EXECUTION VERSION ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit
10.1
EXECUTION VERSION
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of August 24, 2009 (this “Agreement”), is made
by and among (1) GRAN TIERRA ENERGY INC., a Nevada corporation (Registered No.
C13734-2003) (the “Original Borrower”),
(2) GRAN TIERRA ENERGY CAYMAN ISLANDS INC., an exempted company organized under
the laws of the Cayman Islands (Registered No. MC-213331) (the “New Borrower”) and
(3) STANDARD BANK PLC, as the Majority Bank (as defined in the Credit Agreement
referred to below) and the Administrative Agent (as defined in the Credit
Agreement referred to below).
WITNESSETH:
WHEREAS,
the Original Borrower is a party to that certain Credit Agreement, dated as of
February 22, 2007 (as amended, amended and restated, supplemented or
otherwise modified through the date hereof, the “Credit Agreement”;
capitalized terms used but not defined herein having the meanings assigned to
such terms therein), made by and among the Original Borrower, Gran Tierra Energy
Colombia, Ltd., a limited partnership organized under the laws of the State of
Utah (the “Partnership”), Argosy
Energy, LLC (formerly Argosy Energy Corp.), a limited liability company
organized under the laws of the State of Delaware (the “GP”), the Banks and
the Administrative Agent;
WHEREAS,
pursuant to a corporate reorganization and to facilitate the amendment and
restatement of the Credit Agreement, the Original Borrower wishes to assign to
the New Borrower all of its rights, title and interest in and to the Credit
Agreement and the other Loan Documents, and the New Borrower wishes to assume
all of the duties and obligations of the Original Borrower under the Credit
Agreement and the other Loan Documents;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignment and
Assumption. Each of the parties hereto acknowledges, agrees and confirms
that, with effect from the date hereof (the “Effective Date”), the
New Borrower shall become a party to the Credit Agreement and shall be fully
bound by, and subject to, all of the terms and conditions of the Credit
Agreement which are applicable to the Original Borrower in its capacity as the
Borrower under the Credit Agreement as though the New Borrower were originally a
party to the Credit Agreement, and further, that with effect from the date
hereof, the New Borrower shall be deemed to be the “Borrower” as defined in, and
for all purposes of, the Credit Agreement with effect from and after the date
hereof. Accordingly, with effect from and after the date hereof, each reference
to the Original Borrower and each reference to the term “Borrower” in the Credit
Agreement and the other Loan Documents shall be deemed to be a reference to the
New Borrower, and the New Borrower shall benefit from all of the rights, title
and interest in and to the Credit Agreement and the other Loan Documents held by
the Original Borrower, and shall assume all of the duties and obligations of the
Original Borrower under the Credit Agreement and the other Loan
Documents. For the avoidance of doubt, the Original Borrower shall be
liable, to the extent provided under the Loan Documents in its capacity as
“Borrower”, in respect of any Default or Event of Default which may have
occurred prior to the Effective Date and which the Banks and/or the
Administrative Agent have not specifically agreed to waive in
writing. The New Borrower acknowledges and confirms that it has
received a copy of the Credit Agreement, the other Loan Documents and all
exhibits thereto and has reviewed and understands all of the terms and
conditions thereof.
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2. Release. The
Original Borrower hereby acknowledges, agrees and confirms that, with effect
from the Effective Date, it shall relinquish its rights, title and interest in
and to the Credit Agreement and the Original Borrower is hereby irrevocably
released and forever discharged from all of its obligations under the Credit
Agreement and the other Loan Documents, with effect from the Effective
Date.
