SYNDICATED SUPER SENIOR CREDIT FACILITY Maximum Amount: [125,000,000] Granted by: [THE CONSORTIUM] 1 [ ] as Lenders [NUEVA PESCANOVA, S.L.] [SUBSIDIARIES OF NUEVA PESCANOVA, S.L.] as Borrowers and Guarantors 2 and PESCANOVA, S.A. as Shareholder In [ ], on [July] [ ], 2014 1 2 The Consortium will have a stake of 30% in the Super Senior Credit Facility as Lender in accordance with the provisions of Schedule 1-A to the Arrangement with Creditors and will carry out the necessary steps for the syndication of the Super Senior Credit Facility. The remaining 70% of the Super Senior Credit Facility belongs to the Lenders that will be designated by the Consortium. Nueva Pescanova and its subsidiaries are included within the category of Borrowers and Guarantors (except for the subsidiaries excluded in Schedule 1-C to the Arrangement or, where relevant, their successors), in accordance with the post-restructuring corporate structure envisaged in the Proposal for an Arrangement made by Pescanova.
CONTENTS 1. DEFINITIONS AND INTERPRETATION 6 1.1 Definitions 6 1.2 Interpretation 10 2. GENERAL TERMS 10 2.1 Maximum Amount of the Credit Facility, period of drawdown of the total amount of the Super Senior Credit Facility and acceptance 11 2.2 Distribution of the Super Senior Credit Facility 11 2.3 Acceptance by the Lenders of their stakes 11 2.4 Prior conditions for the signature of this Agreement 11 3. CONDITION PRECEDENT 12 4. JOINT AND INDEPENDENT NATURE 13 4.1 Joint nature and independence 13 4.2 Effect of a Lender s breach 13 4.3 Extrajudicial and judicial actions of the Lenders 13 4.4 Adoption and binding nature of resolutions 13 5. DRAWDOWN OF THE FUNDS 14 5.1 Request for Drawdowns 14 5.2 Drawdown Period 14 5.3 Conditions of Drawdown 15 5.4 Record of delivery of funds 15 6. purpose of the funds 16 7. ACCRUAL OF INTEREST ON THE SUPER SENIOR CREDIT FACILITY 16 8. INTEREST PERIODS AND PAYMENT OF INTEREST ON THE SUPER SENIOR CREDIT FACILITY 16 8.1 Division of the Super Senior Credit Facility into Interest Periods 16 8.2 Interest rate and absolute amount of the interest 17 8.3 Procedure for establishing the interest rate 17 8.4 Payment of interest on the Super Senior Credit Facility 17 9. LATE-PAYMENT INTEREST 18 9.1 Accrual of late-payment interest on the unpaid principal 18 9.2 Accrual of late-payment interest on other unpaid items 18 9.3 Settlement and payment or capitalization of late-payment interest 18 9.4 Procedural default interest 19 10. CHANGE OF CIRCUMSTANCES 19 10.1 General declaration 19 10.2 Increase of costs or reduction of income 19 10.3 Unforeseen infringement of the law 20 10.4 Mitigation of the consequences of the change of circumstances 20 10.5 Foreseeable changes of circumstances 21 1
11. MATURITY AND REPAYMENT OF THE SUPER SENIOR CREDIT FACILITY 21 11.1 Repayment during the Grace Period 21 11.2 Ordinary repayment 21 11.3 Voluntary early repayment 22 11.4 Partial compulsory repayment. Surplus cash (Cash Sweep) 23 12. FEES AND EXPENSES 24 12.1 Opening Fee 24 12.2 Underwriting Fee 24 12.3 Availability Fee 24 12.4 Expenses and taxes 24 13. TAXES 25 13.1 Payments net of taxes 25 13.2 Recovery and return of tax withholdings 26 14. PAYMENTS 26 14.1 Payments by the Borrowers 26 14.2 Form of the payments 26 14.3 Finality and irrevocability of payments 27 14.4 Attribution of payments in relation to the Super Senior Credit Facility 27 14.5 Order of priority in relation to the other Finance Documents 27 14.6 Intercreditor 28 14.7 Setoff of balances 29 14.8 Indemnity for damage caused to the Lenders due to the breakup of Interest Periods 30 15. ACCOUNTS 30 15.1 The Agent s Accounts 31 15.2 Each Lender s Account 31 15.3 Keeping of accounts in the case of assignment 31 16. THE BORROWERS WARRANTIES AND REPRESENTATIONS 31 16.1 Declarations: essential nature for the Lenders 31 16.2 Continued existence of the declarations 35 17. THE BORROWERS OBLIGATIONS 35 17.1 Reporting obligations 35 17.2 Obligations in relation to accounts and auditing 37 17.3 Negative obligations 37 17.4 Positive obligations 39 17.5 Financial commitments 41 18. AGENCY 41 18.1 Mandate 41 18.2 The Agent s liability 42 18.3 Reimbursement of the Agent 43 18.4 The Agent s resignation 43 18.5 Revocation of the Agent s appointment 44 2
19. ASSIGNMENT AND TRANSFER 44 19.1 Assignments and transfers by the Borrowers and the Shareholder 44 19.2 Assignment by the Lenders 44 20. EARLY TERMINATION 45 20.1 Early Termination Events 45 20.2 Termination by decision of the Majority of the Lenders 47 21. ENFORCEMENT OF THE SUPER SENIOR CREDIT FACILITY 48 21.1 Determination of the net amount 48 21.2 Procedure and forms of enforcement, general and special 48 21.3 Address for enforcement 49 22. SECURITY 49 22.1 List of Security to be granted under this Agreement 49 22.2 The Pledges to be granted 49 22.3 The Guarantee 49 22.4 Independent nature of the Security 54 22.5 Indivisibility of the Security 54 22.6 Continued existence of the Security 54 22.7 Assignment of rights and legal remedies to the Lenders 55 22.8 Irrevocable power of attorney 55 23. ADDITIONAL DOCUMENTATION 55 24. INDEMNITY 56 25. ADDRESSES 56 25.1 For the Agent and the other Lenders 56 25.2 For the Borrowers and the Shareholder 56 26. NOVATION 56 27. PARTIAL INVALIDITY 56 28. LAW AND JURISDICTION 57 28.1 Governing law 57 28.2 Jurisdiction 57 3
SYNDICATED SUPER SENIOR CREDIT FACILITY AGREEMENT This agreement is entered into in [ ], on [July] [ ], 2014, attested by the notary Mr. [ ], member of the Institute of Notaries of [ ], between [THE CONSORTIUM] ( The Consortium ). [ ]. Hereinafter, the Consortium and [ ] may be jointly referred to as the Lenders, and individually, as a Lender. [NUEVA PESCANOVA] ( Nueva Pescanova or the Borrower or the Company ), a Spanish company with registered office at [ ], holder of taxpayer identification number [ ], and registered in [ ] Commercial Registry in volume [ ], book [ ], sheet [ ], page [ ], entry [ ]. PESCANOVA ESPAÑA, S.L. ( Pescanova España ), a Spanish company with registered office at [ ], holder of taxpayer identification number [ ], and registered in [ ] Commercial Registry in volume [ ], book [ ], sheet [ ], page [ ], entry [ ]. [OTHER SUBSIDIARIES] ( [Subsidiaries] ), a Spanish company with registered office at [ ], holder of taxpayer identification number [ ], and registered in [ ] Commercial Registry in volume [ ], book [ ], sheet [ ], page [ ], entry [ ]. Hereinafter, Nueva Pescanova, Pescanova España and [Subsidiaries] may be jointly referred to as the Borrowers or the Guarantors, where relevant, and individually, as a Borrower or a Guarantor, where relevant. The Lenders, the Borrowers and the Guarantors will be jointly referred to as the Parties and individually as a Party. WHEREAS I. In light of the situation of financial need of the Spanish company Pescanova, S.A. ( Pescanova ) and of its subsidiaries and the other companies in its group (the Pescanova Group ), on [ ] [ ], 2014 the creditors of Pescanova signed a 4
