PALMAR LARGO ASSIGNMENT AGREEMENT
Exhibit
10.47
PALMAR LARGO ASSIGNMENT AGREEMENT
This Particular Assignment Agreement (this “Agreement”) is entered into in the City of Buenos Aires
the 1st day of September, 2005 by and between DONG WON CORPORATION (SUCURSAL ARGENTINA),
the Argentine Branch of Dong Won Corporation Korea (a company duly organized and existing under the
laws of Korea), domiciled at Xx. Xxxxxxx 0000, 0xx Xxxxx; Xxxxxx Xxxxx, Xxxxxxxxx
(hereinafter, the “Assignor”), and GRAN TIERRA ENERGY ARGENTINA S.A., (a company duly
organized and existing under the laws of Argentina) registered with the Office of Business
Organizations under number 9392 of the book number 28 of Corporations (“Sociedades Por Acciones”),
domiciled at Xxx Xxxxxx 000, 00xx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx (hereinafter referred
to as “Assignee”). ”. The parties of this Agreement shall be individually referred to as a
“Party” and collectively as the “Parties”.
WITNESSETH:
WHEREAS, Assignor is the holder of a participation right over an Exploration and Exploitation
Concession granted by the Argentine Federal Government under Law No. 17.319 identified as Palmar
Largo Area (hereinafter referred as the “Area”).
WHEREAS, Assignor wishes to assign and transfer to Assignee all of its rights, title and
interests over the Area, as well as any obligation related thereto, as established in this
Agreement, and Assignee is ready, willing and able to accept and pay for such assignment and
transfer and to receive such rights, title and interests and related obligations thereunder subject
to the terms and conditions set forth below;
NOW, THEREFORE, the parties do hereby mutually agree as follows:
1. PRICE OF ASSIGNMENT AND TRANSFER OF RIGHTS
Assignor hereby agrees to assign, grant, convey and transfer to Assignee and Assignee hereby agrees
to purchase and receive from Assignor, for and in consideration of the sum of six million nine
hundred sixty-nine thousand and six hundred fifty nine US Dollars (US$ 6,969,659) (the
“Purchase Price”), Assignor’s participation right, title and interest as described
hereunder (hereinafter the “Assigned Interest”):
1.1 Assignor’s participation right over the Area:
Fourteen per cent (14%) of the participating interest held by Assignor in the Unión
Transitoria de Empresas (“UTE”) Agreement: “YPF S.A. / Pluspetrol / Norcen, Palmar
Largo Unión Transitoria de Empresas” entered into by and between Y.P.F. Sociedad Anónima,
Pluspetrol Sociedad Anónima, Norcen International Ltd., Compañía General de Combustibles
Sociedad Anónima and Dong Won Co. Ltd., for the exploration, development and exploitation
of the “Palmar Largo” Area, Northwest Basin, Provinces of Salta and Formosa, approved by
Decree Nº 2444/92 granted by the National Executive Branch of Argentina, dated December
22, 1992, and published on December 24, 1992, in the Official Gazette.
1.2 All the hydrocarbons, pursuant to Assignor’s participation interest, produced in the
Area after June 1st, 2005, (the “Effective Date”).
1.3 All of Assignor’s right, title and interest in all contracts and contractual rights
insofar as they relate only to the Assigned Interest including without limitation, permits,
surface leases, surface rights, easements, rights-of-way, water and water usage rights,
leases, options, orders, licenses, and all similar rights leased or owned by Assignor, and
oil and gas sales contracts and agreements, purchase, exchange, transportation, gathering
and processing contracts, licenses and agreements, if any.
1.4. All rights, titles and interests in the following Agreement: Palmar Largo UTE
Agreement, entered into by and between Compañía General de Combustibles S.A., Pluspetrol
S.A., Dong Won Corporation, and YPF S.A., dated November 24, 1992.
1.5 All technical information at Assignor’s disposal, including without limitation
geological, geophysical, engineering and production data and records, any rights Assignor
may have to 2D and/or 3D seismic data over the Assigned Interest, logs, maps, and other
technical data related thereto.
1.6 All contract, land, environmental, regulatory, legal, title and lease records mainly
relating to the Assigned Interest.
