Farm-Out Agreement (Maranta E&P Block) by and between Emerald Energy Plc Sucursal Colombia and La Cortez Energy Colombia, Inc. dated as of February 6, 2008
EXHIBIT
10.11
Farm-Out
Agreement (Maranta E&P Block) by and between Emerald Energy Plc Sucursal
Colombia and Xx Xxxxxx Energy Colombia, Inc. dated as of February 6,
2008
FARM
OUT AGREEMENT
Maranta
E&P Contract
by and
between
EMERALD
ENERGY PLC SUCURSAL COLOMBIA
and
XX XXXXXX
ENERGY COLOMBIA, INC
TABLE OF
CONTENTS
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ARTICLE
1 DEFINITIONS
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1
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ARTICLE
2 ASSIGNMENT OF INTEREST
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6
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ARTICLE
3 CONDITIONS PRECEDENT TO ASSIGNMENT
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8
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ARTICLE
4 CONSIDERATION
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10
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ARTICLE
5 OBLIGATIONS UNDER CONTRACT
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12
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ARTICLE
6 UNDERTAKING OF THE PARTIES
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12
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ARTICLE
7 REPRESENTATIONS AND WARRANTIES
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15
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ARTICLE
8 TAX
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20
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ARTICLE
9 CONFIDENTIALITY
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20
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ARTICLE
10 NOTICES
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22
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ARTICLE
11 LAW AND DISPUTE RESOLUTION
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23
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ARTICLE
12 FORCE MAJEURE
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23
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ARTICLE
13 DEFAULT
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24
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ARTICLE
14 GENERAL PROVISIONS
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26
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Add
Exhibits
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Exhibit
A
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E&P
Contract
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Exhibit
B
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Joint
Operating Agreement
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Exhibit
C
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Assignment
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FARMOUT
AGREEMENT
THIS
AGREEMENT is entered into on the day of
February 2009 by and between EMERALD ENERGY PLC SUCURSAL COLOMBIA (hereinafter
referred to as “Farmor”), a Colombian branch of a company existing under the
laws of The Isle of Man, United Kingdom and XX XXXXXX ENERGY COLOMBIA Inc
(hereinafter referred to as “Farmee”), a company existing under the laws of the
state of Nevada. The companies named above and their respective
successors and assignees (if any) may sometimes individually be referred to as a
“Party” and collectively as the “Parties”.
ARTICLE
1
As used
in this Agreement, the following capitalized words and terms shall have the
meaning ascribed to them below.
-1
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1.1
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AFE
means Authorization for Expenditure for each well, in accordance to the
provisions of the JOA.
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1.2
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Affiliate
means, in connection with a specified Person (the “Specified
Person”), (i) other Person who, directly or indirectly, is
controlled by or is under common control of such Specified Person or any
of its shareholders; (ii) any Person holding directly or indirectly 50% or
more of the capital of the Specified Person; and (iii) any Person in whose
capital said Specified Person holds directly or indirectly 50% or more of
its paid-in capital.
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1.3
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Agreement
means this Farmout Agreement together with its Exhibits and any extension,
renewal or amendment hereof agreed to in writing by the
Parties.
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1.4
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Appraisal
Well means any well, the purpose of which at the time of the
commencement of drilling is to evaluate an accumulation of Hydrocarbons,
which accumulation was at that time proven by prior
drilling.
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1.5
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Approval
Date means the date on which the Government formally approves or
endorses the Assignment of the Participating Interest transferred
hereunder, according to Paragraph, Article
3.1
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1.6
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Assignment
means the document to be executed by the Parties, in the exact form
attached to this Agreement as Exhibit C for the Transaction Interest
assignment, by which the Transaction Interests is transferred and conveyed
to the Farmee by the Farmor as provided
hereunder.
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1.7
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Assignment
Date means the date on which the parties execute the Assignment
documents for the Assignment.
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1.8
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Completion
means an operation intended to complete a well through the Christmas tree
as a producer of Hydrocarbons in one or more Zones, including, the setting
of production casing, perforating, stimulating the well and production
Testing conducted in such operation. "Complete" and other
derivatives shall be construed
accordingly.
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-2
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1.9
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Consequential
Loss means any indirect or consequential loss howsoever caused or
arising whether under contract, by virtue of any fiduciary duty, in tort
or delict (including negligence), as a consequence of breach of any duty
(statutory or otherwise) or under any other legal doctrine or principle
whatsoever whether or not recoverable at common law or in equity.
“Consequential Loss” shall be deemed to include, without prejudice to the
generality of the foregoing, the following to the extent to which they
might not otherwise constitute indirect or consequential
loss:
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(a)
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loss
or damage arising out of any delay, postponement, interruption or loss of
production, any inability to produce, deliver or process hydrocarbons or
any loss of or anticipated loss of use, profit or
revenue;
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(b)
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loss
or damage incurred or liquidated or pre-estimated damages of any kind
whatsoever borne or payable, under any contract for the sale, exchange,
transportation, processing, storage or other disposal of
hydrocarbons;
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(c)
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losses
associated with business interruption including the cost of overheads
incurred during business
interruption;
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(d)
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loss
of bargain, contract, expectation or
opportunity;
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(e)
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any
other loss or anticipated loss or damage whatsoever in the nature of or
consequential upon the foregoing.
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1.10
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Conditions
Precedent means all of the conditions enumerated in Article
3.1.
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1.11
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Consideration
has the meaning given in Article 4
hereof.
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1.12
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Continuous First
Appraisal: has the meaning that the first Appraisal Well
is drilled using the same drilling rig, and under the same rig
mobilization on the Maranta Contract Area, as the Exploration Well in the
First Farmin Works.