creditors arrangement, which was ratified on [ ] [ ], 2014 by Pontevedra Commercial Court no. 1, the court handling the Pescanova insolvency proceeding, whereby a total restructuring of the debt of Pescanova and of the Pescanova Group was agreed on, consisting of (i) an initial partial reduction of the total debt of Pescanova and of its Spanish subsidiaries; (ii) a subsequent modifying, nonextinguishing novation of the repayment period for the remaining debt (rescheduling) ( Insolvency Debt ) (the Subordinate Debt ); (iii) various structural modifications that allowed the subordination of the Insolvency Debt of the Spanish subsidiaries, the protection of Nueva Pescanova and Pescanova España from the past liability of the Pescanova Group and the streamlining of the existing organization chart of Pescanova and its subsidiaries, in order to improve synergies and prevent duplication of costs; and (iv) various capital injections to be made at Nueva Pescanova, including an initial contribution of capital by the Lenders on its formation; all of the above with a view to guaranteeing the viability and continuity of the businesses and operations of Pescanova and of the Pescanova Group (the Transaction ). For these purposes, the detailed scheme of the Transaction is attached to this Agreement in Schedule I. II. In accordance with the structure of the agreed Transaction, the Borrowers require additional capital in order to make the investments which are listed in the viability plan attached as Schedule II (the Viability Plan ) and, in accordance with the agreed Transaction, this additional finance is structured, among other measures, as the grant by the Lenders to Nueva Pescanova and the other Borrowers, of a revolving credit facility in an amount of up to [125,000,000] euros with super senior ranking in relation to any other multi-borrower debt and/or debt instrument of the Borrowers (the Super Senior Credit Facility ), the repayment of which must be guaranteed by the grant, at the same time as the signature of this Agreement, of a pledge on the shares of Pescanova España and Novapesca Trading, S.L. [and the other subsidiaries], and of a joint and several guarantee by all the Guarantors. Hereinafter, the Super Senior Credit Facility, the Subordinate Debt, the security granted in this respect, as well as collateral documents arising from them, will be jointly referred to as the Finance Documents. III. On the basis of the request for additional finance presented by the Borrowers, the Lenders have agreed to grant such Super Senior Credit Facility under the terms which will be stated, insofar as (i) the pledge on the shares held by Nueva Pescanova in the share capital of Pescanova España is granted; and (ii) a joint and several guarantee is granted by the Borrowers. IV. On the basis of the foregoing and the current solvency and business conditions of the Borrowers, the truthfulness of the warranties and representations and the 5
fulfillment of the obligations, in general, the Lenders are willing to grant the aforementioned finance to the Borrowers. In the light of the foregoing, the Parties enter into this Super Senior Credit Facility Agreement (the Agreement ), which will be governed by the following CLAUSES Section I Definitions and interpretation 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions Change of Control Material Adverse Change Certificate of Observance of Ratios and Values Consortium Creditors Arrangement Reduction of the shareholding of this Consortium in the capital of Nueva Pescanova below the threshold of thirty percent (30%). Any circumstance, fact, change, aggravation of circumstances, scenario and/or legislative change which, in the opinion of the Majority of the Lenders, negatively and significantly affects (or may imminently affect) (i) the financial situation or the assets of the Borrowers; (ii) the value or enforceability of the security granted for the benefit of the Lenders under this Agreement; or (iii) the Borrowers capacity to comply with the provisions of the Agreement. The document which must be issued by the Borrowers auditor which must necessarily be an audit firm among the first four (4) firms of recognized national and international prestige, within the meaning of Clause 17.2, which the Borrowers will furnish to the Lenders together with the financial statements under the provisions of Clause Error! No se encuentra el origen de la referencia., in which the fulfillment of the financial commitments established in Clause Error! No se encuentra el origen de la referencia. will be stated, placing on record the calculations performed in order to determine such values. As defined in Schedule 1-A to the Creditors Arrangement. Proposal for an Arrangement presented by Pescanova S.A. on March 18, 2014 to the Pontevedra Commercial Court no. 1. 6