3. Representations and
Warranties. The New Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that:
(a) it is
duly organized, validly existing and in good standing (if such concept exists
under the laws of its jurisdiction of organization) under the laws of its
jurisdiction of organization, and is qualified to do business in each
jurisdiction where its ownership or lease of property or conduct of its business
requires such qualification;
(b) the
execution, delivery, and performance of this Agreement and the consummation of
the transactions contemplated hereby (i) are within its corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) do not
contravene its constitutional documents or any applicable law or any of its
contractual obligations, and (iv) will not result in the creation or imposition
of any Lien prohibited by the Credit Agreement;
(c) no
consent, order, authorization, or approval or other action by, and no notice to
or filing with, any Governmental Authority or any other Person is required for
the due execution and delivery of this Agreement by it, the performance of its
obligations hereunder or the consummation of the transactions contemplated
hereby;
(d) it
has duly executed and delivered this Agreement, and this Agreement constitutes a
legal, valid, and binding obligation, enforceable against the New Borrower in
accordance with its terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium, or similar law
affecting creditors’ rights generally and by general principles of
equity;
(e) after
giving effect to this Agreement, no Default or Event of Default has occurred and
is continuing or would result from the consummation of the transactions
contemplated by this Agreement; and
(f) to
the extent not already made above, each of the other representations and
warranties set forth in Section 8 of the Credit Agreement (other than any
representations and warranties relating to the Original Borrower) is true and
correct in all material respects as of the date hereof (unless stated to relate
solely to an earlier date, in which case such representation or warranty shall
be true and correct in all material respects as of such earlier
date).
4. Effect of this
Agreement. Each reference to the Credit Agreement herein or in any other
Loan Document shall hereafter be construed as a reference to the Credit
Agreement as modified hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby.
5. Assignment. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns, provided that
the Original Borrower and the New Borrower may not assign or transfer any of
their respective rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and the Majority
Banks.
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6. Notices. For purposes
of Section 12.02 of the Credit Agreement, the address details for all notices,
requests and other communications to be given to the New Borrower under the
Credit Agreement and the other Loan Documents are as set forth in the “Address
for Notices” specified below its name on the signature pages
hereof.
7. Entire Agreement;
Severability. This Agreement, together with the Credit Agreement and the
other Loan Documents, constitutes the entire agreement among the parties with
respect to the subject matter hereof, the Credit Agreement and such other Loan
Documents and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter
hereof. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8. Headings and
Counterparts. The descriptive headings of this Agreement are for
convenience or reference only and do not constitute a part of this
Agreement. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart, including by facsimile or pdf (with an original
subsequently delivered).
9. No Waiver. Nothing
contained herein shall be construed as, or deemed to be, a waiver of any Default
or Event of Default that may now be in existence or that may hereafter
occur.
10. Governing Law. This
Agreement and the rights and obligations of the parties hereunder shall be
construed and interpreted in accordance with and be governed by the laws of the
State of New York.
11. Submission to
Jurisdiction. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN,
NEW YORK CITY FOR THE PURPOSE OF ANY LEGAL PROCEEDINGS ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
12. Jury Trial Waiver.
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER THIS
AGREEMENT.
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[Remainder
intentionally left blank]
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IN
WITNESS WHEREOF, the parties hereto have entered into this agreement as of the
date first written above.
ORIGINAL
BORROWER:
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GRAN
TIERRA ENERGY
INC.
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By:
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/s/ Xxxxxx Xxxx
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Name: Xxxxxx
Xxxx
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Title:
Chief Financial Officer
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NEW
BORROWER:
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GRAN
TIERRA CAYMAN
ISLANDS
INC.
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By:
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/s/ Xxxxxx Xxxx
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Name:
Xxxxxx Xxxx
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Title:
Director
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Address
for Notices:
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c/o
Gran Tierra Energy Inc.
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300,
000 00xx Xxxxxx XX
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Xxxxxxx,
Xxxxxxx
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Xxxxxx
X0X 0X0
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Attention: Chief
Financial
Officer
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Tel:
(000) 000-0000
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Fax:
(000 000-0000
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Email:
xxxxxxxxxx@xxxxxxxxxx.xxx
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MAJORITY
BANK:
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STANDARD
BANK PLC
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Director
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By:
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/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx
X. Xxxxxx
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Title:
Global Head of Oil &
Gas,
Renewables
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ADMINISTRATIVE
AGENT
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STANDARD
BANK PLC
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Director
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By:
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/s/ Xxxxxxxx X. Xxxxxx
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Name:
Xxxxxxxx X. Xxxxxx
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Title:
Global Head of Oil &
Gas,
Renewables
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