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1.13
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Contract
means the Maranta E&P Contract attached as Exhibit A effective
September 12nd,
2006 by and between Farmor and the AGENCIA NACIONAL DE HIDROCARBUROS
(“XXX”) for the exploration and production of hydrocarbons in the Contract
Area.
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1.14
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Contract
Area means the area or block more particularly described in the
Article 3 of the Contract.
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-3
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1.15
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Development
Well means any well, the purpose of which at the time of the
commencement of drilling is to produce an accumulation of Hydrocarbons,
which accumulation was at that time proven by prior
drilling.
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1.16
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Documents
means the Contract, the JOA, the Assignment, and others documents related
to this Agreement.
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1.17
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Effective
Date is the date of execution of this
Agreement.
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1.18
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Exploration
Well means any well, the purpose of which at the time of the
commencement of drilling is to explore for an accumulation of
Hydrocarbons, which accumulation was at that time unproven by
drilling.
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1.19
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Farmin
Area is the Maranta E&P Contract Area as defined in Exhibit
A.
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1.20
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Farmin
Works has the meaning given in Article
4.1
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1.21
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Government
means the AGENCIA NACIONAL DE HIDROCARBUROS (hereinafter
XXX”).
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1.22
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Guarantee means
a financial instrument that guarantees payment of an
obligation.
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1.23
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Hydrocarbons
mean all substances which are subject to and covered by the Contract,
including crude oil and natural
gas.
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1.24
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Interim
Period means the period commencing from the date of the execution
of this Agreement until the date of satisfaction of all obligations of the
Farmee set forth in Article 4.1.A, as accepted by the
Farmor.
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1.25
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JOA
means the Joint Operating
Agreement.
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1.26
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Laws
means those laws, statutes, rules and regulations governing activities
under the Contract, including but not limited to any and all applicable
oil and gas regulations.
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1.27
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Operator
means Farmor, which has been designated by the Parties in the Agreement
and the parties in the Contract to conduct operations in the Contract
Area, in accordance with the
Agreement.
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-4
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1.28
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Participating
Interest means
the undivided interests of such party expressed as a percentage of the
total interest, rights and obligations derived from the
Contract.
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1.29
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Person
shall mean any individual, corporation, company, partnership, trust, or
unincorporated organization.
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1.30
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Phases:
means one of the phases of the Exploration Period referred to in the
Contract.
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1.31
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Senior
Managerial Personnel means, with respect to a Party, any individual
who functions as its designated manager or supervisor who is responsible
for or in charge of onsite drilling, construction or production and
related operations, and any individual who functions for that Party or one
of its Affiliates at a management level equivalent to or superior to such
individual, and any officer or director of that Party or one of its
Affiliates.
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1.32
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Sidetracking
means the directional control and intentional deviation of a well
from vertical so as to change the bottom hole location unless done to
straighten the hole or to drill around junk in the hole or to overcome
other mechanical difficulties. "Sidetrack" and other
derivatives shall be construed
accordingly.
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1.33
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Testing
means an operation intended to evaluate the capacity of a Zone or
intervals of interest inside a reservoir to produce Hydrocarbons in the
Farmin Area. "Test" and other derivatives shall be construed
accordingly.
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1.34
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Transaction
Interest means
a Participating Interest of up to 20% Participating Interest of the Farmor
interest, or less than 20% pursuant to the Article 13.4 of this Agreement
, rights and obligations in the Contract, the JOA and other
Documents.
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1.35
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USD
means the currency of the United States of America, the United States
Dollar.
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1.36
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Willful
Misconduct or Gross Negligence means an
intentional, conscious or reckless disregard by Senior Managerial
Personnel of any of the Parties, of good and prudent oil and gas field
practice or any of the terms of this Agreement in utter disregard of
avoidable and harmful consequences but shall not include any act,
omission, error of judgment or mistake made in the exercise in good faith
of any function, authority or discretion vested in or exercisable by such
Senior Managerial Personnel and which in the exercise of such good faith
is justifiable by special circumstances, including but not limited to
safeguarding of life, property or the environment and other
emergencies.
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-5
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1.37
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Zone
means a stratum of earth containing or thought to contain an accumulation
of Hydrocarbons separately producible from any other accumulation of
Hydrocarbons.
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ARTICLE
2
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2.1
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Subject
to the satisfaction of the Conditions Precedent for the assignment of the
Transaction Interests and in exchange for the components of Consideration set
forth in Section 4.1.A of this Agreement for the Transaction Interest, Farmor
shall assign and transfer to Farmee, and Farmee agrees to accept, the
Transaction Interests and the Parties shall execute and deliver the Assignment.
While the Government approval is granted, this Agreement and the attached JOA
shall govern the relations between the Parties. The procedure to obtain such
Government approval will only begin after the fulfillment of the Consideration
set forth in Section 4.1.A by the Farmee.
For the
avoidance of doubt, the assignment and transfer of the Transaction Interests
shall take place only after the fulfillment of the components of Consideration
set forth in Section 4.1.A of this Agreement for such Transaction Interest by
the Farmee.
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The
relationship between parties, the assignment and the transfer of the
Transaction Interest shall take place pursuant to the Colombian law and
this farmout agreement.
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With the
execution of the Assignment, The Parties agree to execute the JOA attached as
Exhibit B, herein approved and initialized by the Parties. The
parties agree that the prevision included in Article 3.2 of the JOA, shall be
filled out in accordance to the final Participating Interests. The effective
date and execution of the JOA shall be the date of satisfaction of all
obligations of the Farmee set forth in Article 4.1.A.