Drawdown and Payments Account Subordinate Debt Interest-bearing Debt Net Financial Indebtedness Business Day Drawdown(s) EBITDA Financial Indebtedness Account number [ ] opened by the Borrowers in the credit institution [ ] or, where relevant, such other account as the Lenders and the Borrowers may agree in the future. The Drawdown and Payments Account may not be used by the Borrowers, except for the purposes established in this Agreement. Insolvency Debt of Pescanova and of its Spanish subsidiaries which is structured under the relevant creditors arrangements. Long and short-term Financial Indebtedness, as well as any other indebtedness, whether to financial institutions, or by the issue of bonds, promissory notes, debentures, debentures convertible into shares or similar instruments, and other interest-bearing indebtedness both short and long term, including credit facilities, discounts or invoices accepted or short or long-term financial lease transactions. The sum of: (i) the Interest-bearing Debt, (ii) the Off-Balance Sheet Transactions and (iii) the security granted to third parties, including that granted to subsidiaries of the Borrowers; less: (i) the treasury and (ii) temporary financial investments (excluding loans to other companies and other non-liquid investments). Any day of the week on which transactions may be performed in accordance with the TARGET2 (Trans-European Automated Real- Time Gross Settlement Express Transfer System) calendar. Saturdays, Sundays and public holidays, established as such by the local official calendar of [city], are excluded. Means each of the drawdowns of funds which may be made by the Borrowers under this Agreement. The sum of (i) the operating result, (ii) the amortization of tangible and intangible fixed assets and (iii) the expenses which may be amortized in the period of twelve (12) months immediately prior to the date on which the EBITDA is to be calculated. This calculation shall be performed in accordance with generally accepted accounting criteria in Spain. Means, at any given time, any debt due to or relating to (without the same debt being recorded twice for accounting purposes under different headings): 7
(i) (ii) money obtained on loan; any amount owed as a result of acceptance under any acceptance credit facility (e.g. bills of exchange) or similar item; (iii) any amount owed under programs for the purchase of promissory notes or for the issue of securities representing debt in the form of debentures, promissory notes, bonds, loans on securities or similar instruments; (iv) any amount owed in relation to any lease or purchase with deferred payment which, in accordance with accounting principles, must be considered as finance or capital lease; (v) sale or discounting of receipts (provided that the sale or the discount is with recourse); (vi) any amount owed under any other kind of transaction (including future sale or purchase agreement) which has the commercial effect of accepting money on loan; (vii) any derivatives transaction contracted in order to provide hedging against or to benefit from the fluctuations in any index or price (when calculating the value of the derivatives transaction, only the market value will be taken into account); (viii) amounts received as capital or premium for the issue of redeemable shares, as well as commitments to acquire treasury stock, to repurchase own shares or sell treasury stock below its reasonable value; (ix) any counter-guarantee obligation in relation to security, indemnity, obligations, documentary letters of credit or contingent letters of credit or any other instrument issued by a bank or financial institution; and (x) any amount owed in relation to any security or indemnity in relation to any of the items listed in paragraphs (i) to (ix) above. 8
Final Maturity Date The date on which seven (7) years elapse from the date of this Agreement, i.e. [July] [ ], 2021. Amount Drawn Down of the Credit Facility Maximum Amount of the Credit Facility Amount Not Drawn Down of the Credit Facility Insolvency Law Qualified Majority of the Lenders Majority of the Lenders Secured Obligations Off-Balance Sheet Transactions Grace Period Drawdown At any given time, the sum of all the amounts drawn down by the Borrowers under this Super Senior Credit Facility. [125,000,000] euros. At any given time, the difference between the Maximum Amount of the Credit Facility and the Amount Drawn Down of the Credit Facility. Means Insolvency Law 22/2003, of July 9, according to its current wording and as it is in force at any given time. Lender or Lenders whose stake in the outstanding balance of the Super Senior Credit Facility constitutes at any given time more than seventy-five percent (75%). Lender or Lenders whose stake in the outstanding balance of the Super Senior Credit Facility constitutes at any given time more than sixty-six percent (66%). Include each and all of the obligations assumed by the Borrowers under this Agreement, and under the rest of the Finance Documents (as defined later). Any transaction which is not directly shown as indebtedness on the balance sheet of the relevant financial statements, but which constitutes for the Borrowers present and/or future commitments which may determine the receipts and/or may involve payments. The period of time elapsed between the signature of this Agreement and the date one-and-a-half years hence, i.e. from [July] [ ], 2014 until [December] [31], 2016. Period of two (2) years from the completion of the Transaction in 9
Period which the Borrowers may draw down the Super Senior Credit Facility in accordance with the terms and conditions contained in this Agreement. Interest Periods Each of the successive periods defined in Clause 8.1. Enforcement Event Means a full or partial breach of any of the Secured Obligations, or any of the grounds for early termination provided for in the Agreement, and a subsequent declaration of early termination in accordance with the provisions of Clause 20.2. 1.2 Interpretation The schedules form part of the Agreement. Any reference made to this Agreement, in this document or in the schedules thereto, shall be deemed to be made to this document and to all schedules thereto, which form an integral part of this Agreement. Person. The word person shall refer to natural or legal persons of any kind, public or private. Calculation of periods. Unless expressly provided otherwise in this Agreement (i) periods expressed in days refer to calendar days, calculated from the calendar day immediately after that of commencement of the calculation, inclusive, up to the last calendar day of the period, inclusive; (ii) periods expressed in Business Days refer to Business Days, calculated from the Business Day immediately after that of commencement of the calculation, inclusive, up to the last Business Day of the period, inclusive; and (iii) periods expressed in months shall be calculated from date to date, unless in the last month of the period such date does not exist, in which case the period shall end on the last day of that month. Calculation of financial ratios. Unless expressly provided otherwise in this Agreement, ratios or other financial figures included in this Agreement shall be deemed to be calculated (i) on the date stipulated or on the last day of the stipulated period; or (ii) in the absence of a period, the last day of the financial year or, alternatively, of the calendar year. 2. GENERAL TERMS Section II The Super Senior Credit Facility 10