The Assigned Interest recognizes the existence of a royalty payment obligation with respect to the
Area (the “Royalty Interest”) of 12%. Assignee hereby agrees to receive from Assignor and
to assume as from the execution of this Agreement the obligation to pay the Royalty Interest.
2. PAYMENT OF PURCHASE PRICE
In consideration for the assignment contemplated in Article 1 hereof, Assignee pays to Assignor the
Purchase Price in US Dollars, as follows:
| (a) | On July 15, 2005, 2005, Assignee paid three hundred seventy-four thousand one hundred eighteen and 06/100 US Dollars (US$ 374,118.06), equal to (5.37 %) of the Assignment Price, by means of wire transfer to an escrow account in The Bank of New York, New York (the “Escrow Agent”), which deposit was made in account of the Purchase Price. Such escrow deposit shall be delivered by the Escrow Agent to Assignor in accordance with the provisions of the Escrow Agreement executed between Assignor and Assignee on July 15, 2005. | ||
| (b) | Assignee hereby pays to Assignor the balance of the Purchase Price, six million five hundred ninety-five thousand five hundred forty and 94/100 US Dollars (US$ 6,595,540.94) less any amounts required to be withheld pursuant to the laws of Argentina, by wire transfer of immediately available funds to the following account: SHINHAN BANK 000-00-000000, SWIFT |
CODE XXXXXXXXXXX, ADDRESS:XXXXX XXX MUN MIDDLE MARKET BANKING CENTER. Immediately
after such balance of the Purchase Price paid by Assignee is credited into the bank
account above mentioned, Assignor shall deliver to Assignee the pertinent receipt.
3. REPRESENTATIONS AND WARRANTIES. DISCLAIMER OF WARRANTIES
3.1 Representations and Warranties of Assignor. Assignor represents and warrants that as of
the date of execution of this Agreement:
(a) it is the owner and holder of the Assigned Interest.
(b) it has complied, with respect to the Assigned Interest, with all its obligations under the
Exploration Permits and/or Exploitation Concessions on the Areas, and with the provisions of Law
No. 17319, its regulatory decree and other applicable regulations.
(c) It is a corporation duly formed and organized under the laws of Korea and is properly
registered and authorized to carry on business in Argentina in the manner conducted by it.
(d) It has all requisite capacity, power and authority to execute this Agreement and to
perform the obligations to which it hereby becomes subject. The liability of the Assignor is not
restricted to its assets in Argentina and Assignor represents, warrants and confirms that the
recourse of Assignee against Assignor is not limited to any branch or subdivision of Dong Won
Corporation.
(e) There are no unsatisfied judgments, claims, proceedings, actions, governmental
investigations or lawsuits in existence, contemplated or threatened against or with respect to the
Area or the interest of the Assignor therein or the Assigned Interest, nor is there any
circumstance of which it is aware that will give rise to such a claim, proceeding, action,
governmental investigation or lawsuit
(f) Assignor has no employees or other personnel for which Assignee shall have any liability
or responsibility whatsoever.
(g) It, the operator and the other parties to the Exploration and Exploitation Concession and
UTE are in compliance with such concession and UTE and is not in default of any term thereof or any
law, regulation or agreement that would adversely impact the Area or the Assigned Interest.
(h) All royalties and all property, production, severance, ad valorem and similar taxes and
assessments respecting the Area and the Assigned Interest have been properly and fully paid and
discharged in the manner and at the time prescribed by the regulations applicable thereto.
(i) Except as expressly provided in this Agreement, the Assigned Interest is not subject to
any liens, mortgages, pledges, claims, options, preferential rights of purchase
(other than those contemplated under section 12 of the UTE Agreement), encumbrances,
overriding royalties, net profits interests or other burdens.
(j) The Assigned Interest is not subject either to reduction, by reference to payout of a well
or otherwise, or to change to an interest of any other size or nature whatsoever by virtue of any
right or interest.
(k) The petroleum products sold in respect of the Assigned Interest are not subject to any
prepaid obligations or gas balancing agreement, in respect of which the Assignee would be required
to deliver petroleum products produced from the Areas without receiving full payment therefor.