-6
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2.3
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Farmor
and Farmee shall be bound by this Agreement as of the Effective Date and
shall fully perform all of their respective obligations under this
Agreement.
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2.4
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After the
assignment of the Transaction Interest contemplated under this Article 2 and
subject to the satisfaction, or waiver, of the Conditions Precedent relating to
the Transaction Interest, the Participating Interest of the Farmor and Farmee in
the interest, rights and obligations in the Farmin Area shall be:
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Emerald
Energy PLC Sucursal Colombia:
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80 | % | ||
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Xx
Xxxxxx Energy Colombia Inc.:
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20 | % | ||
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Total
:
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100 | % |
Except in
the case the Farmee Participating Interest shall be less than 20%, if Article
13.4 of this Agreement is applied.
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2.5
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The
Farmee shall provide to Farmor within 15 days after the satisfaction of
the Consideration for the Transaction Interests by the Farmee foreseen in
section 4.1.A, all documentation required for the approval of the
Assignment of the Transaction Interest by the Government. The
Assignment of such Transaction Interest shall be executed within 30 days
after the satisfaction of the Consideration for such Transaction Interest
by the Farmee, and Farmor shall deliver the Assignment within 15 days to
the Government for approval.
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-7
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The
Farmor has no obligation whatsoever to ensure approval from Government or
third parties and bears no responsibility for the Government’s and third
parties’ decisions regarding such
approvals.
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All
the terms and conditions contained in the approval documents executed by
XXX for the conveyance of the Transaction Interest, are mandatory and
prevail over any condition included in this Agreement. Such documents
shall be regarded as part of the Assignment attached in Exhibit
C.
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In
the event that the Government does not approve the Assignment and subject
to the fulfillment of the obligation of the Farmee to provide the Farmor
with the required documentation for Government’s approval, the Parties
shall use their best endeavors to seek in good faith a legal way to enter
into an agreement by under equivalent terms of this Agreement
and the JOA, that shall privately govern the relations between the
Parties, and the Farmor will continue representing the Parties, as
provided in section 2.4, before the Government, their rights, interests
and obligations in the Contract.
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ARTICLE
3
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The
validity of the execution of the Assignment related to the Transaction
Interest is subject to the satisfaction or waiver of all of the following
conditions, collectively called “Conditions Precedent”,
that:
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A.
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The
Farmee fulfills the terms of the Consideration set forth is Section 4.1.A,
relating to the Transaction Interest ;
and
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-8
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B.
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The
Parties obtain approval of the Government to the Assignment in writing as
required under the Contract. If government does not grant the
approval the private agreement executed as stated in sections 2.1 and 2.5
shall fulfill this
condition; and
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C.
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The
Parties obtain any other required authority consents for the transfer of
the Transaction Interest (if any) proposed to be transferred hereunder in
writing; and
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D.
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The
Parties execute the JOA attached herein as Exhibit
B.
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Each
party shall execute all documents, and do all such acts and things within its
power to ensure the Conditions to Assignment are satisfied for the assignment of
the Transaction Interests.
Notwithstanding,
the third parties and the Government approvals are out of the control of the
Parties, each party shall execute all documents and do all such acts and things
within its power required to obtain such approvals.
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3.3.
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In the
event of material breach of this Agreement by any of the Parties, then the other
Party has the right to terminate this Agreement by giving notice to the other
Party in accordance with the provisions of Articles 10 - NOTICES and 13 - DEFAULT.
Farmee
hereby acknowledges that any delay in properly performing their obligations set
forth in Article 4.1.A. hereunder shall automatically cause damages to Farmor,
as such delay will directly affect the terms of the
Agreement. The affected Party may claim in full any
damages suffered as a consequence of a breach or delay of the breaching or
delayed Party in the performance of its obligations, in which case such damages
shall be proven in accordance with applicable law. In the event
of delay of the Farmee to pay any due sums, the damages shall be exclusive
equivalent to the moratory interest foreseen in Clausde 13.1.
-9
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ARTICLE
4
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4.1
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In
Consideration for the assignment of the Transaction Interest hereunder,
the Farmee agrees to the following
:
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A.
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The
Farmee will acquire a 20% Participating Interest in the Farmin Area by
paying a carry of the following
activities:
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A.1 The
drilling of the exploratory well of the Farmin Works, by paying a 3.25 to 1
carry of the actual dry-hole cost (including Overhead ); which
is estimated at US$7.50 MM (before overhead) in accordance
with the corresponding AFE. Farmee shall pay 65% of the dry hole
cost. Payment shall consist of a first sum: of$2.433.000 USD payable according
to the instructions issued by Farmor, within 12 days after
execution of this Agreement, a second payment of $2.433.000 USD
payable within 12 days following the starting of mobilization of the rig, with
the remainder on presentation of cash calls related to the Farmin
Works. If after drilling the well it is plugged and abandoned and the
actual dry hole cost is different that the estimated above, the Farmee will pay
the difference if the actual is higher or the Farmor shall reimburse to the
Farmee the difference if the actual dry hole is lower than the
estimated.
A.2. If
the Farmor decides that the well of A.1 shall be completed, and the Farmee
agrees with that decision, then the Farmee will pay 3.25 to 1 of the actual
completion cost (including Overhead), which is estimated at US$1.80 MM (before
overhead). In summary, Farmee shall pay a total of 65% of the actual cost, if
the well is completed. Payment shall consist of an initial sum of $1,170.000
USD, payable within 5 days after a decision or consideration about well
completion is required by the Operator, payable according to the instructions
issued by Farmor with the remainder or credit payable on presentation of cash
calls related to the Farmin Works. Should Farmee not agree with the
well completion decision, this Agreement shall be automatically terminated
without further obligations or indemnities to the other Party.