2.1 Maximum Amount of the Credit Facility, period of drawdown of the total amount of the Super Senior Credit Facility and acceptance The Lenders grant to the Borrowers the line of credit the subject-matter of this Agreement for the Maximum Amount of the Credit Facility, which must be made available to the Borrowers in the Drawdown and Payments Account. The Borrowers accept the Super Senior Credit Facility and undertake to use it for the agreed purposes, and to repay the principal and to pay the interest, fees, taxes and expenses accrued, and to fulfill all the other commitments and obligations borne by them, in accordance with the terms and conditions contained in this Agreement. 2.2 Distribution of the Super Senior Credit Facility The Maximum Amount of the Credit Facility is distributed among the Lenders in accordance with the following stakes: Lender Maximum Amount of the Credit Facility Percentage (euros) The Consortium [ ] 30% [ ] [ ] 70% TOTAL [125,000,000] 100% As a result of any assignment made under the provisions of Clause 19, any new Lender that acquires a stake in the Super Senior Credit Facility shall accept the amount of the stake in the Super Senior Credit Facility acquired and the amounts and percentages indicated above shall be deemed to be modified accordingly. 2.3 Acceptance by the Lenders of their stakes The Lenders accept and assume the amount of each of their respective stakes in the Super Senior Credit Facility under the conditions established in this Agreement. 2.4 Prior conditions for the signature of this Agreement The signature of this Agreement and, consequently, the payment of the Maximum Amount of the Credit Facility by the Lenders is subject to the following optional prior conditions for the Lenders: 11
(a) (b) (c) (d) (e) (f) (g) Conclusion, to the Lenders satisfaction, of the due diligence which is currently being carried out in relation to Pescanova and its group. Preparation of the documentation relating to the Transaction, intended to achieve the continuity and viability of Pescanova and its group, under terms acceptable to all the Parties. Final approval of the proposal for an Arrangement presented by Pescanova S.A. on March 18, 2014, as well as the proposals for an Arrangement of the Spanish Subsidiaries (under the terms provided in Schedule 4 of the aforementioned proposal), by (i) the relevant legal majority of their creditors; and (ii) the competent Commercial Court. Satisfactory regulation of the rights and guarantees of the Lenders if the Creditors Arrangement and the content thereof is not yet final and definitive at the time of the payment of the capital injections envisaged, and, in particular, the payment of the Maximum Amount of the Credit Facility. In relation to the Restructuring (as defined in the above-mentioned proposal for an Arrangement), that, within a period of one month from the publication of the last announcement of the resolution whereby the Restructuring is approved (or, where relevant, from the written notification to all the shareholders and creditors of the dispatch of the relevant notification to the last of them) creditors holding claims (affected by the Creditors Arrangement) of an amount exceeding 30 million euros, have not sought to oppose it. Approval of the Restructuring by the Shareholders Meeting of Pescanova and those of its subsidiaries or investees, where relevant, in each case; and Obtainment of the necessary authorizations from the Spanish National Securities Market Commission (CNMV). 3. CONDITION PRECEDENT Without prejudice to the provisions of Clause Error! No se encuentra el origen de la referencia. above, the enforceability of all the terms agreed in this Agreement is subject to the necessary stabilization of the international subsidiaries of Pescanova, to the satisfaction of the Qualified Majority of the Lenders, not later than 1 month from the fulfillment of the prior conditions indicated in the abovementioned Clause 2.4 (the Condition Precedent ). 12
In the interests of greater clarity, stabilization shall mean the actions which are listed for certain international subsidiaries of Pescanova, by way of example, in Schedule Error! No se encuentra el origen de la referencia. to this Agreement; as well as, among other actions, the avoidance of acceleration, enforcement or early maturity of any of the debts of which an international subsidiary is the principal debtor and which are guaranteed or secured by Pescanova or any of its Spanish subsidiaries. Subject to the prior fulfillment of the Condition Precedent, the obligations established in this Agreement shall be automatic and fully enforceable. In accordance with the foregoing, the Condition Precedent shall not be deemed to be fulfilled until the complete stabilization of the international subsidiaries of Pescanova, to the satisfaction of the Qualified Majority of the Lenders. 4. JOINT AND INDEPENDENT NATURE 4.1 Joint nature and independence The contractual position of each of the Lenders under the Super Senior Credit Facility shall be of a joint nature, their rights and obligations being therefore entirely independent unless expressly stated otherwise in this Agreement. 4.2 Effect of a Lender s breach No Lender will be liable for the breach of another Lender of the obligations provided under this Agreement. In particular, if any of the Lenders fails to make available to the Agent the funds promised under this Agreement, the other Lenders will not be obliged to assume the relevant part of the defaulting Lender, without prejudice to the rights of action which the Borrower may exercise against such Lender. 4.3 Extrajudicial and judicial actions of the Lenders Any of the Lenders may carry out acts of an extrajudicial nature for the preservation and defense of their own rights and interests and those of the other Lenders. However, the provisions of the second paragraph of Clause 20.2 shall be applicable so that a Lender may individually enforce its own rights in the courts. 4.4 Adoption and binding nature of resolutions Unless expressly provided otherwise (and, in particular, without prejudice to the individual rights established in Clauses 4.3 and 20.2), the decisions and resolutions of the Lenders relating to this Agreement and the authorizations which 13
