EXECUTION VERSION
GP PLEDGE
AGREEMENT
This GP PLEDGE AGREEMENT, dated as of January 1,
2009 (as amended, supplemented, amended and restated or otherwise
modified from time to time, this “ Agreement ”),
is made by GTE COLOMBIA HOLDINGS LLC, a limited liability company
organized under the laws of the State of Delaware (Registered No.
4635693) (the “ Pledgor ”), in favor of STANDARD
BANK PLC, in its capacity as administrative agent under the Credit
Agreement (as hereinafter defined) acting for and on behalf of the
Secured Parties (in such capacity, the “ Pledgee
”).
WITNESSETH
:
WHEREAS, the Pledgor is the direct and
beneficial owner of all of the issued and outstanding membership
interests of ARGOSY ENERGY, LLC, a limited liability company
organized under the laws of the State of Delaware (f/k/a Argosy
Energy Corp., a Delaware corporation) (Registered No. 3234977) (the
“ Issuer ”);
WHEREAS, pursuant to that certain Credit
Agreement, dated as of February 22, 2007 (as amended,
amended and restated, supplemented or otherwise modified from time
to time, the “ Credit Agreement ”), among Gran
Tierra Energy Inc. (the “ Borrower ”), the
Issuer, certain of their affiliates, the banks from time to time
party thereto (the “ Banks ”) and the Pledgee,
the Pledgee and the Banks have entered into financing arrangements
pursuant to which the Banks may make loans and provide other
financial accommodations to the Borrower;
WHEREAS, in order to induce the Banks to make
loans and provide other financial accommodations pursuant to the
Credit Agreement, and to induce the Designated Hedge Counterparty
to enter into the Designated Hedging Agreement and for other good
and valuable consideration (the sufficiency of which the Pledgor
hereby acknowledges), the Pledgor has agreed to secure the prompt
payment in full when due of the Obligations by executing and
delivering to the Pledgee this Agreement;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor hereby
agrees as follows:
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DEFINITIONS;
RULES OF INTERPRETATION
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(a)
Definition of Terms Used Herein . Capitalized
terms used but not defined herein shall have the meanings assigned
to them in the Credit Agreement. In addition:
(i)
“ Issuer ” has the
meaning set forth in the recitals hereto.
(ii) “
LLC Agreement ” means the limited liability company
agreement of the Issuer, or such other analogous agreement
governing its operation.
(iii) “
Obligations ” means all amounts from time to time
owing to the Secured Parties by the Obligors under the Credit
Agreement, including Section 6 thereof, this Agreement and any of
the other Loan Documents to which any Obligor is a party, in each
case strictly in accordance with the terms hereof and
thereof.
(iv) “
Pledged Interests ” means all of the membership
interests in the Issuer.
(v) “
Pledged Property ” has the meaning set forth in
Section 2(a) hereto.
(vi) “
UCC ” means the Uniform Commercial Code as from time
to time in effect in the State of New York.
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GRANT OF
SECURITY INTEREST
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(a) As
collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations, the Pledgor
hereby assigns and pledges to the Pledgee, and grants to the
Pledgee for itself and the benefit of the Secured Parties, a
security interest in and Lien upon the following (collectively, the
“ Pledged Property ”):
(i)
the Pledged Interests and all certificates (if
any) at any time representing or evidencing such Pledged
Interests;
(ii) all
of its present and future right to receive payment of money or
other distributions arising out of or in connection with the
Pledged Interests;
(iii) all
of its rights, title and interest in, to and under the LLC
Agreement, including, without limitation, all of its rights, title
and interest as a member to participate in the operation or
management of the Issuer;
(iv) all
proceeds of and to any of the property of the Pledgor described
above, including, without limitation, all causes of action, claims
and warranties now or hereafter held by the Pledgor in respect of
any of the items listed above; and
(v) the
Pledgor’s books and records with respect to any of the
foregoing.
(b) This
Agreement is executed only as security for the Obligations and,
therefore, the execution and delivery of this Agreement shall not
subject the Pledgee or any Secured Party to, or transfer or pass to
the Pledgee or any Secured Party, or in any way affect or modify,
the duties, obligations and liabilities of the Pledgor under the
LLC Agreement or any related agreement, document or instrument or
otherwise. In no event shall the acceptance of this
Agreement by the Pledgee or the Secured Parties or the exercise by
the Pledgee or any Secured Party of any rights hereunder or
assigned hereby, constitute an assumption of any duty, liability or
obligation of the Pledgor to, under or in connection with the LLC
Agreement or any related agreements, documents or instruments or
otherwise.
(c) The
acceptance by the Pledgee and the Secured Parties of this
Agreement, with all of the rights, powers, privileges and authority
so created, shall not at any time or in any event obligate the
Pledgee or any Secured Party to appear in or defend any action or
proceeding relating to the Pledged Property to which it is not a
party, or to take any action hereunder or thereunder, or to expend
any money or incur any expense or perform or discharge any duty,
obligation or liability hereunder or otherwise with respect to the
Pledged Property.
3.