-10
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A.3 In
addition, Farmee will reimburse Farmor 60% (a 3 to 1 carry) of the actual cost
incurred in Phase 1 work obligation currently estimated at $1.660.000 USD.
Payment shall consist in a unique sum of $993.000 USD, payable within 5 days
after the execution of this Agreement, provided that AFE or invoices of actual
cost incurred have been delivered to Farmee.
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B.
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The
Farmin Works shall comprise the drilling, evaluating, testing and
completing or plugging and abandoning one (1) Exploration Well in the
Maranta Block plus the production testing of this Exploration Well for a
sufficient period, not exceeding 48 hours of flow testing per each
individual prospective zone (DST’S), plus a total of 72 hours for a
comingled flow testing without prejudice of the associated operations
required for each flow testing. The Exploration Well shall be
drilled on the Villeta and Caballos Formations at a location determined by
the Farmor, and shall be sufficient to test the prospective sandstones of
the Villeta and Caballos Formations at a measured total depth expected to
be approximately 10.800 feet
MD.
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C.
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After
the Farmin Works are executed and Farmee has paid a 3.25 to 1 carry of the
Phase 2 and has reimbursed 60% of the cost incurred in Phase 1, all the
costs and revenues associated to the block will be shared in the following
portions: Farmor 80% and Farmee 20%, except in the case the Farmee
Participating Interest shall be less than 20%, if Article 13.4 of this
Agreement is applied.
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D.
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The
Farmor, in good faith declares that to the Effective Date it has no
knowledge of any environmental debt or old well completion requirement by
the Government or any other
authorities.
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E.
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The
Parties agree that all costs relating to the drilling of this Exploration
Well including, but not limited to, well planning and design, well civil
works, rig mobilization and demobilization, drilling, evaluating, testing
and completing, and the plugging and abandonment if not completed, shall
form part of the costs of the Farmin Works and shall be assumed by the
parties in the proportion of their cost participation as per this
Agreement and the JOA.
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-11
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4.2
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The
Parties agree that in the event of Continuous First Appraisal Well
commencing inmediately after the completion of the Exploration well and
prior to the long term test of the Farmin Works, in accordance with the
provisions of the JOA, the Farmee shall have the right and obligation to
participate in such Continuous First Appraisal at a level consistent with
the Transaction Interest, and subject to Article
13.4.
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4.3
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The
Parties agree that payments made by Farmee under this Article 4. are not
refundable in any circumstances except as stated in Article
4.1.A.1 and Article 13.6.
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4.4
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Any
costs, expenses, fees, or duties payable to the Government in connection
with the Assignment, excluding taxes described in Article 8, herein shall
be borne and paid by Farmee.
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4.5
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Farmee
shall have the right to audit all costs and payments made under terms and
conditions of this Agreement in accordance with the
JOA.
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4.6
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After
completion of the work described in Article 4.1, Farmee agrees to pay its
Participating Interest share of costs incurred under the Contract and the
JOA.
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ARTICLE
5
Farmee
hereby ratifies, confirms and accepts the terms of the Contract during the
Interim Period, and agrees to abide by the terms of the aforementioned
agreement.
ARTICLE
6
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During
the Interim Period, Farmor shall comply with the
following:
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-12
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Farmor
shall promptly notify Farmee and provide details upon the occurrence of:
(a) any written notice of default or termination received or given by
Farmor with respect to the Contract, (b) any written notice of any pending
or threatened claim, demand, action, suit, inquiry or proceeding related
to the Contract, (c) any material damage, destruction or loss to major
assets under the Contract, or (d) any event or condition between the date
of this Agreement and the Assignment Date that (i) would have a material
adverse effect on the business, operations, financial condition or results
of operations under the Contract, taken as a whole, or (ii) would render
impossible Farmee’s right to the
Assignment.
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B.
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Farmor
agrees to consult with Farmee on decisions regarding the Farmin Works
under the Contract during the term of this Agreement. Once fulfilled the
Considerations in 4.1,A and executed the Farmin Works, Farmor and Farmee
agree to follow the rules of the JOA regarding to the voting on
decisions about new works different than the Farmin Works under the
Contract during the term of this Agreement. If any dispute arises
regarding technical decisions, Operator’s decision will prevail for
minimum work obligation over the contract. However, on
matters excluded from the minimum obligations foreseen in the Contract,
the Parties shall be subject to an Exclusive Operations procedure as per
the terms of the JOA.
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C.
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The
Farmor shall be Operator. The Operator shall perform the Farmin Works
operations in accordance with the provisions of the Contract, the Laws and
the Agreement; and conduct such operations in a diligent, safe and
efficient manner in accordance with such good and prudent petroleum
industry practices and field conservation principles as are generally
followed by the International Petroleum Industry under similar
circumstances. The Operator will charge to the parties 5% as overhead on
all the operation cost based on the AFE. Farmor shall do the
best efforts to drill the well of the Farmin Works within 6 months
following the Effective Date of this
Agreement.
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-13
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D.
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The
Operator is liable for the operations in accordance with the fiduciary
responsibility he holds as an Operator and shall be liable due to Willful
Misconduct or Gross Negligence. Under no circumstances
whatsoever shall any of the Parties shall be liable for indirect damages
or Consequential Loss.
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E.
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The
Farmor is not responsible for any circumstances that impede the effective
assignment of the Transaction Interest to the Farmee, even in the case
Government decides to terminate the Contract with the Farmor, except for
its Willful Misconduct or Gross
Negligence.
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F.
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Farmee
declares that he has made the due diligence and knows all the information
regarding to the contract area.
