Warranties and Undertaking. 4.1 The Mortgagor represents and warrants to the Mortgagee and undertakes that: (a) it is the absolute legal and beneficial owner of all of the Original Securities free of all Security Interests, encumbrances, trusts, equities, proxies and claims whatsoever (save under this Deed of Mortgage or the other Financing Documents) and that all of the Original Securities are fully paid up and are non-assessable; (b) except as limited by the Financing Documents, Mortgagor has the full legal and unlimited right to vote the Original Securities in its sole discretion; (c) the Original Securities constitute 100% of the issued and outstanding equity capital of the Company and are all currently registered in the name of the Mortgagor (subject to the registration of the Original Securities in the name of the Mortgagee as Collateral Agent concurrently with the execution and delivery of this Deed of Mortgage); (d) the Mortgagor and the Company are duly incorporated and in good standing under the respective laws of the jurisdiction in which each of them is incorporated and the Mortgagor has and will at all times have the necessary power to enter into and perform its obligations under this Deed of Mortgage and has duly authorized the execution and delivery of this Deed of Mortgage; (e) the Company is an exempted company under the laws of the Cayman Islands and neither this Deed of Mortgage or the transfer of the Original Securities to the Mortgagee is subject to any stamp or other tax under the laws of the Cayman Islands and this Deed of Mortgage is capable of being enforced without being subject to any stamp or other tax under the laws of the Cayman Islands; (f) pursuant to amendments to the articles of association within 45 days after the date of this Agreement, the Company will not be permitted to issue any equity capital other than the Original Securities; (g) the Company has no contractual or other business relationship with any Inactive Subsidiary; (h) No Inactive Subsidiary has any operations, assets or liabilities, direct, indirect or contingent; SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 6 18 (i) the Mortgagor holds no rights or Security Interests with respect to present or future revenues and assets, tangible or intangible, relating to the exploration, development, production, transportation and sale of petroleum in and from the Republic of Colombia, directly, by assignment, or otherwise, except as a shareholder of companies whose shares are pledged to Mortgagee pursuant to the Financing Documents; (j) this Deed of Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms; (k) the execution, delivery, observance and performance by the Mortgagor of this Deed of Mortgage will not require the Mortgagor to obtain any licenses, consents or approvals and will not result in any violation to the best of the Mortgagor's knowledge, of any law, statute, ordinance, rule or regulation applicable to it or any other agreements; (l) the Company is not a party or otherwise bound to any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement; (m) it has obtained all the necessary authorizations and consents to enable it to enter into this Mortgage and the necessary authorizations and consents will remain in full force and effect at all times during the existence of the security constituted by this Deed of Mortgage; (n) the execution, delivery, observance and performance by the Mortgagor of the Deed of Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the Mortgagor's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the Company; (o) the Mortgagor has fully disclosed in writing to the Mortgagee all facts relating to the Mortgagor and the Company which the Mortgagor knows or should reasonably know and which are material for disclosure to the Mortgagee in the context of the Financing Documents; and (p) no agreement to which the Mortgagor or the Company or its Colombian branch is a party, or law, decree or regulation to which either is subject, including without limitation any agreement with Empresa Colombiana de Petroleos or imposition by the Ministro de Minas y Energia de Colombia or any other instrumentality of the Republic of Colombia requires the consent of any such person to the execution, delivery or performance of this Deed of Mortgage and the other Financing Documents and each obligation and covenant contained herein and therein. SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 4.2 The Mortgagor undertakes that, for so long as any Secured Amounts remain outstanding: (a) the Mortgagor shall pay to the Mortgagee, upon demand, the amount of all reasonable expenses which the Mortgagee may incur in, about or with a view to perfecting or enforcing this security or otherwise in connection with this security; (b) the Mortgagor shall promptly pay (and shall indemnify the Mortgagee on demand against) all calls, installments and other payments which may be made or become due in respect of the Mortgaged Property and so that, in the event of default by the Mortgagor, the Mortgagee may do so on behalf of the Mortgagor and clause 4.2(a) shall apply accordingly; (c) to the extent any Mortgaged Property is at any time not vested in the Mortgagee or its nominee as Collateral Agent the Mortgagor shall forthwith and from time to time deposit with the Mortgagee all certificates and other documents of title relating to the Mortgaged Property and signed share transfer forms; (d) the Mortgagor will maintain the Company as an exempted company under the laws of the Cayman Islands so that the transactions or enforcement actions contemplated hereunder will be capable of being completed without incurrence of any stamp or other tax under the laws of the Cayman Islands; (e) the