OBLIGATIONS SECURED
The Lien and other interests granted to the
Pledgee for itself and the benefit of the Secured Parties, pursuant
to this Agreement shall secure the prompt performance and payment
in full of any and all of the Obligations.
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Pledgor hereby represents, warrants and
covenants with and to the Pledgee and the Secured Parties the
following as of the date hereof (all of such representations,
warranties and covenants being continuing so long as any of the
Obligations are outstanding):
(a) The
Pledged Interests are duly authorized and validly existing and
constitute the Pledgor’s entire interest in the Issuer and
the Pledgor is the registered owner of such Pledged
Interests.
(b) The
Pledgor is the holder of all of the outstanding membership
interests of the Issuer.
(c) The
Pledged Property pledged by the Pledgor hereunder is directly,
legally and beneficially owned by the Pledgor free and clear of all
claims and Liens of any kind, nature or description, other than
those created pursuant to this Agreement in favor of the Pledgee
(for itself and for the benefit of the Secured Parties) and other
than Permitted Liens.
(d) The
Pledged Property pledged by the Pledgor hereunder is not subject to
any restriction relative to the transfer thereof (other than
applicable law) and the Pledgor has the right to transfer the
Pledged Property free and clear of any Lien other than Permitted
Liens.
(e) The
Pledged Property pledged by the Pledgor hereunder is duly and
validly pledged to the Pledgee, no consent or approval of any
governmental or regulatory authority or of any securities exchange
or the like, nor any consent or approval of any other third party,
was or is necessary to the validity and enforceability of this
Agreement, except as expressly set forth herein (other than
applicable securities laws).
(f)
If the
Pledgor shall become entitled to receive or acquire, or shall
receive any membership interest certificate, or option or right
with respect to the Pledged Interests (including without
limitation, any certificate representing a distribution or exchange
of or in connection with reclassification of the Pledged Interests)
whether as an addition to, in substitution of, or in exchange for
any of the Pledged Property or otherwise, the Pledgor agrees to
accept the same as the Pledgee’s agent, to hold the same in
trust for the Pledgee and to deliver the same forthwith to the
Pledgee or the Pledgee’s agent or bailee in the form
received, with the endorsement(s) of the Pledgor where necessary
and/or appropriate powers and/or assignments duly executed to be
held by the Pledgee or the Pledgee’s agent or bailee subject
to the terms hereof, as further security for the
Obligations.
(g) The
Pledged Interests pledged by the Pledgor hereunder are not and
shall not at any time hereafter be investment property or otherwise
subject to Article 8 of the UCC except as the Pledgee may otherwise
expressly agree in writing. As of the date hereof, there
are no certificates or other written instruments evidencing or
representing the Pledged Interests.
(h) The
Pledgor shall keep full and accurate books and records relating to
the Pledged Property pledged by the Pledgor hereunder and stamp or
otherwise mark such books and records in such manner as the Pledgee
may in good faith require in order to reflect the security
interests granted by this Agreement.
(i)
The Pledgor shall not, without the prior consent of the Pledgee,
directly or indirectly, sell, assign, transfer, or otherwise
dispose of, or grant any option with respect to the Pledged
Property, nor shall the Pledgor create, incur or permit any further
Lien with respect to the Pledged Property other than as permitted
in the Credit Agreement.
(j)
So long as no Event of Default has occurred and is continuing, the
Pledgor shall have the right to exercise all rights with respect to
the Pledged Property, except as expressly prohibited herein or in
the other Loan Documents, and to receive any distributions payable
in respect of the Pledged Property (but subject to terms of the
Credit Agreement with respect thereto).
(k) The
Pledgor has delivered to the Pledgee a true, correct and complete
copy of the LLC Agreement.
(l)
Other than as permitted in the Credit Agreement, the Pledgor shall
not permit the Issuer, directly or indirectly, to (i) issue,
sell, grant, assign, transfer or otherwise dispose of, any
additional membership interests of the Issuer or any option or
warrant with respect to, or other right or security convertible
into, any additional membership interests, now or hereafter
authorized, unless all such additional membership interests,
options, warrants, rights or other such securities are made and
shall remain part of the Pledged Property subject to the pledge and
security interest granted herein, (ii) take any action to
withdraw the authority of or to limit or restrict the authority of
the Issuer’s members to deal and contract with the Pledgee
and to bind and obligate the Issuer, or (iii) pay any interim
distribution in cash or other assets to any member, except as
permitted in the Credit Agreement.
(m) [Intentionally
Omitted]
(n) The
Pledgor shall not, and shall not permit the Issuer, directly or
indirectly, to, amend, modify or supplement any of the provisions
of the LLC Agreement or the Issuer’s certificate of formation
without the prior written consent of the Pledgee if any such
amendment, modification or supplement could reasonably be expected
to affect any rights of the Pledgee or any Secured Party hereunder
or under any of the other Loan Documents.
(o) The
Pledgor shall furnish, or cause to be furnished, to the Pledgee
such information concerning the Issuer and the Pledged Property as
the Pledgee may from time to time reasonably request.