(l) It has not incurred in any obligation or liability, contingent or otherwise, nor made any
agreement with respect to any broker’s or finder’s fees arising out of or in any way related to the
transaction contemplated by this Agreement.
(m) Except for the Royalty Interest disclosed in the last paragraph of Section 1 hereof,
Assignor is the only legal and beneficial owner and holder of the Assigned Interest.
(n) Between the Effective Date and the date of execution of this Agreement, there has not
been: (i) a sale, lease or other disposition of the Assigned Interest or any part thereof; or (ii)
a mortgage, pledge or grant of a lien or security interest in any of the Assigned Interest, or any
part thereof
(o) The preferential right to acquire the Assigned Interest has either not been exercised by
Assignor’s partners in the Area, or waived by them.
3.2 Assignor shall be liable to Assignee and shall, in addition, indemnify Assignee from and
against all losses, costs, claims, damages, expenses, and liabilities suffered, sustained, paid or
incurred by Assignee which would not have been suffered, sustained, paid or incurred had all of
Assignor’s representations or warranties contained in Section 3.1 above been accurate and truthful.
3.3 Assignor’s Disclaimer of Warranties
3.3.1 Except as expressly provided otherwise herein and detailed in the corresponding
Schedules to this Agreement, the conveyance of the Area contemplated herein shall be AS IS,
WHERE IS. Assignor makes no representations or guaranties whatsoever, express or implied,
in connection with the Area, except for the provisions of Section 3.1 above and expressly
waives any liability as regards the representations or guaranties in connection with any
information or data released or supplied by it, its agents, representatives, employees or
advisors. Assignor expressly waives any liability as regards the condition of movable
property and fixtures which may affect any part of the Areas, including (a) any express or
implied marketability condition; (b) any guaranty of fitness for a particular purpose,
whether express or implied; (c) any guaranty, express or implied, in accordance with forms
or samples of materials; and (d) any claim by the Assignee for damages due to defects,
known or unknown
3.3.2 No later than fifteen (15) days subsequent to the date of execution of this
Agreement, Assignor shall furnish Assignee with all the information and data on the
Assigned Interest in possession of Assignor, including, without limitation, the originals
of all well, geological and geophysical data directly associated with the Assigned
Interest. Assignor shall furnish the information and data described above AS IS WHERE IS
and without making any representation or warranty about the same and any reliance on or
interpretation of any information and data furnished by Assignor shall be at Assignee’s
sole risk and expense.
3.4 Representations and Warranties of Assignee
The Assignee represents and warrants that:
(a) It is a corporation duly formed and organized under the laws of Argentina;
(b) The Assignee has all requisite capacity, power and authority to execute this Agreement and to
perform the obligations to which it hereby becomes subject;
(c) Assignee has inspected the Area and such inspection has included, but not been limited to, the
physical and environmental condition of the Area.
3.5 Assignee shall be liable to Assignor and shall, in addition, indemnify Assignor from and
against all losses, costs, claims, damages, expenses, and liabilities suffered, sustained, paid or
incurred by Assignor which would not have been suffered, sustained, paid or incurred had all of
Assignee’s representations or warranties contained in Section 3.4 above been accurate and truthful.
4. DELIVERY AND CONVEYANCE OF INTEREST
4.1 Delivery and Conveyance of Interest. Execution of notice to the Secretariat of
Energy.
Subject to the balance of the Purchase Price being credited in the account mentioned in Section 2
(b), Assignor hereby delivers, assigns, grants and conveys to Assignee the Assigned Interest and
the Parties hereby subscribe a notice addressed to the Secretariat of Energy (“Secretaría de
Energía”) requesting the granting of the pertinent Administrative Decision (“Decisión
Administrativa”) authorizing the assignment of Assignor’s Interest in the Area in accordance with
the terms of Section 72 et seq. of Law No. 17319 (the “Notice of Request”), substantially
in the form attached hereto as Schedule 4.1.
The Parties also initialize the relevant draft of deed of conveyance in the form also attached
hereto as Schedule 4.1 which the Parties shall file with the Secretariat of Energy jointly with the
Notice of Request.