Mortgagor will not permit the Company to enter into or become bound by any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement; (f) the Mortgagor will not permit any Inactive Subsidiary to conduct operations or own any asset or incur any liability, direct, indirect or contingent; (g) Mortgagor will not permit the Company to engage in any transaction, contractual or otherwise, with any affiliate of Mortgagor except with Mortgagor and Active Subsidiaries and as may otherwise be permitted by the Financing Documents; provided however, that in no event shall the Company engage in any transaction, contractual or otherwise, with an Inactive Subsidiary; (h) the Mortgagor shall deliver to the Mortgagee undated letters of resignation executed by all persons now or hereafter serving as Directors of the Company from time to time, which letters the Mortgagee shall be entitled SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES
Appears in 1 contract
Samples: Note Purchase and Loan Agreement (Seven Seas Petroleum Inc)
Warranties and Undertaking. 4.1 The Mortgagor represents and warrants to the Mortgagee and undertakes that:
(a) it is the absolute legal and beneficial owner of all of the Original Securities free of all Security Interests, encumbrances, trusts, equities, proxies and claims whatsoever (save under this Deed of Mortgage or the other Financing Documents) and that all of the Original Securities are fully paid up and are non-assessable;
(b) except as limited by the Financing Documents, Mortgagor has the full legal and unlimited right to vote the Original Securities in its sole discretion;
(c) the Original Securities of each of the Companies constitute 100% of the issued and outstanding equity capital of each of the Company Companies and are all currently registered in the name of the Mortgagor (subject to the registration of the Original Securities in the name of the Mortgagee as Collateral Agent concurrently with the execution and delivery of this Deed of Mortgage);
(d) each of the Mortgagor and the Company Companies are duly incorporated and in good standing under the respective laws of the jurisdiction in which each of them is incorporated and the Mortgagor has and will at all times have the necessary power to enter into and perform its obligations under this Deed of Mortgage and has duly authorized the execution and delivery of this Deed of Mortgage;
(e) the Company is an exempted company under the laws of the Cayman Islands and neither this Deed of Mortgage or the transfer of the Original Securities to the Mortgagee is subject to any stamp or other tax under the laws of the Cayman Islands or British Colombia, and this Deed of Mortgage is capable of being enforced without being subject to any stamp or other tax under the laws of the Cayman IslandsIslands or British Colombia;
(f) pursuant to amendments to the articles of association within 45 days after the date of this Agreement, the Company will not be permitted to issue any equity capital other than the Original Securities;
(g) the Company has Companies have no contractual or other business relationship with any Inactive Subsidiary;
(hg) No Inactive Subsidiary has any operations, assets or liabilities, direct, indirect or contingent; SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 6 18;
(ih) the Mortgagor holds no rights or Security Interests with respect to present or future revenues and assets, tangible or intangible, relating to the exploration, development, production, transportation and sale of petroleum in and from the Republic of Colombia, directly, by assignment, or otherwise, except as a shareholder of companies whose shares are pledged to Mortgagee pursuant to the Financing Documents;
(ji) this Deed of Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms;
(kj) the execution, delivery, observance and performance by the Mortgagor of this Deed of Mortgage will not require the Mortgagor to obtain any licenses, consents or approvals and will not result in any violation to the best of the Mortgagor's knowledge, of any law, statute, ordinance, rule or regulation applicable to it or any other agreements;
(lk) the Company is Companies are not a party or otherwise bound to any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company Companies upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(ml) it has obtained all the necessary authorizations and consents to enable it to enter into this Mortgage and the necessary authorizations and consents will remain in full force and effect at all times during the existence of the security constituted by this Deed of Mortgage;
(nm) the execution, delivery, observance and performance by the Mortgagor of the Deed of Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the Mortgagor's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the CompanyCompanies;
(on) the Mortgagor has fully disclosed in writing to the Mortgagee all facts relating to the Mortgagor and the Company Companies which the Mortgagor knows or should reasonably know and which are material for disclosure to the Mortgagee in the context of the Financing Documents; and
(po) no agreement to which the Mortgagor or the Company or its Colombian branch is Companies are a party, or law, decree or regulation to which either is subject, including without limitation any agreement with Empresa Colombiana de Petroleos or imposition by the Ministro de Minas y Energia de Colombia or any other instrumentality of the Republic of Colombia subject requires the consent of any such person to the execution, delivery or performance of this Deed of Mortgage and the other Financing Documents and each obligation and covenant contained herein and therein. SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES.