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During
the Interim Period Farmee shall comply with each of the following
undertakings:
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a.
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The
Farmee agrees to indemnify and hold the Farmor and the Operator harmless
for any claims, causes of action, or liabilities, which arise out of the
drilling, completion, testing, production, crude commercialization or
abandonment of the operations, including the contractual obligations and
liabilities related to those activities, except in the case that Farmor or
the Operator is guilty of Willful Misconduct or Gross
Negligence.
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b.
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The
Farmee agrees to fulfill the requirements of the Government to hold the
Transaction Interest, prior to the submission of the Assignment to the
Government for the Government’s approval, and to maintain such
requirements fulfilled during the period of the
Contract.
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c.
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The
Farmee agrees to indemnify and hold the Farmor and the Operator harmless
for any claims, causes of action, or liabilities, which arise out any
circumstances that impede the effective assignment of the Transaction
Interest to the Farmee, even in the case Government decides to terminate
the Contract with the Farmor, except in the case that Farmor is guilty of
Willful Misconduct or Gross
Negligence.
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-14
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During
the Interim Period, Farmee and Farmor shall comply with each of the following
undertakings:
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A.
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Each
Party, as applicable, agrees to satisfy, in an expeditious manner, the
Conditions Precedent to the Assignment set forth in Article 3.
Notwithstanding, some of these conditions are out of the control of the
Parties, each party shall execute all documents and do all such acts and
things within its power required to fulfill
it.
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B.
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The
Parties shall not take any action nor fail to take any action prior to the
Approval Date that would result in a breach of any of its representations
and warranties under this
Agreement.
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ARTICLE
7
Except as
otherwise disclosed on the attached schedules, Farmor makes the following
representations and warranties to Farmee as of the Effective Date:
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A.
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Farmor's
Rights.
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Farmor
holds 100% Participating Interest of the Contractor in the
Contract, free and clear of any liens, claims, burdens or encumbrances, other
than the liens, claims, burdens or encumbrances in favor of the Government
according to the terms of the Contract and applicable Laws. The
Contract is in full force and effect and no notice of default, termination, or
breach under the Contract has been received neither by Farmor nor, to the
knowledge of Farmor, any other party to the Contract. The Contract
together with applicable Laws, contains the entirety of the obligation of Farmor
to the Government, and no other understanding or agreement exists between Farmor
and the Government in relation to the subject matter of the Contract except as
otherwise disclosed under this Agreement.
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|
|
B.
|
Farmor
has provided Farmee with complete and correct copies of the Contract.
Where Farmor has provided any translation of a Document, Farmor has done
so as a courtesy to the Farmee and Farmor makes no representation or
warranty as to the accuracy of the
translation.
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|
|
C.
|
There
are no material claims, demands, actions, suits, governmental inquiries,
or proceedings pending or to Farmor's knowledge threatened in connection
with the Contract or other Documents which would have an adverse effect
upon the consummation of the transactions contemplated by this
Agreement.
|
|
|
D.
|
Farmor,
with bona fides, declares that it does not have knowledge of any cause of
action or liability which may originated from circumstances not fereseen
in this Article. From the Effective Date, the Parties shall be
responsible to the extent of their participating cost as per this
Agreement and the JOA, for any liability originated in circumstances
ocurred before the Effective Date or which came to the knowledge of the
Farmor after the Effective Date.
|
Except as
otherwise disclosed in the attached schedules, Farmee makes the following
representations and warranties to Farmor as of the Effective Date:
|
|
A.
|
Claims
and Litigation.
|
There are
no material claims, demands, actions, suits, governmental inquiries, or
proceedings pending, or to Farmee’s knowledge, threatened, against Farmee which
would have an adverse effect upon the consummation of the transactions
contemplated by this Agreement.
|
|
B.
|
Farmee
will have sufficient cash, available lines of credit or other sources of
immediately available funds to enable it to fulfill all of its obligations under
the Contract and this Agreement.
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Farmee
has the technical capability, personnel and resources to fulfill its obligations
under this Agreement.
|
|
D.
|
Farmee
has satisfactorily performed a satisfactory due diligence, and that it has
received all the required and necessary information from the Farmor or any
other third party to execute this Agreement. Such due diligence
includes, but is not limited to:
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|
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i.
|
Before
entering into this Agreement Farmee had the opportunity to visit and
inspect the area of the Contract and its operational conditions thereof
studying and accepting, among other, technical, operational and
environmental conditions at the site. Farmee was also allowed
free access and the opportunity to verify all technical, geological
information and the Contract documentation required, and has been availed
the opportunity to meet with and to receive from Farmor all additional
information requested; and
|
|
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ii.
|
Farmee
was also allowed access to and has reviewed all legal documentation
required to enter into the Contract and documentation associated to
execution hereof. Farmee is fully satisfied with all
aforementioned issues condition;
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|
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iii.
|
Farmee
was able to review and represents its agreement with the Contract
operations development. Farmee also reviewed all licenses and
environmental permits in connection with the Contract and fully accepts
them; and
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|
|
E.
|
Farmee
made an independent decision to accept Transaction Interest, and such
assignment is not based on any statement or recommendation from Farmor or
any of its officers, representatives or employees and Farmor does not make
any express or implicit guarantee as concerns technical conditions or
economic potential of the Assets.
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|
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F.
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Farmee
is authorized to conduct business in Colombia and is in good standing in
all material respects and with all competent authorities, including
without limitation, with XXX and the Ministry of Mines and
Energy.