4.2 Filing of Notice of Request.
As soon as practicable after the execution of this Agreement, Assignee shall file the Notice of
Request with the Secretariat of Energy, and the Parties shall use all reasonable endeavors to
obtain the above mentioned Administrative Decision and shall be obliged to execute such other
public or private documents, do such acts and submit or sign such papers as may be reasonably
necessary to that effect. Any applicable notary fees shall be borne fifty per cent (50%) by each
Party. Irrespective of when the Administrative Decision is obtained, as from the execution of this
Agreement, Assignee shall bear all costs, rights and obligations under and related to the Assigned
Interest and the Assets.
The public deed for the assignment of the Assigned Interest shall be executed within the time-term
provided for by the applicable legislation, to be counted as from publication of the Administrative
Decision or similar resolution approving the assignment, in the Official Gazette; provided however,
the Parties undertake to execute such public deed as soon as possible thereafter. Likewise, the
Parties shall file a copy of the above-mentioned public deed with the Registry of Oil Companies
(“Registro de Empresas Petroleras”) of the Secretariat of Energy, as provided in Secretariat of
Energy Resolution Nº 450/94.
Should the Notice of Request be rejected or the Administrative Decision be still pending by
September 1st, 2007, the Parties shall effect a satisfactory alternative arrangement under which
the intent of this Agreement may be implemented while preserving and maintaining the rights and
obligations accruing to the Parties hereunder.
5. HYDROCARBONS IN THE LINES AND TANKS
Assignor is entitled to its proportional share of the proceeds from the sale of hydrocarbon
production in the tanks, storage facilities and pipelines up to the point of delivery until the
Effective Date. As to hydrocarbons produced and sold after the Effective Date, Assignee shall be
entitled to a credit in an amount equal to the net proceeds from the sale of such hydrocarbon
production.
| 6.TREATMENT OF INCOME AND EXPENSES CORRESPONDING TO THE PERIOD BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE |
6.1 The Parties agree that the aggregate amount from the funds obtained from the sale of the
hydrocarbon production collected by the Assignor with respect to the Area and which correspond to
the period as from the Effective Date to the date of execution of this Agreement (the “Closing
Date”), belong to the Assignee. Also, the Assignee must bear the expenses of any nature whatsoever
incurred by the Assignor on behalf of the Assignee in that regard and during the above-mentioned
period.
6.2 The treatment provided for hereinabove ran from the Effective Date until the Closing Date.
Therefore, the Parties proceed to make the final adjustment of the accounts between them and, to
that extent, calculate all the amounts received and royalties and operating expenses paid from the
Effective Date to the Closing Date on behalf of Assignee.
6.3 Within ninety (90) days following the execution of this Agreement, the Party owing the income
or expenses balance pursuant to the preceding paragraph, pays the other Party the amount of such
balance, by wire transfer of immediately available funds, in U.S. Dollars, in accordance to the
detail and bank accounts to be informed by such Party.
7. INDEMNIFICATION
7.1 Assignor hereby undertakes the obligation to indemnify and hold Assignee harmless, in
proportion to the Assignor’s participating interest in the Area, from and against any liabilities,
losses, damages or obligations whether declared or not at present, known or unknown as of the date
of this Contract, and from any duties, liabilities, losses, damages, costs, expenses (including
attorney’s fees and expenses) and any other action, proceeding, demand or claim whatsoever from a
third party, including the Government, (each one, a “Claim”), which may be suffered by
Assignee, or which may be related to this Agreement for the assignment and transfer of the rights
and interests on the Area, for any event or circumstance the origin or cause of which took place on
a date prior to the Closing Date.
7.2 Assignee hereby undertakes that it shall be responsible for and shall defend, indemnify and
hold Assignor and its affiliates, and their respective directors, officers, shareholders,
employees, successors, assigns and representatives, harmless from any breach of any representation
or warranty made by Assignee herein, and from any duties, liabilities, losses, damages, costs,
expenses (including attorney’s fees and expenses) and any other action, proceeding, demand or claim
whatsoever from a third party, including the Government, (each one, a “Claim”), which may
be brought against, or suffered by Assignor, or which it may sustain, pay or incur, in either case,
by reason of any matter or issue arising out of, resulting from, attributable to or connected with
the Assigned Interest (or any rights or properties hereunder) accruing on or after the Closing
Date.