4.2 The Mortgagor undertakes that, for so long as any Secured Amounts remain outstanding:
(a) the Mortgagor shall pay to the Mortgagee, upon demand, the amount of all reasonable expenses which the Mortgagee may incur in, about or with a view to perfecting or enforcing this security or otherwise in connection with this security;
(b) the Mortgagor shall promptly pay (and shall indemnify the Mortgagee on demand against) all calls, installments and other payments which may be made or become due in respect of the Mortgaged Property and so that, in the event of default by the Mortgagor, the Mortgagee may do so on behalf of the Mortgagor and clause 4.2(a) shall apply accordingly;
(c) to the extent any Mortgaged Property is at any time not vested in the Mortgagee or its nominee as Collateral Agent the Mortgagor shall forthwith and from time to time deposit with the Mortgagee all certificates and other documents of title relating to the Mortgaged Property and signed share transfer forms;
(d) the Mortgagor will maintain the Company as an exempted company Companies in good standing under the laws of their respective jurisdictions and will not do anything that would cause the Cayman Islands so that the completion of transactions or enforcement actions contemplated hereunder will be capable of being completed without incurrence of to incur any stamp or other tax under the laws of the Cayman IslandsIslands or British Colombia;
(e) the Mortgagor will not permit the Company to enter into or become bound by any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(f) the Mortgagor will not permit any Inactive Subsidiary to conduct operations or own any asset or incur any liability, direct, indirect or contingent;
(g) Mortgagor will not permit the Company to engage in any transaction, contractual or otherwise, with any affiliate of Mortgagor except with Mortgagor and Active Subsidiaries and as may otherwise be permitted by the Financing Documents; provided however, that in no event shall the Company engage in any transaction, contractual or otherwise, with an Inactive Subsidiary;
(h) the Mortgagor shall deliver to the Mortgagee undated letters of resignation executed by all persons now or hereafter serving as Directors of the Company Companies from time to time, which letters the Mortgagee shall be entitled SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARESto date and cause to be given immediate effect as of the date of an Enforcement Notice;
(i) the Mortgagor shall forthwith sign, seal, deliver and complete all transfers, renunciations, proxies (including irrevocable proxies if the Mortgagee so requests) mandates, assignments, deeds and documents and do all acts and things which the Mortgagee may, in its absolute discretion, at any time and from time to time specify for enabling or assisting the Mortgagee:
(i) to perfect or improve its title to and security over the Mortgaged Property including, without limitation, obtaining such approvals or consents to the rights and remedies granted to the Mortgagee herein as the Mortgagee requests in the Mortgagee's sole discretion;
(ii) to vest the Mortgaged Property (including without limitation the registration thereof in the applicable share registry) in the Mortgagee or its nominee or nominees as Collateral Agent as of the date of execution of this Deed of Mortgage;
(iii) to exercise (or enable its nominee or nominees to exercise) any rights or powers attaching to the Mortgaged Property;
(iv) after the service of an Enforcement Notice to sell or dispose of the Mortgaged Property; or
(v) otherwise to enforce any of the rights of the Mortgagee under or in connection with this Deed of Mortgage;
(j) the Mortgagor shall not (without the written consent of the Mortgagee):
(i) create or permit to exist over all or part of the Mortgaged Property (or any interest therein) any Security Interest (other than created or expressly permitted to be created under this Deed of Mortgage or under other Financing Documents) whether ranking prior to, pari passu with or behind the security contained in this Deed of Mortgage;
(ii) sell, transfer or otherwise dispose of the Mortgaged Property or any interest therein or attempt or agree to so dispose;
(iii) permit any person other than the Mortgagee or its nominee to be registered as or become the holder of the Mortgaged Property as Collateral Agent; or
(iv) vote in favour of a resolution or amend, modify or change the certificate of incorporation, memorandum or articles of incorporation of either of the Companies or authorize the issuance by any of the Companies of any shares or any other equity security.
(v) except as otherwise permitted by the Financing Documents permit the Companies to transfer, assign, dispose of or encumber any rights or interests of the Companies, direct or indirect, with respect to petroleum exploration, development, production, transportation, sale or other disposition or with respect to any association or other contract under which the Companies have such rights or interests;
(vi) permit the Companies to grant any Security Interest in, or otherwise encumber, any of its assets, tangible or intangible, except as may be expressly permitted by the Financing Documents;
(vii) permit the Companies to make any distribution or payment to or for the benefit of Mortgagor, whether directly or otherwise, if the effect of that distribution or payment is to render the Companies insolvent or unable to pay its obligations as they mature; or
(viii) take any other action that would have as its effect a breach of a Financing Document.