they may grant to the Borrower in relation thereto must be adopted by the Majority of the Lenders and shall thus bind the minority. For explanatory purposes, the expressions in the opinion of the Lenders, to the satisfaction of the Lenders, with the consent of the Lenders or similar expressions which involve the taking of a decision by the Lenders must be understood as meaning that such decision shall be adopted by the Majority of the Lenders. However, it is clarified that any novation modifying or establishing this Agreement shall require the express unanimity of all the Lenders. 5. DRAWDOWN OF THE FUNDS 5.1 Request for Drawdowns Subject to the provisions of this Agreement, and subject to the prior fulfillment of the conditions established in Clauses Error! No se encuentra el origen de la referencia. and Error! No se encuentra el origen de la referencia., from the signature of this Agreement, the Borrowers may make requests for Drawdown of the Super Senior Credit Facility at any time during the Drawdown Period, by sending to the Agent a request for a Drawdown, in accordance with the standard form attached to this Agreement as Schedule 5.1, which must be received by the Agent, unless otherwise indicated in this Agreement, at least five (5) Business Days prior to the date on which it is intended to make the Drawdown in question. The request shall be irrevocable upon the receipt thereof by the Agent, the Borrowers in question being obliged to receive the funds in accordance with its terms, and must be signed by a person or persons with sufficient powers to represent the Borrowers, indicating and justifying in writing the purpose for which the amount of the Drawdown will be used. 5.2 Drawdown Period The Borrowers may make one or more Drawdowns on any Business Day during the Drawdown Period, by notifying to the Agent the relevant request for a drawdown. The enforceability of the Drawdown shall be subject to verification of the fulfillment of the conditions provided in Clause 5.3 below, all of this in accordance with the clauses of this Agreement. In accordance with Clause Error! No se encuentra el origen de la referencia., the Borrowers must fully use the funds for the purpose provided therein. Therefore, Drawdowns shall not be made until the Borrowers are, in the opinion of the Lenders, in a position to show that the funds will be applied for the intended purpose. 14
The amounts may be drawn down again, during the Drawdown Period, provided that they are repaid or returned in advance. 5.3 Conditions of Drawdown The Borrowers may request the first and subsequent Drawdowns of the Super Senior Credit Facility once the following conditions are completely fulfilled, to the satisfaction of the Lenders: (a) (b) (c) (d) (e) (f) That all the Finance Documents have entered into and are enforceable prior to or at the same time as this Agreement is also enforceable, except for the security which must be registered in a public registry for which the period of [ ] ([ ]) months from when this Agreement has become enforceable has been agreed in relation to the pledges. The request for the Drawdown must comply with the standard form of request for a Drawdown which is attached as Schedule 5.1. The request for the Drawdown shall be accompanied by the relevant supporting documentation. That no Material Adverse Change has occurred nor is it envisaged that it will occur. That the warranties and representations made in Clause 16 continue to be correct and true. In addition, the Drawdown may not lead to their ceasing to be correct and true. That none of the scenarios contained in Clause Error! No se encuentra el origen de la referencia. of this Agreement has arisen or continues to exist, nor may the Drawdown lead to such scenarios arising. The minimum amount of each Drawdown shall be [ ] euros or multiples of [ ] euros, when it exceeds the above-mentioned first amount. If the Agent reasonably considers, and states reasons in writing, that any of the above requirements is not met, it may refuse to deliver the amounts requested by the Borrowers, without such refusal being considered a breach of its obligations or of those of the Lenders under this Agreement. 5.4 Record of delivery of funds 15
The Agent may request at any time that the Borrowers show in a public document the delivery of the funds of each Drawdown under the Super Senior Credit Facility and the receipt of such funds by the Borrowers, as well as the balance of the Amount Drawn Down of the Credit Facility at any given time. The Borrowers must execute such public document within seven (7) calendar days from such request and, within the same period, must furnish to the Agent a certified copy thereof, the Borrowers bearing the costs to which all of this may give rise. 6. PURPOSE OF THE FUNDS The Borrowers shall use all the funds received from the Lenders under the Super Senior Credit Facility exclusively to finance the operating cash-flow and the working capital needs and the capital expenditure for the purposes of implementing the Viability Plan attached as Schedule II. In any event, for explanatory purposes, the funds received from the Lenders under the Super Senior Credit Facility may not be used to finance the debt of the subsidiaries excluded from the scope of the finance 3. 