Conditions to Conversion. Upon the Revolving Administrative Agent’s receipt of a Notice of Conversion and the satisfaction (or waiver by the Revolving Lenders) of the following conditions (the “Conditions to Conversion”), the Conversion shall become effective on the Conversion Date: (a) The Revolving Borrower shall have repaid all outstanding principal of the Revolving Loans together with all unpaid interest accrued thereon as of the date of such repayment and any other outstanding fees and other amounts under the Revolving Loan Documents; (b) Usina Moema shall have formed the New Off-Taker and the New Off-Taker and the Pre-Export Borrowers shall have entered into a New Export Contract in form and substance satisfactory to the Pre-Export Administrative Agent; (c) The Pre-Export Borrowers shall own the Collateral; (d) In the event that the Pre-Export Borrowers COC Event relates to a Direct Sale of a controlling ownership interest in the Pre-Export Borrowers to one or more Pre-Approved Controlling Shareholder(s) or Controlling Shareholder(s) any one of which is not a Pre-Approved Controlling Shareholder, BL shall provide a certificate of an officer of BL as of the Conversion Notice Date that, to the best of its knowledge, any such Controlling Shareholder is not a restricted person (i) listed on the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, (ii) identified in the annex of the Executive Order or (iii) listed on the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury; (e) In connection with a Pre-Export Borrowers COC Event that relates to a Direct Sale of a controlling ownership interest in the Pre-Export Borrowers to one or more Controlling Shareholder(s) any one of which is not a Pre-Approved Controlling Shareholder, during the period commencing on the Conversion Notice Date and ending fifteen (15) Business Days prior to the proposed Conversion Date, each Revolving Lender shall have received all documentation and other information about the Controlling Shareholder(s) as has been reasonably requested in writing by such Revolving Lender from the Controlling Shareholder(s) that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (as such rules and regulations may apply to a beneficial owner of a bank borrower), including without limitation the Patriot Act; provided, that to the extent each of the Controlling Shareholder(s) is a Pre-Approved Controlling Shareholder with respect to any Revolving Lender as of the Conversion Notice Date, such Revolving Lender shall not have a right to decline to convert its Revolving Commitment into a Pre-Export Commitment as a result of its “know your customer” requirements; (f) The Pre-Export Administrative Agent shall have received a written appraisal (in form and substance satisfactory to the Pre-Export Lenders) of the value of the Collateral (other than the Collateral Account (as defined in the Pre-Export Credit Agreement), the Existing Export Contracts and the New Export Contracts) prepared by a third party hired by the Pre-Export Borrowers and reasonably acceptable to the Pre-Export Lenders at least thirty (30) days and no more than ninety (90) days prior to the Conversion Date; (g) The Pre-Export Borrowers shall be in pro forma compliance with the Fixed Asset Coverage Ratio (as defined in the Pre-Export Credit Agreement) and the Offtake Contract Value to Debt Service Coverage Ratio (as defined in the Pre-Export Credit Agreement) as of the Conversion Date, as detailed in a compliance certificate in substantially the form of Exhibit E of the Pre-Export Credit Agreement, delivered by the Pre-Export Borrowers to the Pre-Export Administrative Agent at least five (5) Business Days prior to the Conversion Date; (h) The Pre-Export Borrowers shall be in pro forma compliance with the financial covenants set forth in the Pre-Export Credit Agreement as of the Conversion Date, as detailed in a compliance certificate in substantially the form of Exhibit E to the Pre-Export Credit Agreement, delivered to the Pre-Export Administrative Agent at least five (5) Business Days prior to the Conversion Date; (i) As of the Conversion Date, no Event of Default (as defined under either the Revolving Credit Agreement or the Pre-Export Credit Agreement) shall have occurred and be continuing; (j) All fees required to be paid pursuant to the Fee Letter and reasonable and documented out-of-pocket expenses required to be paid pursuant to the Revolving Loan Documents and the Pre-Export Loan Documents, in each case to the extent invoiced at least three (3) Business Days prior to the Conversion Date, shall have been paid, or shall be paid on the Conversion Date; (k) The Pre-Export Administrative Agent shall have received a solvency certificate in respect of the Pre-Export Borrowers taken as a whole (after giving effect to the Conversion) in a form substantially similar to Exhibit D attached hereto at least five (5) Business Days prior to the Conversion Date; (l) The Pre-Export Administrative Agent shall have received (i) an unaudited consolidated pro forma balance sheet of the Pre-Export Borrowers (after giving effect to the Conversion) at least five (5) Business Days prior to the Conversion Date and (ii) the most recently prepared audited financial statements consisting of the consolidated balance sheet of the Pre-Export Borrowers as of the end of the year covered by such financial statements and the related statements of income and retained earnings and statements of cash flow for such year setting forth in each case in comparative form the corresponding figures for the previous fiscal year, certified by independent certified public accountants satisfactory to the Pre-Export Administrative Agent to the effect that such financial statements fairly present in all material respects the financial condition