(k) to the extent received by the Mortgagor, it shall forward to the Mortgagee all notices, reports, accounts and other documents relating to the Mortgaged Property or which are sent to the holders of any of the Mortgaged Property as soon as they are received;
(l) no further shares or equity securities of any kind in the Companies (or any options or other rights with respect thereto) will be issued and the authorized shares shall at no time exceed the issued shares;
(m) at any time after the service of an Enforcement Notice, it shall exercise all voting and other rights and powers which may at any time be exercisable by the holder of the Mortgaged Property as the Mortgagee may in its absolute discretion direct, it being understood that the Mortgagee has reserved the right to exercise all such voting rights directly for any proper purpose, including without limitation the immediate removal of Directors of the Companies and their replacement;
(n) the Mortgagor shall not take or accept any Security Interest from the Companies or, in relation to the Secured Amounts, from any third party, without first obtaining the Mortgagee's written consent or permit any Security Interest to be granted by the Companies to any third party, except as may be expressly permitted by the Financing Documents;
(o) the Mortgagor shall not prove in a liquidation or winding up of the Companies in competition with the Mortgagee for any amount whatsoever owing to the Mortgagee by the Mortgagor on any account whatsoever; and
(p) the Mortgagor shall not claim payment whether directly or by set-off, lien, counterclaim or otherwise of any amount which may be or has become due to the Mortgagor by the Companies.
Appears in 1 contract
Warranties and Undertaking. 4.1 The Mortgagor represents and warrants to the Mortgagee and undertakes that:
(a) it is the absolute legal and beneficial owner of all of the Original Securities free of all Security Interests, encumbrances, trusts, equities, proxies and claims whatsoever (save under this Deed of Mortgage or the other Financing Documents) and that all of the Original Securities are fully paid up and are non-assessable;
(b) except as limited by the Financing Documents, Mortgagor has the full legal and unlimited right to vote the Original Securities in its sole discretion;
(c) the Original Securities constitute 100% of the issued and outstanding equity capital of the Company and are all currently registered in the name of the Mortgagor (subject to the registration of the Original Securities in the name of the Mortgagee as Collateral Agent concurrently with the execution and delivery of this Deed of Mortgage);
(d) the Mortgagor and the Company are duly incorporated and in good standing under the respective laws of the jurisdiction in which each of them is incorporated and the Mortgagor has and will at all times have the necessary power to enter into and perform its obligations under this Deed of Mortgage and has duly authorized the execution and delivery of this Deed of Mortgage;
(e) the Company is an exempted company under the laws of the Cayman Islands and neither this Deed of Mortgage or the transfer of the Original Securities to the Mortgagee is subject to any stamp or other tax under the laws of the Cayman Islands and this Deed of Mortgage is capable of being enforced without being subject to any stamp or other tax under the laws of the Cayman Islands;
(f) pursuant to amendments to the articles of association within 45 days after the date of this Agreement, the Company will not be permitted to issue any equity capital other than the Original Securities;
(g) the Company has no contractual or other business relationship with any Inactive Subsidiary;
(h) No Inactive Subsidiary has any operations, assets or liabilities, direct, indirect or contingent; SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 6 18;
(i) the Mortgagor holds no rights or Security Interests with respect to present or future revenues and assets, tangible or intangible, relating to the exploration, development, production, transportation and sale of petroleum in and from the Republic of Colombia, directly, by assignment, or otherwise, except as a shareholder of companies whose shares are pledged to Mortgagee pursuant to the Financing Documents;
(j) this Deed of Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms;
(k) the execution, delivery, observance and performance by the Mortgagor of this Deed of Mortgage will not require the Mortgagor to obtain any licenses, consents or approvals and will not result in any violation to the best of the Mortgagor's knowledge, of any law, statute, ordinance, rule or regulation applicable to it or any other agreements;
(l) the Company is not a party or otherwise bound to any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(m) it has obtained all the necessary authorizations and consents to enable it to enter into this Mortgage and the necessary authorizations and consents will remain in full force and effect at all times during the existence of the security constituted by this Deed of Mortgage;
(n) the execution, delivery, observance and performance by the Mortgagor of the Deed of Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the Mortgagor's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the Company;
(o) the Mortgagor has fully disclosed in writing to the Mortgagee all facts relating to the Mortgagor and the Company which the Mortgagor knows or should reasonably know and which are material for disclosure to the Mortgagee in the context of the Financing Documents; and