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The
Parties make the following representations and warranties to each other as of
the Effective Date:
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Each
Party is duly organized and validly existing under the laws of the country where
it is organized. To the extent required, each Party is qualified to
conduct business in the jurisdiction as necessary to perform the Contract. Each
Party has all requisite corporate power and authority to enter into this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by each Party and constitutes a legal, valid and binding
obligation of each Party, enforceable against each Party in accordance with its
terms.
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|
B.
|
Neither
Party nor its Affiliates have made, offered, or authorized and will not make,
offer or authorize any payment, gift, promise or other advantage, in connection
with the matters which are the subject to this Agreement, whether directly or
indirectly through any other person or entity, to or for the use or benefit of
any public official (i.e., any person holding a legislative, administrative or
judicial office, including any person employed by or acting on behalf of a
public agency, a public enterprise or a public international organization) or
any political party or political party official or candidate for office, where
such payment, gift or promise would violate: (a) the applicable laws of
Colombia, the country of operations; (b) the laws of the country of formation of
the Party or such Party's ultimate parent company (or its principal place of
business); or, (c) the principles described in the Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions,
signed in Paris on December 17, 1997, which entered into force on February 15,
1999, and the Convention's Commentaries.
Except as
disclosed in schedules attached to this Agreement, the execution, delivery, and
performance of this Agreement by each Party, the consummation of the
transactions 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;
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(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.
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D.
|
All
representations and warranties given under this Article 7 shall, for the
Contract term, be deemed repeated and valid, true and correct as of the
Approval 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 Approval Date or the execution of the Assignment, whichever is
later.
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|
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E.
|
Each
of the Parties agrees to indemnify and hold the other Party harmless for
any claims, causes of action, or liabilities, which arise out of the
breach of any of the warranties and representations under this Article by
the indemnifying Party.
|
Except
for the representations and warranties provided in this article, Farmor and
Farmee make no, and disclaim any, warranty or representation of any kind, either
express, implied, statutory, or otherwise, including, without limitation, the
accuracy or completeness of any data, reports, records, projections,
information, or materials now, heretofore, or hereafter furnished or made
available to Farmee in connection with this agreement.
Under no
circumstances whatsoever shall either Party be liable to the other for
Consequential Loss arising out of any breach by that Party of the
representations and warranties provided in this article.
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ARTICLE
8
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8.1
|
Each
Party shall be responsible for reporting and discharging its own tax measured by
the profit or income of the Party and the satisfaction of such Party’s share of
all contract obligations under the Contract and under this
Agreement. 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 report and discharge such taxes or satisfy such 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. Operator shall provide the other Party,
in a timely manner and at such Party’s sole expense, with such information with
respect to Joint Operations as such Party may reasonably request for preparation
of its tax returns or responding to any audit or other tax
proceeding.
|
8.2
|
|
|
If
interpretation or enforcement of the 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.
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ARTICLE
9
|
9.1
|
Except
as otherwise provided in the Contract, each Party agrees that all
information disclosed under this Agreement, except information in the
public domain or lawfully in possession of a Party prior to the Effective
Date, shall be considered confidential and shall not be disclosed to any
other person or entity without the prior written consent of the Party
which owns such confidential information. This obligation of
confidentiality shall remain in force during the term of the Contract.
Notwithstanding the foregoing, confidential information may be disclosed
without consent and without violating the obligations contained in this
Article in the following
circumstances:
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|
|
(1)
|
to
an Affiliate provided the Affiliate is bound to the provisions of this
Article 9 and the Party disclosing is responsible for the violation of an
Affiliate;
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(2)
|
to
a governmental agency or other entity when required by the Contract or by
as a court of law;
|
|
|
(3)
|
to
the extent such information is required to be furnished in compliance with
the applicable Laws, or pursuant to any legal proceedings or because of
any order of any court binding upon a
Party;
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|
|
(4)
|
to
attorneys engaged, or proposed to be engaged, by any Party where
disclosure of such information is essential to such attorneys' work for
such Party and such attorneys are bound by an obligation of
confidentiality;
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|
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(5)
|
to
contractors and consultants engaged, or proposed to be engaged, by any
Party where disclosure of such information is essential to such
contractor’s or consultant’s work for such
Party;
|
|
|
(6)
|
to
a bona fide prospective transferee of a Party’s Participating Interest, or
portion thereof, to the extent appropriate in order to allow the
assessment of such Participating Interest (including an entity with whom a
Party and/or its Affiliates are conducting bona fide negotiations directed
toward a merger, consolidation or the sale of a majority of its or an
Affiliate's shares);
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|
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(7)
|
to
a bank or other financial institution to the extent appropriate to a Party
arranging for funding;
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|
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(8)
|
to
the extent such information must be disclosed pursuant to any rules or
requirements of any government or stock exchange having jurisdiction over
such Party, or its Affiliates; provided that such Party shall
comply with the requirements of Article 14.10
hereunder;
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|
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(9)
|
to
its respective employees, subject to each Party taking sufficient
precautions to ensure such information is kept
confidential;
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|
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(10)
|
to
the extent any information which, through no fault of a Party, becomes a
part of the public domain; and
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|
|
(11)
|
to
the other parties to the Contract and the Government solely to the extent
as may be required to satisfy the Conditions to
Assignment.
|
|
9.2
|
Disclosure
as pursuant to Articles 9.1(5), (6), (7) and (11) shall not be made unless
prior to such disclosure the disclosing Party has obtained a written
undertaking from the recipient party to keep the information strictly
confidential for at least as long as the period set out above and to use
the information for the sole purpose described in Articles 9.1(5), (6),
(7), and (11), whichever is applicable, with respect to the disclosing
Party.
