value or decline or
appreciation in market value of any Old Notes; and
(j) shall not
be responsible for delays or failures in performance resulting from acts beyond
your control. Such acts shall include but not be limited to acts of
God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer
viruses, power failures, earthquakes, terrorist attacks or other
disasters.
15. You shall
take such action as may from time to time be requested by the Company (and such
other action as you may deem appropriate) to furnish copies of the Prospectus or
such other forms as may be approved from time to time by the Company, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Company will furnish you with copies of
such documents on your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention:
Chief Financial Officer.
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16. You shall
advise by facsimile transmission the Chief
Financial Officer of the Company (at
the facsimile number (000) 000-0000) and such other person or persons as the Company may
request, daily (and more frequently during the week immediately preceding the
Expiration Date if requested) up to and including the Expiration Date, as to the
number of Old Notes which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons upon oral request
made from time to time prior to the Expiration Date of such other information as
they may reasonably request. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as the Company
may request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration
Date the Company shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare
a final list of all persons whose tenders were accepted, the aggregate principal
amount of Old Notes tendered, the aggregate principal amount of Old Notes
accepted and deliver said list to the Company.
17. For
services rendered as Exchange Agent hereunder, you shall be entitled to such
compensation as shall be agreed in writing between the Company and
you. The provisions of this section shall survive the termination of
this Agreement.
18. You
hereby acknowledge receipt of the Prospectus. Any inconsistency
between this Agreement, on the one hand, and the Prospectus (as it may be
amended from time to time), on the other hand, shall be resolved in favor of the
latter document, except with respect to your duties, liabilities, fees and
indemnification as Exchange Agent.
19. The
Company covenants and agrees to fully indemnify and hold you harmless against
any and all loss, liability, cost or expense, including attorneys' fees and
expenses, incurred without negligence, bad faith or willful misconduct on your
part, arising out of or in connection with your appointment as Exchange Agent
and the performance of your duties hereunder, including, without limitation, any
act, omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document believed by you to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Old Notes believed by
you in good faith to be authorized, and in delaying or refusing in good faith to
accept any tenders or effect any transfer of Old Notes; provided, however, that
the Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
misconduct or bad faith.
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20. You shall
arrange to comply with all requirements under the tax laws of the United States,
including those relating to missing Tax Identification Numbers, and shall file
any appropriate reports with the Internal Revenue Service.
21. You shall
deliver or cause to be delivered, in a timely manner to each governmental
authority to which any transfer taxes are payable in respect of the exchange of
Old Notes, the Company's check in the amount of all transfer taxes so payable;
provided, however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
22. This
Agreement and your appointment as Exchange Agent hereunder shall be construed
and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state, and shall inure
to the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto. EACH OF PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
23. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same agreement.
24. In case
any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
25. This
Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by a written instrument signed
by a duly authorized representative of the party to be charged. This
Agreement may not be modified orally.
26. Unless
otherwise provided herein, all notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar writing) and
shall be given to such party, addressed to it, at its address or telecopy number
set forth below:
If to the
Company:
Ecopetrol X.X.
Xxxxxxx 0
Xx. 00-00
Xxxxxx,
Xxxxxxxx
Facsimile: (000) 000-0000
Attention: Chief
Financial Officer
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If to the
Exchange Agent:
The Bank
of New York Mellon
000
Xxxxxxx Xxxxxx
Xxxxx 0
Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: International
Corporate Trust
27. Unless
terminated earlier in writing by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 17 and 19 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property then held
by you as Exchange Agent under this Agreement.
28. This
Agreement shall be binding and effective as of the date hereof.
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Please
acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
By: ____________________________
Name:
Title:
Accepted
as of the date
first
above written:
THE BANK
OF NEW YORK MELLON, as Exchange Agent
By: ____________________________
Name:
Title:
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