(p) no agreement to which the Mortgagor or the Company or its Colombian branch is a party, or law, decree or regulation to which either is subject, including without limitation any agreement with Empresa Colombiana de Petroleos or imposition by the Ministro de Minas y Energia de Colombia or any other instrumentality of the Republic of Colombia requires the consent of any such person to the execution, delivery or performance of this Deed of Mortgage and the other Financing Documents and each obligation and covenant contained herein and therein. SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES
4.2 The Mortgagor undertakes that, for so long as any Secured Amounts remain outstanding:
(a) the Mortgagor shall pay to the Mortgagee, upon demand, the amount of all reasonable expenses which the Mortgagee may incur in, about or with a view to perfecting or enforcing this security or otherwise in connection with this security;
(b) the Mortgagor shall promptly pay (and shall indemnify the Mortgagee on demand against) all calls, installments and other payments which may be made or become due in respect of the Mortgaged Property and so that, in the event of default by the Mortgagor, the Mortgagee may do so on behalf of the Mortgagor and clause 4.2(a) shall apply accordingly;
(c) to the extent any Mortgaged Property is at any time not vested in the Mortgagee or its nominee as Collateral Agent the Mortgagor shall forthwith and from time to time deposit with the Mortgagee all certificates and other documents of title relating to the Mortgaged Property and signed share transfer forms;
(d) the Mortgagor will maintain the Company as an exempted company under the laws of the Cayman Islands so that the transactions or enforcement actions contemplated hereunder will be capable of being completed without incurrence of any stamp or other tax under the laws of the Cayman Islands;
(e) the Mortgagor will not permit the Company to enter into or become bound by any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(f) the Mortgagor will not permit any Inactive Subsidiary to conduct operations or own any asset or incur any liability, direct, indirect or contingent;
(g) Mortgagor will not permit the Company to engage in any transaction, contractual or otherwise, with any affiliate of Mortgagor except with Mortgagor and Active Subsidiaries and as may otherwise be permitted by the Financing Documents; provided however, that in no event shall the Company engage in any transaction, contractual or otherwise, with an Inactive Subsidiary;
(h) the Mortgagor shall deliver to the Mortgagee undated letters of resignation executed by all persons now or hereafter serving as Directors of the Company from time to time, which letters the Mortgagee shall be entitled SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARESor
Appears in 1 contract
Warranties and Undertaking. 4.1 7.1 The Mortgagor represents and Seller hereby warrants to the Mortgagee Buyer that the matters set forth below are true, accurate and undertakes thatnot misleading as of the date of this Agreement and upon Completion remains to be true, accurate and not misleading:
(a) it 7.1.1 When executed and delivered by both Parties, the Agreement constitutes valid and binding obligation of the Seller;
7.1.2 The Seller is duly organized, validly existing and in good standing under, and by virtue of, the laws of the place of its incorporation and has the legal right to own its properties and assets and to carry on its business as now conducted and as presently proposed to be conducted;
7.1.3 The Seller has all the power to enter into and executed this Agreement and other agreement anticipated to be completed and the transaction contemplated by this Agreement, and to perform its obligations under this Agreement;
7.1.4 The Seller has the right to dispose of the Target and is the absolute exclusive legal and beneficial owner of all the Target, and has the absolute right to sell the Target;
7.1.5 The execution of this Agreement or to comply with the Original Securities free of all Security Interests, encumbrances, trusts, equities, proxies and claims whatsoever (save obligation under this Deed of Mortgage or the other Financing Documents) and that all of the Original Securities are fully paid up and are non-assessable;
(b) except as limited by the Financing Documents, Mortgagor has the full legal and unlimited right to vote the Original Securities in its sole discretion;
(c) the Original Securities constitute 100% of the issued and outstanding equity capital of the Company and are all currently registered in the name of the Mortgagor (subject to the registration of the Original Securities in the name of the Mortgagee as Collateral Agent concurrently with the execution and delivery of this Deed of Mortgage);
(d) the Mortgagor and the Company are duly incorporated and in good standing under the respective laws of the jurisdiction in which each of them is incorporated and the Mortgagor has and will at all times have the necessary power to enter into and perform its obligations under this Deed of Mortgage and has duly authorized the execution and delivery of this Deed of Mortgage;
(e) the Company is an exempted company under the laws of the Cayman Islands and neither this Deed of Mortgage or the transfer of the Original Securities to the Mortgagee is subject to any stamp or other tax under the laws of the Cayman Islands and this Deed of Mortgage is capable of being enforced without being subject to any stamp or other tax under the laws of the Cayman Islands;
(f) pursuant to amendments to the articles of association within 45 days after the date of this Agreement, the Company will not be permitted to issue any equity capital other than the Original Securities;
(g) the Company has no contractual or other business relationship with any Inactive Subsidiary;
(h) No Inactive Subsidiary has any operations, assets or liabilities, direct, indirect or contingent; SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 6 18