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ARTICLE
10
All
notices authorized or required between the Parties by any of the provisions of
this Agreement shall be in writing (in Spanish) and delivered in person or by
courier service or by any electronic means of transmitting written
communications which provides written confirmation of complete transmission, and
properly addressed to the other Party. Verbal communication does not constitute
notice for purposes of this Agreement, and e-mail addresses and telephone
numbers for the Parties are listed below as a matter of convenience
only. A notice given under any provision of this Agreement shall be
deemed delivered only when received by the Party to whom such notice is
directed, and the time for such Party to deliver any notice in response to such
originating notice shall run from the date the originating notice is
received. “Received”
for purposes of this Article shall mean actual delivery of the notice to the
address of the Party specified hereunder.
Name: Emerald Energy PLC Sucursal
Colombia
|
Address:
|
Xxxxxxx
0 X Xx. 00-00. Oficina 603 D. Edificio Citibank. Bogotá, D.C.,
Colombia
|
|
Attention:
|
General
Manager, Xxxxxx Xxxxxx
|
|
Facsimile:
|
6513500
ext 504
|
|
Email:
|
xxxxxxx@xxxxxxx.xxx.xx
|
|
Telephone:
|
(000)
0000000 xxx
000.
|
Name: Xx Xxxxxx Energy Colombia,
Inc.
|
Attention:
|
General
Manager, Xxxxxx Xxxxxxxxx
|
|
Address:
|
Xxxxx
00 Xx. 0-00 Xx. 000
|
|
Xxxxxxxxx:
|
(000)
0000000
|
|
Email:
|
xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
|
|
Telephone
|
(000)
0000000
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ARTICLE
11
|
11.1
|
The
substantive law of Colombia, exclusive of any conflicts of laws principles that
could require the application of any other law, shall govern this Agreement for
all purposes, including the resolution of disputes between or among
Parties.
|
11.2
|
Except as
may be agreed otherwise in the JOA, all disputes arising out of or in connection
with this Agreement, that Parties do not resolve amicably within a period of 30
days, shall be referred to and finally resolved by arbitration under the rules
of the Chamber of Commerce of Bogotá Arbitration. The arbitration
shall be held in Bogotá, D. C., and the language of the arbitration
shall be Spanish. The number of arbitrators shall be three, each party may
appoint one of them, the other arbitrator shall be appointed by the Chamber of
Commerce of Bogotá. If one othe Parties does not appoint its
arbitrator, shall be appointed by the Chamber of Commerce of Bogotá The Parties
may not interrupt their obligation under the Agreement with respect to issues
not directly related to the Arbitration.
ARTICLE
12
If as a
result of Force Majeure, any Party is rendered unable, wholly or in part, to
carry out its obligations under this Agreement, other than the obligation to pay
any amounts due, then the obligations of the Party giving such notice, so far as
and to the extent that the obligations are affected by such Force Majeure, shall
be suspended during the continuance of any inability so caused and for such
reasonable period thereafter as may be necessary for the Party to put itself in
the same position that it occupied prior to the Force Majeure, but for no longer
period. The Party claiming Force Majeure shall notify the other
Parties of the Force Majeure within a reasonable time after the occurrence of
the facts relied on and shall keep all Parties informed of all significant
developments. Such notice shall give reasonably full particulars of
the Force Majeure and also estimate the period of time which the Party will
probably require to remedy the Force Majeure. The affected Party
shall use all reasonable diligence to remove or overcome the Force Majeure
situation as quickly as possible in a commercially reasonable manner but shall
not be obligated to settle any labor dispute except on terms acceptable to it.
All such disputes shall be handled within the sole discretion of the affected
Party. For the purposes of this Agreement, “Force
Majeure” shall have the same meaning as is set out in the
Contract.
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ARTICLE
13
|
13.1
|
If
Farmee fails to comply with any obligations under this Agreement, Farmee
shall be in default and such amounts due shall accrue interest, on a
monthly basis, at the rate per annum equal to the one month
term, London Interbank Offered Rate (LIBOR) for U.S. dollars deposit, as
published in London by the Financial Times or if not published then by the
Wall Street Journal, plus 10% per year, applicable on the first business
day prior to due date of payment and calculated from the due date until
the date of payment. With regard to the first payment in
Article 4.1.A.1, Farmee shall then have a term of 10 days to
rectify. If Farmee does not rectify within such time, this
Agreement will be automatically terminated and Farmee will lose all rights
and all amounts up to US$500.000 paid
before.
|
|
13.2
|
With
regard to the second payment foreseen in Article 4.1.A.1, Farmee shall
then have a term of 10 days to rectify. If Farmee does not
rectify during such time, the Farmee will lose a part of its expected
rights as per the formula foreseen in Article
13.4.
|
|
13.3
|
With
regard to the payment foreseen in Article 4.1.A.3, Farmee shall then have
a term of 2 days to rectify.
|
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|
|
If
not rectified within such time, this Agreement will be automatically
terminated with the obligation to pay a penalty of $500.000
USD.
|
|
13.4
|
For
the other cash payment obligations herein, if the Farmee does not rectify
the default within 5 days of the receipt of the Default Notice, the Farmor
may issue notice of a breach of the Agreement and the Farmee will lose a
part of its expected rights of 20% of working interest in a proportion
equivalent to the amount of the breach of the total actual cost of the
Farmin Works and will loose an additional 5% working interest. For the
avoidance of doubt, i.e. If the Farmee had paid 50% of the Farmin Works
cost against its commitments of 65%, the gained interest will be 10.38% of
working interest in the block.