and results of operations of the Pre-Export Borrowers in accordance with IFRS consistently applied; (m) Off-Shore SugarCo shall have (i) become a Pre-Export Guarantor by executing the Pre-Export Guaranty and any other documents or agreements as the Pre-Export Administrative Agent shall reasonably determine necessary; (ii) taken all of the actions and delivered all of the documents and officer certificates required by Sections 5.1(t)(iii) and (iv) in the Pre-Export Credit Agreement in connection with becoming a Pre-Export Guarantor; and (iii) instructed all Eligible Importers with respect to all Assigned Export Receivables outstanding as of such date to make all payments thereunder directly to the Collateral Account as required under Section 5.2(f) of the Pre-Export Credit Agreement. (n) The Pre-Export Administrative Agent shall have received (i) copies of customary security documentation in respect of the New Collateral duly authorized, executed and delivered by each applicable Pre-Export Borrower and (ii) evidence that all filings in Brazil that are reasonably necessary to create and perfect the security interest in the New Collateral in favor of the Pre-Export Administrative Agent, acting for the benefit of the Pre-Export Lenders, have been made; (o) The Pre-Export Administrative Agent shall have received customary legal opinions in respect to (i) the capacity of the Pre-Export Loan Parties, (ii) the validity and enforceability of the Pre-Export Loan Documents and (iii) the creation of security in respect of the New Collateral, from counsel to the Pre-Export Loan Parties, which shall cover such other matters incident to the transactions contemplated by this Agreement and the Pre-Export Loan Documents as the Pre-Export Administrative Agent may reasonably require; (p) The Pre-Export Administrative Agent shall have received a customary Responsible Officer’s certificate with respect to each Pre-Export Loan Party dated as of the Conversion Date with appropriate insertions and attachments satisfactory in form and substance to the Pre-Export Administrative Agent, including (A) organizational documents, (B) resolutions and other necessary corporate approvals in respect of the Pre-Export Loan Documents to which such Pre-Export Loan Party is a party, (C) incumbency certificates and (D) additional documents that are customarily required in similar transactions; (q) The representations and warranties of the Pre-Export Loan Parties set forth in the Pre-Export Loan Documents shall be true and correct in all material respects on and as of the Conversion Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; (r) Since the Revolving Closing Date, there has been no development or event which has had or could, in BL’s good faith reasonable judgment, reasonably be expected to have a Material Adverse Effect (as defined in the Pre-Export Credit Agreement); (s) The Pre-Export Administrative Agent shall have received (at least three (3) Business Days prior to the Conversion Date) all documentation and other information with respect to the Pre-Export Loan Parties, BIF and KBBV as has been reasonably requested in writing by any Revolving Lender at least ten (10) Business Days prior to the Conversion Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; (t) The Pre-Export Administrative Agent shall have received a duly authorized, executed and delivered promissory note from the Pre-Export Borrowers signed por aval by each Pre-Export Guarantor governed by Brazilian laws issued in connection with the Pre-Export Loans in an amount equal to 120% of the Pre-Export Commitments; (u) The Pre-Export Administrative Agent shall have received from each Pre-Export Borrower copies of the screen pages of the ROF evidencing the registrations of the terms and conditions of the pre-export facility provided under the Pre-Export Credit Agreement with the Central Bank of Brazil, in a form satisfactory to the Pre-Export Administrative Agent; provided, that, in the case of an assignment of an Existing Pre-Export Loan, the existing ROF related to such Existing Pre-Export Loan shall be amended and restated at the time of such assignment in a form satisfactory to the Pre-Export Administrative Agent; (v) The Pre-Export Administrative Agent shall have received evidence that each of the Pre-Export Loan Parties shall have appointed an agent for service of process in New York and such agent shall have accepted such appointment in accordance with the Pre-Export Credit Agreement; (w) The Pre-Export Administrative Agent shall have received evidence reasonably satisfactory to it that the business conducted and proposed to be conducted by the Pre-Export Loan Parties is in compliance with all Requirements of Law and regulations and that all registrations, filings and licenses and/or consents required to be obtained by the Pre-Export Loans Parties, as the case may be, in connection therewith have been made or obtained and are in full force and effect, except to the extent that the failure to comply with any such Requirement of Law or to make or obtain any such registration, filing, license or consent could not, in the aggregate, reasonably be expected to have a Material Adverse Effect; (x) The Pre-Export Administrative Agent shall have received a list of real property owned by the Pre-Export Loan Parties in a form substantially similar to Exhibit E attached hereto; (y) The Pre-Export Administrative Agent shall have received a description of the areas where each Pre-Export Borrower’s sugar cane roots are located in a form substantially similar to Exhibit F attached hereto; and (z) The Pre-Export Administrative Agent shall have received a Responsible Officer’s certificate from each of the Pre-Export Borrowers certifying as to satisfaction of certain of the Conditions to Conversion.