(p) The
Pledgee may notify the Issuer or the appropriate transfer agent of
the Pledged Interests to register on the books of the Issuer the
security interest and pledge granted herein and honor the rights of
the Pledgee and the Secured Parties with respect
thereto.
(q) The
Pledgor shall not change its name or its jurisdiction of
organization from that existing as of the date of this Agreement,
except upon 15 Business Days’ prior written notice to the
Pledgee and delivery to the Pledgee of copies of all filed
additional financing statements, and other documents (in each case,
properly executed) reasonably requested by the Pledgee to maintain
the validity, perfection and priority of the security interests
provided for herein.
(r)
The Pledgor waives to the extent permissible by applicable law, its
rights under Section 9-207 of the UCC. The Pledgor
agrees that the Pledged Property, other collateral, or any other
guarantor or endorser may be released, substituted or added with
respect to the Obligations, in whole or in part, without releasing
or otherwise affecting the liability of the Pledgor, the pledge and
security interests granted hereunder, or this
Agreement. The Pledgee, for and on behalf of itself and
the Secured Parties, is entitled to all of the benefits of a
secured party set forth in Section 9-207 of the UCC.
5.
[Intentionally Omitted]
6.
[Intentionally Omitted]
7.
RIGHTS AND REMEDIES
At any time after an Event of Default exists or
has occurred and is continuing, in addition to all other rights and
remedies of the Pledgee and the Secured Parties, whether provided
under this Agreement, the Credit Agreement, the other Loan
Documents, applicable law or otherwise, the Pledgee shall have the
following rights and remedies which may be exercised without notice
to, or consent by, the Pledgor except as such notice or consent is
expressly provided for hereunder or such notices which the Pledgor
may not waive in accordance with applicable law:
(a) The
Pledgee, at its option, shall be empowered to exercise its
continuing right to instruct the Issuer in writing (or the
appropriate transfer agent of the Pledged Interests) to register
any or all of the Pledged Interests in the name of the Pledgee or
in the name of the Pledgee’s nominee (including, without
limitation, any Secured Party) and the Pledgee may complete, in any
manner the Pledgee may deem expedient, any assignments or other
documents heretofore or hereafter executed in blank by the Secured
Parties and delivered to the Pledgee. After said written
instruction, and without further notice, the Pledgee shall be
admitted as a member of the Issuer without any further approval of
the Pledgor or the Issuer and without any requirement for the
Pledgee to comply with any of the conditions or other requirements
of the LLC Agreement and without conferring upon any member of the
Issuer any option (whether under the LLC Agreement or otherwise) to
acquire the membership interests so transferred to the Pledgee and
shall have the exclusive right to exercise all voting and limited
liability company rights with respect to the Pledged Property, and
exercise any and all rights of conversion, redemption, exchange,
subscription or any other rights, privileges, or options pertaining
to the Pledged Property as if the Pledgee were the absolute owner
thereof, including, without limitation, the right to exchange, in
its discretion, any and all of the Pledged Property upon any
merger, consolidation, reorganization, recapitalization or other
readjustment with respect thereto. Upon the exercise of
any such rights, privileges or options by the Pledgee, the Pledgee
shall have the right to deposit and deliver any and all of the
Pledged Property to any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions
as the Pledgee may determine, all without liability, except to
account for property actually received by the
Pledgee. However, the Pledgee shall have no duty to
exercise any of the aforesaid rights, privileges or options (all of
which are exercisable in the sole discretion of the Pledgee) and
shall not be responsible for any failure to do so or delay in doing
so.
(b) The
Pledgee may, in its good faith discretion (i) collect,
foreclose, receive, appropriate, setoff and realize upon any and
all Pledged Property, (ii) sell, lease, transfer, assign,
deliver or otherwise dispose of any and all Pledged Property
(including entering into contracts with respect thereto, public or
private sales at any exchange, broker’s board, at any office
of the Pledgee or elsewhere) at such prices or terms as the Pledgee
may deem reasonable, for cash, upon credit or for future delivery,
with the Pledgee having the right to purchase the whole or any part
of the Pledged Property at any such public sale, all of the
foregoing being free from any right or equity of redemption of the
Pledgor, which right or equity of redemption is hereby expressly
waived and released by the Pledgor (to the extent permitted by
applicable law). If notice of disposition of Pledged
Property is required by law, ten (10) days prior notice by the
Pledgee to the Pledgor designating the time and place of any public
sale or the time after which any private sale or other intended
disposition of Pledged Property is to be made, shall be deemed to
be reasonable notice thereof and any other notice. The
Pledgee shall apply the cash proceeds of Pledged Property actually
received by the Pledgee from any sale, lease, foreclosure or other
disposition of the Pledged Property to payment of the Obligations
then due, in whole or in part and in accordance with the terms of
Section 10 of the Credit Agreement, and thereafter may hold such
proceeds as cash collateral for the Obligations not then
due. The Pledgor shall remain liable to the Pledgee and
the Secured Parties for the payment of any deficiency with interest
at the highest rate provided for in the Credit Agreement and agrees
to indemnify the Pledgee and the Secured Parties from all costs and
expenses of