((50%/64%*20%)-5%).
|
|
13.5
|
If
after such breach of contract, Farmee decides to continue investing and
sharing cost of the Farmin Works, Farmee shall pay 65% of the rest of the
Farmin Works cost without prejudice to the reduction of the working
interest mentioned above.
|
|
13.6
|
If
the Farmor, despite its best efforts, does not drill the well of the
Farmin Works within 6 months of the Effective Date, or if the Contract is
terminated by the XXX within the same period, by causes imputable to
Farmor, except in the event of Force Majeur or Fortuitous event Farmor
shall be in default and any amounts received from the Farmee due shall
accrue interest, at the same rate foreseen in Article 13.1 on the sums
received by Farmee, calculated from the date the amounts were received by
Farmor, and until the date of payment. Farmor shall then have a
term of 30 days to comply with the obligation. Farmee shall
then have a term of 15 days within which it may send a Default Notice,
explaining the reasons of the alleged default. If the Farmor
does not rectify the default within 15 days of the receipt of the Default
Notice, the Farmor will reimburse the sums paid by Farmee under the
Agreement and the Agreement will be
terminated.
|
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ARTICLE
14
|
14.1
|
|
|
All
the communication between the Parties regarding this Agreement or its
execution shall be conducted in Spanish. As well, the Assignment and other
documentation required to execute before the authorities of the Republic
of Colombia shall be performed in Spanish. The only documents to be
conducted in English are this Agreement and the
JOA.
|
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, 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 or the JOA.
|
14.3
|
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.
|
14.4
|
No waiver
by any Party of any one or more defaults by the other 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. 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.
|
14.5
|
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.
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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.
|
14.7
|
|
|
There
shall be no modification of this Agreement except by written consent of
all Parties.
|
In the
event of any conflict between the provisions of the main body of this Agreement
and its Exhibits, the provisions of the main body of the Agreement shall
prevail. In the event of any conflict between this Agreement and the JOA, this
Agreement shall prevail. In the event of any conflict between this Agreement and
the Contract, this Agreement shall prevail unless such would be in violation of
the Laws of the Republic of Colombia or the terms of the Contract.
|
14.9
|
|
|
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 an Exhibit means an
Article or Exhibit 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.
|
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|
14.10
|
This
Agreement may be executed in two (2) counterparts and each such
counterpart shall be deemed an original Agreement for all purposes; provided
that no Party shall be bound to this Agreement unless and until all Parties have
executed a counterpart. For purposes of assembling all counterparts into one
document, Farmor is 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.
|
14.11
|
No public
announcement or statement regarding the terms or existence or this Agreement
shall be made by either Party without prior written consent of Farmor which
shall not be withheld without justification.
After
fulfilling the Considerations, the JOA rules about Public Announcements will
apply.
Operator
shall be responsible for the preparation and release of all public announcements
and statements regarding this Agreement or the Joint Operations; provided that
no public announcement or statement shall be issued or made unless, at least
five days prior to its release, all the Parties have been furnished with a copy
of such statement or announcement and the Operator has obtained their comments
or corrections to the anouncement Where a public announcement
or statement becomes necessary or desirable because of danger to or loss of
life, damage to property or pollution as a result of activities arising under
this Agreement, Operator is authorized to issue and make such announcement or
statement without prior approval of the Parties, but shall promptly furnish all
the Parties with a copy of such announcement or statement.
For the
duration of this Agreement and a period of one (1) year thereafter, the Farmee
or the Farmor shall not hold, trade or otherwise deal, or procure the holding,
trading or otherwise dealing in the securities of Emerald Energy plc or Xx
Xxxxxx Energy Inc. or any of its Affiliated Companies directly
related to the Contract, the Area Contract and/or this Agreement, without the
prior written consent of the Farmor.
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For the
duration of this Agreement and a period of one (1) year thereafter, the Farmee
or the farmor shall not solicit the employment of any of the Farmor’s /
Farmee’s employees or full time contractors, or procure the
solicitation of any of the Farmors’s/ Farmee’s employees or full time
contractors for the purposes of employment.
|
14.14
|
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.
|
14.15
|
Each of
the Parties to this Agreement shall assume their respective legal, accounting
and/or counsels’ fees in connection with negotiation, preparation and entering
into this Agreement.
|
14.16
|
If by any
reason any of the previsions under this Agreement would be voided, the remaining
provisions herein shall, the foregoing notwithstanding, generate all effects. If
any provision herein would be unacceptable and/or inapplicable in any
jurisdiction, such provision shall not be voided and will not lose its effect in
any other jurisdiction.
|
14.17
|
This
Agreement will oblige and inure for the benefit of the Parties, their permitted
successor and assignees. The Parties will have the right to assign their rights
and obligations under this Agreement to any directly or indirectly owned
Affiliate, controlling or controlled company, or to the branch of an affiliated
company, but such assignment shall be subject to the terms foreseen in Article
15.
|
14.18
|
This
Agreement shall not be construed to confer any benefit on any person not being a
Party to this Agreement nor shall it provide any rights to such person to
enforce any of its provisions. The provisions of the English Contracts (Rights
of Third Parties) Xxx 0000 are expressly excluded.
|
14.19
|
Time is
essential for complying with obligations provided under this
Agreement.
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ARTICLE
15
Should the Farmee desire to sell all or
any part of its interests under this Agreement, prior to fulfillment of the
Considerations in Article 4.1.A. Farmee shall obtain the prior authorization
from Farmor. After fulfillment of Considerations in Article 4.1.A., the rules of
JOA about Assignment of Interest will be applicable. 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.
For the
Farmor,
|
Name:
|
|
Legal
Representative
|
|
Emerald
Energy PLC Sucursal Colombia
|
|
For
the Farmee,
|
|
Name:
|
|
Legal
Representative
|
|
Xx
Xxxxxx Energy Colombia
Inc.
|
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