7. ACCRUAL OF INTEREST ON THE SUPER SENIOR CREDIT FACILITY The principal drawn down and not repaid of the Super Senior Credit Facility shall be subject to interest payable to the Lenders. The interest shall accrue from day to day, on the basis of a three hundred and sixty (360) day year, and shall be calculated according to the calendar days which have elapsed in each Interest Period, including the first day and excluding the last. 8. INTEREST PERIODS AND PAYMENT OF INTEREST ON THE SUPER SENIOR CREDIT FACILITY 8.1 Division of the Super Senior Credit Facility into Interest Periods For the purposes of the calculation of the interest, the time between the date of the first drawdown of the Super Senior Credit Facility and the Final Maturity Date of the Credit Facility shall be deemed to be divided into successive Interest Periods, the first day of each Interest Period coinciding with the day following the last day of the immediately previous Interest Period. 3 The subsidiaries excluded for the purposes of this Agreement is to be determined, which, in accordance with Schedule 1-C of the Arrangement, shall be such direct or indirect subsidiaries of Pescanova which will be decided by the management body of Nueva Pescanova, S.L. and the Consortium depending on the evolution of the business at the time of signature of this Agreement. 16
Duration of the Interest Periods. The Interest Periods, unless otherwise indicated in this Agreement, shall be six (6) months. The last Interest Period shall end, in any event, on the Final Maturity Date. Expiration of an Interest Period on a non-business day. For the calculation of the Interest Period, if the last day thereof is not a Business Day, it shall expire on the next Business Day, unless such day belongs to the next calendar month, in which case the Interest Period shall be deemed to expire on the immediately previous Business Day. 8.2 Interest rate and absolute amount of the interest The interest rate applicable to the Interest Periods into which the Super Senior Credit Facility is divided shall be fifteen percent (15%) annually to be applied in relation to the total amount drawn down and pending repayment of the Super Senior Credit Facility (having deducted the relevant partial repayments voluntarily made in advance). The Agent shall determine the absolute amount of the interest which shall be calculated in accordance with the following formula: Interest equal to fifteen percent (15%) annually of the total amount drawn down and pending repayment of the Super Senior Credit Facility (having deducted the relevant partial repayments voluntarily made in advance), multiplied by the days of the Interest Period calculated, divided by 36,000. 8.3 Procedure for establishing the interest rate Determination by the Agent and notification. The Agent shall calculate the absolute amount of interest to be paid for each Interest Period and shall notify it in writing to the Borrowers and to the Lenders within the second Business Day prior to that on which the Interest Period in question ends. Binding nature of the calculation in the absence of a manifest error. The absolute amount of interest determined by the Agent shall be binding on the Borrowers unless there is a manifest error, in which case the appropriate correction shall be made. Tacit acceptance by the Borrowers. The absolute amount of interest determined by the Agent shall be deemed to be accepted by the Borrowers unless, before 12:00 noon on the Business Day prior to that on which the Interest Period in 17
question ends, the Borrowers indicate in writing to the Agent the manifest errors contained in the initial calculation. 8.4 Payment of interest on the Super Senior Credit Facility Five percent (5%) of the interest accrued on the date of expiration of each Interest Period shall be settled and shall be paid by the Borrowers in cash on that same day before 12:00 (a.m.) into the Drawdown and Payments Account (the Cash Interest ). In relation to the remaining ten percent (10%) of the interest accrued on the date of expiration of each Interest Period, if the Borrowers does not have a sufficient amount in cash to meet the payment of this interest accrued during the aforementioned period, the Borrowers may opt not to settle such interest and to accumulate this accrued and unpaid interest, except for the amount of the relevant tax withholding on account, to the Amount Drawn Down of the Credit Facility up to the date on which the Amount Drawn Down of the Credit Facility is repaid, in whole or in part, in advance or on the Final Maturity Date, together with all other expenses and interest accrued, accumulated and unpaid, in accordance with Clause 11 (the PIK Interest ). 9. LATE-PAYMENT INTEREST 9.1 Accrual of late-payment interest on the unpaid principal Without prejudice to the provisions of Clause Error! No se encuentra el origen de la referencia. and to the possible early termination of this Agreement, the principal of the Super Senior Credit Facility due and unpaid on the Final Maturity Date shall bear, from the very date of its maturity, without any request being necessary and from day to day on the basis of a three hundred and sixty (360) day year, late-payment interest which shall be calculated by adding three percent (3%) to the fifteen percent (15%) interest rate established in Clause 8.2 above plus the margin and/or penalty which may be applied at the time of delay in accordance with the terms of this Agreement. 9.2 Accrual of late-payment interest on other unpaid items The liquid interest unpaid by the Borrowers on the Final Maturity Date, as well as any other amounts (such as fees, taxes or expenses which may be charged) shall be capitalized daily and, consequently, shall bear the late-payment interest established in Clause 9.1. 18