(i) the Mortgagor holds no rights or Security Interests with respect to present or future revenues and assets, tangible or intangible, relating to the exploration, development, production, transportation and sale of petroleum in and from the Republic of Colombia, directly, by assignment, or otherwise, except as a shareholder of companies whose shares are pledged to Mortgagee pursuant to the Financing Documents;
(j) this Deed of Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms;
(k) the execution, delivery, observance and performance by the Mortgagor of this Deed of Mortgage will not require the Mortgagor to obtain any licenses, consents or approvals and Agreement will not result in any violation to the best violation, breach of the Mortgagor's knowledge, default of any lawterm or provision of any mortgage, statuteindenture, ordinancecontract to which the Seller is a party of by which it may be bound, or of any provision of any judgment, decree, order, statue, rule or regulation applicable to it or binding upon it;
7.2 The Buyer hereby warrants to the Seller that the matters set forth below are true, accurate and not misleading as of the date of this Agreement and upon Completion remains to be true, accurate and not misleading:
7.2.1 When executed and delivered by both Parties, the Agreement constitutes valid and binding obligation of the Buyer;
7.2.2 The Buyer is duly organized, validly existing and in good standing under, and by virtue of, the laws of the place of its incorporation or established and has the legal right to own its properties and assets and to carry on its business as now conducted and as presently proposed to be conducted;
7.2.3 The Buyer has all the power to enter into and executed this Agreement and other agreement anticipated to be completed and the transaction contemplated by this Agreement, and to perform its obligations under this Agreement; and
7.2.4 Save and except the representations set out in this Agreement, the Seller has not given any other agreements;
representations and warranties to the Buyer, and the Buyer has not relied on any other representations and warranties given by the Seller (lwhether express or implied) the Company is not as a party or otherwise bound to any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(m) it has obtained all the necessary authorizations and consents to enable it reliance to enter into this Mortgage and the necessary authorizations and consents will remain in full force and effect at all times during the existence of the security constituted by this Deed of Mortgage;
(n) the execution, delivery, observance and performance by the Mortgagor of the Deed of Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the Mortgagor's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the Company;
(o) the Mortgagor has fully disclosed in writing to the Mortgagee all facts relating to the Mortgagor and the Company which the Mortgagor knows or should reasonably know and which are material for disclosure to the Mortgagee in the context of the Financing Documents; and
(p) no agreement to which the Mortgagor or the Company or its Colombian branch is a party, or law, decree or regulation to which either is subject, including without limitation any agreement with Empresa Colombiana de Petroleos or imposition by the Ministro de Minas y Energia de Colombia or any other instrumentality of the Republic of Colombia requires the consent of any such person to the execution, delivery or performance of this Deed of Mortgage and the other Financing Documents and each obligation and covenant contained herein and therein. SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES
4.2 The Mortgagor undertakes that, for so long as any Secured Amounts remain outstanding:
(a) the Mortgagor shall pay to the Mortgagee, upon demand, the amount of all reasonable expenses which the Mortgagee may incur in, about or with a view to perfecting or enforcing this security or otherwise in connection with this security;
(b) the Mortgagor shall promptly pay (and shall indemnify the Mortgagee on demand against) all calls, installments and other payments which may be made or become due in respect of the Mortgaged Property and so that, in the event of default by the Mortgagor, the Mortgagee may do so on behalf of the Mortgagor and clause 4.2(a) shall apply accordingly;
(c) to the extent any Mortgaged Property is at any time not vested in the Mortgagee or its nominee as Collateral Agent the Mortgagor shall forthwith and from time to time deposit with the Mortgagee all certificates and other documents of title relating to the Mortgaged Property and signed share transfer forms;
(d) the Mortgagor will maintain the Company as an exempted company under the laws of the Cayman Islands so that the transactions or enforcement actions contemplated hereunder will be capable of being completed without incurrence of any stamp or other tax under the laws of the Cayman Islands;
(e) the Mortgagor will not permit the Company to enter into or become bound by any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(f) the Mortgagor will not permit any Inactive Subsidiary to conduct operations or own any asset or incur any liability, direct, indirect or contingent;
(g) Mortgagor will not permit the Company to engage in any transaction, contractual or otherwise, with any affiliate of Mortgagor except with Mortgagor and Active Subsidiaries and as may otherwise be permitted by the Financing Documents; provided however, that in no event shall the Company engage in any transaction, contractual or otherwise, with an Inactive Subsidiary;
(h) the Mortgagor shall deliver to the Mortgagee undated letters of resignation executed by all persons now or hereafter serving as Directors of the Company from time to time, which letters the Mortgagee shall be entitled SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARESAgreement.