Appears in 1 contract
Sources: Framework Agreement (Bunge LTD)
Conditions to Conversion. Upon the Revolving Administrative Agent’s receipt of a Notice of The Conversion and the satisfaction (is subject to satisfaction, or waiver by the Revolving Lenders) Majority Lenders in writing, of the following conditions (the “Conditions to Conversion”), the Conversion shall become effective on the Conversion Dateconditions:
(a) The Revolving Borrower the Company shall have repaid all outstanding principal of filed with the Revolving Loans together with all unpaid interest accrued thereon as SEC a registration statement on Form S-11 under the Securities Act for a Qualifying IPO on or prior to the first anniversary of the date of such repayment and any other outstanding fees and other amounts under the Revolving Loan Documentsthis Agreement;
(b) Usina Moema the Company shall have formed be an internally managed real estate investment trust, with general and administrative expenses consistent with past practices in all material respects, taking into account the New Off-Taker costs and the New Off-Taker and the Pre-Export Borrowers shall have entered into a New Export Contract in form and substance satisfactory expenses associated with Spirit Finance Capital Management, LLC prior to the Pre-Export Administrative AgentQualifying IPO;
(c) The Pre-Export Borrowers if between the date of this Agreement and the completion of a Qualifying IPO there is a change in the chief executive officer or chief financial officer of the Company, then the Company shall own have informed the CollateralLenders in advance of such proposed change and, before hiring a replacement chief executive officer or chief financial officer, the Company shall have offered the Lenders an opportunity to discuss such proposed change with the Company and meet the replacement chief executive officer and/or chief financial officer candidate(s); provided that if disclosing any such change would materially compromise such hiring process or otherwise create a confidentiality issue for the Company or such candidate(s), this condition shall be satisfied if the three Lenders holding the greatest unpaid principal amount of TLC at such time are informed of such change and offered the opportunity to discuss such change with the Company and meet the replacement chief executive officer and/or chief financial officer candidate(s);
(d) In the event that the Pre-Export Borrowers COC Event relates to a Direct Sale of a controlling ownership interest in the Pre-Export Borrowers to Company shall have at least one or more Pre-Approved Controlling Shareholder(s) or Controlling Shareholder(s) any one of which is not a Pre-Approved Controlling Shareholder, BL shall provide a certificate of an officer of BL as of the Conversion Notice Date that, new Independent Director reasonably acceptable to the best of its knowledge, any such Controlling Shareholder is not a restricted person (i) listed on the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, (ii) identified in the annex of the Executive Order or (iii) listed on the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s TreasuryMajority Lenders;
(e) In connection with a Pre-Export Borrowers COC Event that relates to a Direct Sale all reasonable legal fees and expenses of a controlling ownership interest in the Pre-Export Borrowers to one or more Controlling Shareholder(s) any one of which is not a Pre-Approved Controlling Shareholder, during the period commencing on the Conversion Notice Date and ending fifteen (15) Business Days Ad Hoc Committee Counsel incurred prior to the proposed Conversion Datein accordance with the Ad Hoc Committee Fee Letter, each Revolving Lender shall have received all documentation and other information about the Controlling Shareholder(s) as has been reasonably requested in writing by such Revolving Lender from the Controlling Shareholder(s) that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (as such rules and regulations may apply to a beneficial owner of a bank borrower), including without limitation the Patriot Act; provided, that to the extent each invoiced to the Company at least one Business Day in advance of the Controlling Shareholder(s) is a Pre-Approved Controlling Shareholder with respect to any Revolving Lender as of the Conversion Notice DateConversion, such Revolving Lender shall not have a right to decline to convert its Revolving Commitment into a Pre-Export Commitment as a result of its “know your customer” requirementsbeen paid in full;