9.3 Settlement and payment or capitalization of late-payment interest The late-payment interest indicated in Clauses 9.1 and 9.2 shall be settled and paid by the Borrowers monthly from the date of commencement of the delay. The unpaid liquid late-payment interest shall be capitalized as an increase of principal and the same default interest shall accrue thereon again. 9.4 Procedural default interest The late-payment interest indicated in Clauses 9.1 to 9.3 shall also be the procedural default interest for the purposes of the provisions of Article 576.1 of the Civil Procedural Law (or of such other similar statutory provision which may replace it in the future). 10. CHANGE OF CIRCUMSTANCES 10.1 General declaration The Borrowers recognize and accept that the interest rate of the Super Senior Credit Facility the subject-matter of this Agreement has been agreed on the basis that the Lenders do not assume certain risks of change of circumstances and that, if such changes of circumstances occur and are capable of reducing the profitability of this transaction for the Lenders, the Borrowers must assume their impact, in accordance with the provisions of this Agreement. 10.2 Increase of costs or reduction of income Charging. If due to a provision of a law or regulations, whether or not of national origin, or due to the application thereof by the competent authorities, obligations or restrictions of any kind are imposed on the Lenders which, due to their participation in this transaction, involve for the Lenders a reduction of the income derived from the transaction or of the expected profitability thereof, or which involve an increase of the cost of the funds obtained on the interbank money market to which the Lenders resort for the financing of the Super Senior Credit Facility or an increase of the consumption of own funds or other resources, or restrictions are imposed, either on the interest rate or on the fees, of another kind, which involve a reduction of the income to which the Lenders are entitled under this Agreement, the Borrowers will be obliged to sufficiently compensate the Lenders affected. Examples of increase of costs and of reduction of income. Without being so limited, the provisions of the previous section shall be deemed to be applicable in any event to: 19
(a) (b) (c) Prudential ratios or measures. The creation of coefficients, deposits, provisions, reserves or any prudential measure. Restrictions on interest or fees. Any restriction or reduction of the amount of interest and fees. Taxes. Any tax or exchange control or similar measure which may be levied or which may increase the cost any of the assets, flows or transactions inherent in or related to the Super Senior Credit Facility the subject-matter of this Agreement. Calculation of the charge. The compensation to be borne by the Borrowers in accordance with the previous sections shall be established of the amount which the Agent may convey on the basis of the documentary justification provided by the Lender or Lenders affected. 10.3 Unforeseen infringement of the law General declaration. If any change or innovation of the legislation renders contrary to such legislation some or all of the obligations of any of the Lenders in accordance with this Agreement, the Lender in question shall so inform the Agent, who in turn shall inform the Borrowers, and that Lender shall be automatically released from such obligations without incurring any liability to the Borrowers. Adaptation of the Super Senior Credit Facility in the event of an unforeseen infringement of the law. If such change or innovation of the legislation does not affect any essential element of this Agreement, the Borrowers and the Lender affected shall negotiate in good faith with a view to mitigating the consequences of the unforeseen infringement of the law. Early repayment due to unforeseen infringement of the law. (i) If the change or innovation of the legislation affects some essential element of this Agreement and, in this case, the Borrowers and the Lender affected fail to reach an agreement regarding the solution to be adopted within a period of fifteen (15) days from when such circumstance arises; or (ii) if the Borrowers and the Lender affected fail to reach an agreement regarding the adaptation of same, in accordance with the previous section, within a period of fifteen (15) days from the notification of the circumstance which has arisen, the Lender affected may terminate this Agreement insofar as it is concerned. The Borrowers will then be obliged to repay to the Lender in question, within fifteen (15) days from when they become aware of the termination thereof (or within the shorter period which may be imposed due to the change or innovation in question) the outstanding principal together with 20
the interest accrued up to the date of payment and any other item for which they are liable under this Agreement. 10.4 Mitigation of the consequences of the change of circumstances The Lender that is affected by any change of the circumstances indicated in Clauses 10.2 and Error! No se encuentra el origen de la referencia. shall make the best efforts which are commercially reasonable in order to mitigate the consequences thereof. 10.5 Foreseeable changes of circumstances The provisions of Clauses 10.1 to 10.4 shall not cease to apply under the pretext of the foreseeable nature of the occurrence of the circumstance in question. 11. MATURITY AND REPAYMENT OF THE SUPER SENIOR CREDIT FACILITY 11.1 Repayment during the Grace Period During the Grace Period no repayment of the Super Senior Credit Facility may be made. Without prejudice to the foregoing, the Parties agree that during the Grace Period, interest shall accrue in accordance with the provisions of the Agreement. If the Borrower repays the Amount Drawn Down of the Super Senior Credit Facility during the Grace Period, either by a voluntary or compulsory early repayment regulated in Clauses 11.3 and 11.4 below, the amount to be paid by the Borrower shall be calculated in accordance with the following, without prejudice to the provisions of Clause 8 above: (a) (b) If a repayment is made in advance in the first year of the Grace Period, the amount to be repaid shall amount to the Amount Drawn Down of the Credit Facility plus a penalty of [eight] percent ([8]%) to be applied to this amount, together with the relevant interest accrued and unpaid to date. If a repayment is made in advance from the first year and a day up to the end of the Grace Period, the amount to be repaid shall amount to the Amount Drawn Down of the Credit Facility plus a penalty of [four] percent ([4]%) to be applied to this amount, together with the relevant interest accrued and unpaid to date. 11.2 Ordinary repayment 21