Appears in 1 contract
Warranties and Undertaking. 4.1 The Mortgagor represents and warrants to the Mortgagee and undertakes that:
(a) it is the absolute legal and beneficial owner of all of the Original Securities free of all Security Interests, encumbrances, trusts, equities, proxies and claims whatsoever (save under this Deed of Mortgage or the other Financing Documents) and that all of the Original Securities are fully paid up and are non-assessable;
(b) except as limited by the Financing Documents, Mortgagor has the full legal and unlimited right to vote the Original Securities in its sole discretion;
(c) the Original Securities of each of the Companies constitute 100% of the issued and outstanding equity capital of each of the Company Companies and are all currently registered in the name of the Mortgagor (subject to the registration of the Original Securities in the name of the Mortgagee as Collateral Agent concurrently with the execution and delivery of this Deed of Mortgage);
(d) each of the Mortgagor and the Company Companies are duly incorporated and in good standing under the respective laws of the jurisdiction in which each of them is incorporated and the Mortgagor has and will at all times have the necessary power to enter into and perform its obligations under this Deed of Mortgage and has duly authorized the execution and delivery of this Deed of Mortgage;
(e) the Company is an Companies are each exempted company companies under the laws of the Cayman Islands and neither this Deed of Mortgage or the transfer of the Original Securities to the Mortgagee is subject to any stamp or other tax under the laws of the Cayman Islands Islands, as the case may be, and this Deed of Mortgage is capable of being enforced without being subject to any stamp or other tax under the laws of the Cayman Islands;
(f) pursuant to amendments to the articles of association within 45 days after the date of this Agreement, the Company will not be permitted to issue any equity capital other than the Original Securities;
(g) the Company has Companies have no contractual or other business relationship with any Inactive Subsidiary;
(hg) No Inactive Subsidiary has any operations, assets or liabilities, direct, indirect or contingent; SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES 6 18;
(ih) the Mortgagor holds no rights or Security Interests with respect to present or future revenues and assets, tangible or intangible, relating to the exploration, development, production, transportation and sale of petroleum in and from the Republic of Colombia, directly, by assignment, or otherwise, except as a shareholder of companies whose shares are pledged to Mortgagee pursuant to the Financing Documents;
(ji) this Deed of Mortgage constitutes its legal, valid, binding and enforceable obligation and is a first priority security interest over the Mortgaged Shares effective in accordance with its terms;
(kj) the execution, delivery, observance and performance by the Mortgagor of this Deed of Mortgage will not require the Mortgagor to obtain any licenses, consents or approvals and will not result in any violation to the best of the Mortgagor's knowledge, of any law, statute, ordinance, rule or regulation applicable to it or any other agreements;
(lk) the Company is Companies are not a party or otherwise bound to any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company Companies upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(ml) it has obtained all the necessary authorizations and consents to enable it to enter into this Mortgage and the necessary authorizations and consents will remain in full force and effect at all times during the existence of the security constituted by this Deed of Mortgage;
(nm) the execution, delivery, observance and performance by the Mortgagor of the Deed of Mortgage will not constitute an event of default or trigger any enforcement under any Security Interest in the Mortgagor's assets nor will it result in the creation of any Security Interest over or in respect of the present or future assets of the CompanyCompanies;
(on) the Mortgagor has fully disclosed in writing to the Mortgagee all facts relating to the Mortgagor and the Company Companies which the Mortgagor knows or should reasonably know and which are material for disclosure to the Mortgagee in the context of the Financing Documents; and
(po) no agreement to which the Mortgagor or the Company or its Colombian branch is Companies are a party, or law, decree or regulation to which either is subject, including without limitation any agreement with Empresa Colombiana de Petroleos or imposition by the Ministro de Minas y Energia de Colombia or any other instrumentality of the Republic of Colombia subject requires the consent of any such person to the execution, delivery or performance of this Deed of Mortgage and the other Financing Documents and each obligation and covenant contained herein and therein. SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARES.
4.2 The Mortgagor undertakes that, for so long as any Secured Amounts remain outstanding:
(a) the Mortgagor shall pay to the Mortgagee, upon demand, the amount of all reasonable expenses which the Mortgagee may incur in, about or with a view to perfecting or enforcing this security or otherwise in connection with this security;
(b) the Mortgagor shall promptly pay (and shall indemnify the Mortgagee on demand against) all calls, installments and other payments which may be made or become due in respect of the Mortgaged Property and so that, in the event of default by the Mortgagor, the Mortgagee may do so on behalf of the Mortgagor and clause 4.2(a) shall apply accordingly;
(c) to the extent any Mortgaged Property is at any time not vested in the Mortgagee or its nominee as Collateral Agent the Mortgagor shall forthwith and from time to time deposit with the Mortgagee all certificates and other documents of title relating to the Mortgaged Property and signed share transfer forms;
(d) the Mortgagor will maintain the Company Companies as an exempted company companies under the laws of the Cayman Islands so that the transactions or enforcement actions contemplated hereunder will be capable of being completed without incurrence of any stamp or other tax under the laws of the Cayman Islands;