(f) The Pre-Export Administrative Agent shall have received a written appraisal (in form and substance satisfactory to the Pre-Export Lenders) of the value of the Collateral (other than the Collateral Account (as defined in the Pre-Export Credit Agreement), the Existing Export Contracts and the New Export Contracts) prepared by a third party hired by the Pre-Export Borrowers and reasonably acceptable to the Pre-Export Lenders at least thirty (30) days and no more than ninety (90) days prior to the Conversion Date;
(g) The Pre-Export Borrowers shall be in pro forma compliance with the Fixed Asset Coverage Ratio (as defined in the Pre-Export Credit Agreement) and the Offtake Contract Value to Debt Service Coverage Ratio (as defined in the Pre-Export Credit Agreement) as of the Conversion Date, as detailed in a compliance certificate in substantially the form of Exhibit E of the Pre-Export Credit Agreement, delivered by the Pre-Export Borrowers to the Pre-Export Administrative Agent at least five (5) Business Days prior to the Conversion Date;
(h) The Pre-Export Borrowers shall be in pro forma compliance with the financial covenants set forth in the Pre-Export Credit Agreement as of the Conversion Date, as detailed in a compliance certificate in substantially the form of Exhibit E to the Pre-Export Credit Agreement, delivered to the Pre-Export Administrative Agent at least five (5) Business Days prior to the Conversion Date;
(i) As of the Conversion Date, no Event of Default (as defined under either the Revolving Credit Agreement or the Pre-Export Credit Agreement) shall have occurred and be continuing;
(j) All fees required to be paid pursuant to the Fee Letter and reasonable and documented out-of-pocket expenses required to be paid pursuant to the Revolving Loan Documents and the Pre-Export Loan Documents, in each case to the extent invoiced at least three (3) Business Days prior to the Conversion Date, shall have been paid, or shall be paid on the Conversion Date;
(k) The Pre-Export Administrative Agent shall have received a solvency certificate in respect of the Pre-Export Borrowers taken as a whole (after giving effect to the Conversion) in a form substantially similar to Exhibit D attached hereto at least five (5) Business Days prior to the Conversion Date;
(l) The Pre-Export Administrative Agent shall have received (i) an unaudited consolidated pro forma balance sheet a legal opinion of the Pre-Export Borrowers (after giving effect ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, counsel to the Conversion) at least five (5) Business Days prior to Company and its Subsidiaries, in the Conversion Date form attached hereto as Annex C, and (ii) the most recently prepared audited financial statements consisting a legal opinion of the consolidated balance sheet of the Pre-Export Borrowers as of the end of the year covered by such financial statements and the related statements of income and retained earnings and statements of cash flow for such year setting forth in each case in comparative form the corresponding figures for the previous fiscal year▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certified by independent certified public accountants satisfactory counsel to the Pre-Export Administrative Agent to Company, in the effect that such financial statements fairly present in all material respects the financial condition and results of operations of the Pre-Export Borrowers in accordance with IFRS consistently appliedform attached hereto as Annex D;
(mg) Off-Shore SugarCo the Sponsors and their Affiliates not being entitled to, and they shall have not, directly or indirectly, (i) become a Pre-Export Guarantor by executing sell any Common Stock in the Pre-Export Guaranty and any other documents Qualifying IPO or agreements as the Pre-Export Administrative Agent shall reasonably determine necessary; (ii) taken all of the actions and delivered all of the documents and officer certificates required by Sections 5.1(t)(iii) and (iv) in the Pre-Export Credit Agreement receive any fees or other payments in connection with becoming the transactions contemplated hereby or the Qualifying IPO, except (A) Macquarie Capital (USA) Inc. or one of its Affiliates may receive a Pre-Export Guarantor; and (iii) instructed all Eligible Importers with respect transaction advisory fee not to all Assigned Export Receivables outstanding as of such date to make all payments thereunder directly to the Collateral Account as required under Section 5.2(f) of the Pre-Export Credit Agreement.