Without prejudice to the provisions of Clauses 11.1, 11.3 and 11.4, on the Final Maturity Date, i.e. [July] [ ], 2021 the Borrowers must fully repay in advance the amount pending repayment, if any, as well as any other amounts owed as interest or for any other reason under this Agreement in relation to the Super Senior Credit Facility. If on the Final Maturity Date the Super Senior Credit Facility has been partially repaid, the amount of such prior repayments shall be attributed in accordance with the provisions of Clauses 11.3 and 11.4 below. 11.3 Voluntary early repayment The Borrowers may make voluntary early cancellations, in whole or in part, of the principal drawn down of the Super Senior Credit Facility in accordance with the following: (a) (b) (c) (d) (e) Fulfillment of obligations. The Borrowers must be up to date with the fulfillment of their obligations in accordance with this Agreement, unless the Super Senior Credit Facility and all other outstanding items related thereto are fully repaid. Minimum amount and multiples of early cancellations. Except in the case of repayment of the full amount of the Super Senior Credit Facility, the partial voluntary early repayment may only be made for the minimum sum of [ ] euros or, if greater, in multiples of [ ] euros. Prior notice of each early cancellation. The Borrowers must have notified their intention to the Agent in writing at least five (5) Business Days prior to the date on which they are going to make the early repayment, indicating the amount and the date of the early repayment which, in any event, must coincide with the date of expiration of an Interest Period. Irrevocability of the notice of early repayment. Once the notification of an early repayment has been received by the Agent, the Borrowers decision shall be deemed to be irrevocable and the breach thereof, both in relation to date and amount, shall be considered a breach of this Agreement, without prejudice to the possible breakup costs which must be paid to the Lenders as a result of such breach. Sending of notice by the Agent to the Lenders. The Agent shall send to the Lenders the notice of early cancellation not later than the Business Day following that of the receipt thereof. 22
(f) (g) (h) (i) Absence of fees due to early cancellation. A voluntary early repayment shall not give rise to fees payable to the Lenders, provided that it has been made in compliance with the provisions of this Clause 11 and in particular the provisions of Clauses 11.1 and 11.4. Reduction of the Super Senior Credit Facility. The amounts repaid in advance in accordance with this Clause may not be drawn down again by the Borrowers. Attribution. The amounts cancelled in accordance with this Clause shall be attributed to the cancellation of the Super Senior Credit Facility. For the purposes of such reduction the early repayments made in accordance with the provisions of Clause 11.4 below shall be taken into account. If the Super Senior Credit Facility is repaid in advance upon the conclusion of the Grace Period, and for a period of one (1) year, i.e. from [January] [1], 2016 to [December] [31], 2016, for an amount which exceeds the limit indicated in Clause 11.4 (b) below, a penalty shall be applied of [four] percent ([4]%) on the amount repaid. 11.4 Partial compulsory repayment. Surplus cash (Cash Sweep) (a) (b) During the Grace Period, if there is surplus cash at Nueva Pescanova and the other Borrowers, it shall not be used for the early repayment of the Super Senior Credit Facility. Upon the expiration of the Grace Period, and for a period of one (1) year, i.e. from [January] [1], 2016 to [December] [31], 2016, Nueva Pescanova and the other Borrowers will be obliged to use for the compulsory early repayment an amount equal to ten percent (10%) of the surplus cash at the end of their financial years, above an Operating Cash Flow level of 10,000,000 euros and of 15,000,000 euros, respectively (the Amounts of the Cash Surplus ), being applied to the early repayment of the Super Senior Credit Facility. The calculation of the Amounts of the Cash Surplus shall be determined on the basis of the annual financial statements which are used for the preparation of the Certificate of Observance of Ratios and Values which the Borrowers must supply in accordance with the provisions of this Agreement. In addition, for these purposes, operating cash flow shall mean the minimum Cash to allow the maximum specific operating Cash needs of the 23
Borrower and its group of companies (including only subsidiaries included within the scope of the finance 4 ) to be covered during each period of twelve (12) months, Cash being the balances in favor of the Borrower and its group in checking accounts, credit accounts, short-term fixed-income investment funds or any type of short-term investment in monetary assets the use of which has not been committed in the current financial year. (c) From [January] [1], 2017 onwards, Nueva Pescanova and the other Borrowers will be obliged to allocate to compulsory early repayment the Amounts of the Cash Surplus (for explanatory purposes, the same calculation procedure and amounts as are referred to in section (b) above shall be followed), being applied to the early repayment of the Super Senior Credit Facility. 12. FEES 5 AND EXPENSES 12.1 Opening Fee The Super Senior Credit Facility shall incur an Opening Fee which shall amount to [ ]. 12.2 Underwriting Fee The Super Senior Credit Facility shall incur an Underwriting Fee which shall amount to [ ]. 12.3 Availability Fee The Super Senior Credit Facility shall incur an Availability Fee which shall amount to [ ] percent ([ ]%) on the Amount Not Drawn Down of the Credit Facility. The above-mentioned fee shall be paid quarterly from the date of signature of this Agreement on the base of the Amount Not Drawn Down of the Credit Facility in each quarter up to the end of the Drawdown Period, being calculated for the days which actually elapsed on the basis of a three hundred and sixty (360) day year. 4 The subsidiaries excluded for the purposes of this Agreement is to be determined, which, in accordance with Schedule 1-C of the Arrangement, shall be such direct or indirect subsidiaries of Pescanova which will be decided by the management body of Nueva Pescanova, S.L. and the Consortium depending on the evolution of the business at the time of signature of this Agreement. 5 These fees are different from that provided for the Consortium in Schedule 1 to the Arrangement. 24