7.3 Should a Party receive a Claim or be aware of any event that may result in a Claim against it
in respect of which the other Party shall be obligated to indemnify, defend and hold it harmless in
accordance with the provisions of this Agreement, such Party shall promptly notify the other in
writing of any such Claim including particulars of the Claim and of the facts giving rise to it
(“Notice of Claim”).
Upon receipt of a Notice of Claim, the indemnifying Party may assume the defense of said Claim with
counsel selected by the indemnifying Party and reasonably satisfactory to the indemnified Party.
The indemnified Party shall reasonably cooperate with such defense, as requested by the other Party
and may appoint counsel to take part in its defense (these attorneys fees shall be exclusively
borne by such indemnified Party appointing such counsel, but shall be borne by the indemnifying
party if it requests such appointment).
If for any reason the indemnifying Party shall not assume the defense of the claim in due time and
manner, the other Party will be entitled to defend, with all costs to be borne by the indemnifying
Party, such claim through a counsel at its sole selection.
All amounts to be disbursed by the indemnifying Party in favor of the indemnified Party under this
Agreement shall be directly disbursed by the indemnifying Party, so that the
indemnified Party shall not need to make any payment or incur any charge on account of the Claims
received.
7.4 Sole and Exclusive Remedy. The parties agree that the indemnification provided in this
Section shall be the sole and exclusive relief and remedy available to Assignee following the
Closing Date for any Claim as provided for herein.
8. TAXES
Any Stamp Tax that may apply on this Agreement shall be paid by both Parties on a 50/50 basis.
Assignee shall pay for any other applicable taxes required by the appropriate taxing authority to
be paid by virtue of the execution of this Agreement and of the sale and transfer of the Interest
over the Areas.
9. NOTICES
All notices, requests, demands and other communications hereunder shall be in writing and shall be
deemed to have been given if delivered to:
Assignee:
GRAN TIERRA ENERGY ARGENTINA S.A.
Xxx Xxxxxx 000, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn. Xx. Xxxx Xxxxxxxx
Xxx Xxxxxx 000, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn. Xx. Xxxx Xxxxxxxx
Assignor:
XXXX XXXX CORPORATION (SUCURSAL ARGENTINA)
Xx. Xxxxxxx 0000, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn. Xxxx Xxxx Ho
Xx. Xxxxxxx 0000, 0xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx
Attn. Xxxx Xxxx Ho
or to such other address as either party may communicate in writing.
10. ASSIGNMENT
This Agreement or any part hereof may not be assigned by either Party without the prior written
consent of the other party.
11. GOVERNING LAW — ARBITRATION
This Agreement shall be governed by and construed in accordance with the laws of Argentina without
regard to its principles of conflicts of laws otherwise applicable. All disputes arising out of or
in connection with this Agreement, its existence, enforceability, nature, interpretation, scope,
performance or termination shall be finally settled by the
General Arbitration Tribunal of the Buenos Aires Stock Exchange in accordance with the rules and
regulations of the said tribunal that are in force and applicable to the de iure arbitration
(“arbitraje de derecho”), which the Parties hereby declare to know and accept.
12. MISCELLANEOUS
12.1 Except as otherwise provided herein, no modification, amendment or waiver of any provision of
this Agreement will be effective unless such modification, amendment or waiver is approved in
writing by the Parties hereto.
12.2 The headings of sections of this Agreement are for convenience of reference only and shall not
limit or otherwise affect any of the terms or provisions of this Agreement.
12.3 Failure to exercise any right hereunder shall not be considered a waiver of such right or
rights in the future.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be deemed an
original instrument, but all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been signed by each of the parties hereto, all as of the
date above written.
Assignor: |
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| DONG WON CORPORATION (SUCURSAL ARGENTINA) | ||
/s/ Xxxx Xxxx Ho
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By: Xxxx Xxxx Ho |
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Position: Legal Representative |
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Assignee: |
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| GRAN TIERRA ENERGY ARGENTINA S.A. | ||
/s/ Xxxxxx Orunesu
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By: Xxxxxx Orunesu |
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Position: Attorney-in-fact |
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