(n) The Pre-Export Administrative Agent shall have received (i) copies of customary security documentation in respect of the New Collateral duly authorized, executed and delivered by each applicable Pre-Export Borrower and (ii) evidence that all filings in Brazil that are reasonably necessary to create and perfect the security interest in the New Collateral in favor of the Pre-Export Administrative Agent, acting exceed $8,000,000 for services performed for the benefit of the Pre-Export Lenders, have been made;
(o) The Pre-Export Administrative Agent shall have received customary legal opinions Company in respect to (i) the capacity of the Pre-Export Loan Parties, (ii) the validity and enforceability of the Pre-Export Loan Documents and (iii) the creation of security in respect of the New Collateral, from counsel to the Pre-Export Loan Parties, which shall cover such other matters incident to connection with the transactions contemplated by this Agreement and the Pre-Export Loan Documents as the Pre-Export Administrative Agent may reasonably require;
(p) The Pre-Export Administrative Agent shall have received a customary Responsible Officer’s certificate with respect to each Pre-Export Loan Party dated as of the Conversion Date with appropriate insertions and attachments satisfactory in form and substance to the Pre-Export Administrative Agent, including (A) organizational documentsAgreement, (B) resolutions and fees or other necessary corporate approvals amounts may be paid to any Affiliate of a Sponsor serving as an underwriter in respect of connection with the Pre-Export Loan Documents Qualifying IPO pursuant to which such Pre-Export Loan Party is a party, arrangements not more favorable than those applicable to the independent underwriters for the Qualifying IPO or (C) incumbency certificates and (D) additional documents that are customarily required as consented to in similar transactionswriting by the Majority Lenders;
(qh) The each of the representations and warranties in Section 11(c) of the Pre-Export Loan Parties set forth in the Pre-Export Loan Documents this Agreement shall be true true, correct and correct in all material respects on and as of the Conversion Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct complete in all material respects as of such earlier date;
(r) Since the Revolving Closing Date, there has been no development or event which has had or could, in BL’s good faith reasonable judgment, reasonably be expected to have a Material Adverse Effect (as defined in the Pre-Export Credit Agreement);
(s) The Pre-Export Administrative Agent shall have received (at least three (3) Business Days prior to the Conversion Date) all documentation and other information with respect to the Pre-Export Loan Parties, BIF and KBBV as has been reasonably requested in writing by any Revolving Lender at least ten (10) Business Days prior to the Conversion Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act;
(t) The Pre-Export Administrative Agent shall have received a duly authorized, executed and delivered promissory note from the Pre-Export Borrowers signed por aval by each Pre-Export Guarantor governed by Brazilian laws issued in connection with the Pre-Export Loans in an amount equal to 120% of the Pre-Export Commitments;
(u) The Pre-Export Administrative Agent shall have received from each Pre-Export Borrower copies of the screen pages of the ROF evidencing the registrations of the terms and conditions of the pre-export facility provided under the Pre-Export Credit Agreement with the Central Bank of Brazil, in a form satisfactory to the Pre-Export Administrative Agent; provided, that, in the case of an assignment of an Existing Pre-Export Loan, the existing ROF related to such Existing Pre-Export Loan shall be amended and restated at the time of such assignment in a form satisfactory to the Pre-Export Administrative Agent;
(v) The Pre-Export Administrative Agent shall have received evidence that each of the Pre-Export Loan Parties shall have appointed an agent for service of process in New York and such agent shall have accepted such appointment in accordance with the Pre-Export Credit Agreement;
(w) The Pre-Export Administrative Agent shall have received evidence reasonably satisfactory to it that the business conducted and proposed to be conducted by the Pre-Export Loan Parties is in compliance with all Requirements of Law and regulations and that all registrations, filings and licenses and/or consents required to be obtained by the Pre-Export Loans Parties, as the case may be, in connection therewith have been made or obtained and are in full force and effect, except to the extent that the failure to comply with any such Requirement of Law or to make or obtain any such registration, filing, license or consent could not, in the aggregate, reasonably be expected to have a Material Adverse Effect;
(x) The Pre-Export Administrative Agent shall have received a list of real property owned by the Pre-Export Loan Parties in a form substantially similar to Exhibit E attached hereto;
(y) The Pre-Export Administrative Agent shall have received a description of the areas where each Pre-Export Borrower’s sugar cane roots are located in a form substantially similar to Exhibit F attached heretoConversion; and
(zi) The Pre-Export Administrative Agent the Company shall have received a Responsible Officer’s certificate from each of the Pre-Export Borrowers certifying as to satisfaction of certain of the Conditions to Conversioncomplied with Section 7(a)(i) and Section 7(b)(ii).
Appears in 1 contract