(e) the Mortgagor will not permit the Company to enter into or become bound by any employment, management or other agreement, the effect of which would be to limit the ability of the Mortgagee to manage the Company upon an event of Default under the Financing Documents or give rise to any payment or penalty to terminate any such arrangement;
(f) the Mortgagor will not permit any Inactive Subsidiary to conduct operations or own any asset or incur any liability, direct, indirect or contingent;
(g) Mortgagor will not permit the Company to engage in any transaction, contractual or otherwise, with any affiliate of Mortgagor except with Mortgagor and Active Subsidiaries and as may otherwise be permitted by the Financing Documents; provided however, that in no event shall the Company engage in any transaction, contractual or otherwise, with an Inactive Subsidiary;
(h) the Mortgagor shall deliver to the Mortgagee undated letters of resignation executed by all persons now or hereafter serving as Directors of the Company Companies from time to time, which letters the Mortgagee shall be entitled SEVEN SEAS PETROLEUM INC. LEGAL MORTGAGE OVER SHARESto date and cause to be given immediate effect as of the date of an Enforcement Notice;
(i) the Mortgagor shall forthwith sign, seal, deliver and complete all transfers, renunciations, proxies (including irrevocable proxies if the Mortgagee so requests) mandates, assignments, deeds and documents and do all acts and things which the Mortgagee may, in its absolute discretion, at any time and from time to time specify for enabling or assisting the Mortgagee:
(i) to perfect or improve its title to and security over the Mortgaged Property including, without limitation, obtaining such approvals or consents to the rights and remedies granted to the Mortgagee herein as the Mortgagee requests in the Mortgagee's sole discretion;
(ii) to vest the Mortgaged Property (including without limitation the registration thereof in the applicable share registry) in the Mortgagee or its nominee or nominees as Collateral Agent as of the date of execution of this Deed of Mortgage;
(iii) to exercise (or enable its nominee or nominees to exercise) any rights or powers attaching to the Mortgaged Property;
(iv) after the service of an Enforcement Notice to sell or dispose of the Mortgaged Property; or
(v) otherwise to enforce any of the rights of the Mortgagee under or in connection with this Deed of Mortgage;
(j) the Mortgagor shall not (without the written consent of the Mortgagee):
(i) create or permit to exist over all or part of the Mortgaged Property (or any interest therein) any Security Interest (other than created or expressly permitted to be created under this Deed of Mortgage or under other Financing Documents) whether ranking prior to, pari passu with or behind the security contained in this Deed of Mortgage;
(ii) sell, transfer or otherwise dispose of the Mortgaged Property or any interest therein or attempt or agree to so dispose;
(iii) permit any person other than the Mortgagee or its nominee to be registered as or become the holder of the Mortgaged Property as Collateral Agent; or
(iv) vote in favour of a resolution or amend, modify or change the memorandum and articles of association of the Companies or authorize the issuance by any of the Companies of any shares or any other equity security.
(v) except as otherwise permitted by the Financing Documents permit the Companies to transfer, assign, dispose of or encumber any rights or interests of the Companies, direct or indirect, with respect to petroleum exploration, development, production, transportation, sale or other disposition or with respect to any association or other contract under which the Companies have such rights or interests;
(vi) permit the Companies to grant any Security Interest in, or otherwise encumber, any of its assets, tangible or intangible, except as may be expressly permitted by the Financing Documents;
(vii) permit the Companies to make any distribution or payment to or for the benefit of Mortgagor, whether directly or otherwise, if the effect of that distribution or payment is to render the Companies insolvent or unable to pay its obligations as they mature; or
(viii) take any other action that would have as its effect a breach of a Financing Document.
(k) to the extent received by the Mortgagor, it shall forward to the Mortgagee all notices, reports, accounts and other documents relating to the Mortgaged Property or which are sent to the holders of any of the Mortgaged Property as soon as they are received;
(l) no further shares or equity securities of any kind in the Companies (or any options or other rights with respect thereto) will be issued and the authorized shares shall at no time exceed the issued shares;
(m) at any time after the service of an Enforcement Notice, it shall exercise all voting and other rights and powers which may at any time be exercisable by the holder of the Mortgaged Property as the Mortgagee may in its absolute discretion direct, it being understood that the Mortgagee has reserved the right to exercise all such voting rights directly for any proper purpose, including without limitation the immediate removal of Directors of the Companies and their replacement;
(n) the Mortgagor shall not take or accept any Security Interest from the Companies or, in relation to the Secured Amounts, from any third party, without first obtaining the Mortgagee's written consent or permit any Security Interest to be granted by the Companies to any third party, except as may be expressly permitted by the Financing Documents;
(o) the Mortgagor shall not prove in a liquidation or winding up of the Companies in competition with the Mortgagee for any amount whatsoever owing to the Mortgagee by the Mortgagor on any account whatsoever; and
(p) the Mortgagor shall not claim payment whether directly or by set-off, lien, counterclaim or otherwise of any amount which may be or has become due to the Mortgagor by the Companies.
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