1. There is no legal basis for the panel’s issuance of what would be, in effect, a preliminary mandatory injunction because of, among other reasons, the lack of irreparable harm, the inability to show a likelihood of success on the merits and Ecopetrol’s inability to demonstrate a balance of the equities tipping in its favor;
2. SPA Section 8.4, properly construed, does not apply to the facts upon which Ecopetrol’s application is based; nor does it, in any event, abrogate the requirement of irreparable harm;
3. Even assuming arguendo a basis for the grant of the requested relief, Offshore’s obligation to reimburse Savia (not Ecopetrol) was excused by Ecopetrol’s prior breach of the SPA;
4. Ecopetrol’s application is one intended to provide security for any Award which might eventually be rendered in its favor, and approximately $125 million still resides in an escrow account to satisfy any of the Seller’s obligations if it eventually be determined that monies are owed to Ecopetrol.
(a) Seller shall indemnify and defend the Purchaser Indemnitees [defined in Section 8.2(a) as, among other entities, "Purchaser and their Affiliates", "Affiliates being defined in Exhibit A to the SPA as including companies such as Savia] and hold the Purchaser Indemnitees harmless from and against (1) all liability for Taxes of any PT Group Member... attributable to (A) any Pre-Determination Date Tax Period,...
(d) Any indemnity payment required to be made pursuant to this Section 7.4 will be paid within thirty (30) days after an Indemnified Party makes written demand upon an Indemnified Party, but in no case earlier than five (5) Business Days prior to the date on which the relevant Taxes... are required to be paid... to the relevant Governmental Authority. If the Taxes that are contested must be paid under applicable Law prior to or upon commencement of a contest proceeding, Seller shall pay such Taxes to the applicable Governmental Authority prior to or upon commencement of such proceeding.
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