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SHARE PLEDGE AGREEMENT
executed by
[NUEVA PESCANOVA, S.L.]
as Pledgor
PESCANOVA ESPAÑA, S.L.1
as the Company
and by
[THE CONSORTIUM]2
[®]
as Pledgees
[®]
as Agent
In [City], on [July] [®], [2014]
1 Pledges may also be granted over the shares of Novapesca Trading, S.L. and the international subsidiaries of Pescanova (which will be held by Nueva Pescanova following the restructuring). In the case of international subsidiaries, the valid creation of the pledges will be subject to the legislation applicable in each case. 2 The Consortium shall have a 30% stake in the Super Senior Credit Facility as Lender in accordance with the provisions of Schedule 1-A of the Arrangement with Creditors and shall take the necessary steps for the syndication of the Super Senior Credit Facility. The remaining 70% of the Super Senior Credit Facility shall correspond to the Lenders designated by The Consortium.
CONTENTS
1. Definitions and interpretation 3
2. Pledge 6
3. Pledgor’s representations, warranties and obligations 11
4. Legal rules governing the Pledge 15
5. Enforcement of the Pledge 16
6. Distribution of the proceeds from enforcement of the Pledge 24
7. Cancellation of the Pledge 25
8. Effectiveness of the Pledge 25
9. Postponement of the Pledgor’s rights 26
10. Assignment 27
11. Miscellaneous 27
12. Public document 31
13. Applicable law. Jurisdiction 31
SHARE PLEDGE AGREEMENT
In [®], on [July] [®], [2014]
Of the first part,
[NUEVA PESCANOVA, S.L.], a Spanish company, with registered office in [city], at [street], [number], registered at the [®] Commercial Registry in volume [®], book [®], sheet [®], section [®], page [®] and with employer identification number [®] (the “Pledgor” or “Nueva Pescanova”), represented in this act by [®], of age, a [®] national, with domicile in [city], at [street], [number], and with taxpayer identification number [®]. [He/She] exercises this representative authority pursuant to [a power of attorney granted / [his/her] office of [®], to which [he/she] was appointed] in a deed executed in the presence of the [city] notary, [®], on [®] [®], [®], under protocol number [®] [, and registered at the Commercial Registry].
of the second part,
PESCANOVA ESPAÑA, S.L. (“Pescanova España” or the “Company”), a Spanish company, with registered office in [city], at [street], [number], registered at the [®] Commercial Registry in volume [®], book [®], sheet [®], section [®], page [®].
and of the third part,
[®], a Spanish company, with registered office in [city], at [street], [number], registered at the [®] Commercial Registry in volume [®], book [®], sheet [®], section [®], page [®] and with employer identification number [®] (the “Agent”), represented in this act by [®], of age, a [®] national, [marital status], with domicile in [city], at [street], [number], and with taxpayer identification number [®]. [He/She] exercises this representative authority pursuant to [a power of attorney granted / [his/her] office of [®], to which [he/she] was appointed] in a deed executed in the presence of the [city] notary, [®], on [®] [®], [®], under protocol number [®] [, and registered at the Commercial Registry].
[THE CONSORTIUM] (“The Consortium”).
[®].
The Consortium and [®] shall hereinafter be referred to jointly as the “Pledgees” and individually as the “Pledgee”.
The Pledgees and the Pledgor shall hereinafter be referred to collectively as the “Parties” and individually, where applicable, as “Party”.
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The Parties mutually acknowledge their legal capacity to execute this agreement (the “Pledge Agreement”) and, accordingly,
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 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 Pescanova and of the Pescanova Group was agreed on, consisting of (i) an initial partial reduction of the total debt of Pescanova; (ii) a subsequent “modifying, non-extinguishing novation” of the repayment period for the remaining debt (rescheduling) (“Insolvency Debt”); (iii) various structural modifications that allowed for 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 Pledgees on its formation; all of the above with a view to guaranteeing the viability and continuity of the businesses and operations of Pescanova and the Pescanova Group (the “Transaction”).
II. In light of the Pledgor’s need for an injection of capital in order to make the investments set out in its viability plan, and in accordance with the agreed Transaction, the Pledgees have granted to the Pledgor, on the date hereof, 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 Pledgor (the “Secured Agreement”), a copy of which is attached hereto as Schedule II.
III. Among the conditions of the Secured Agreement, its repayment has been guaranteed by means of the creation by the Pledgor, in one and the same act as the signature of same, of a pledge over the Company shares owned by the Pledgor (or Borrower), without prejudice to the creation of a joint and several guarantee by the Guarantors (as such terms are defined in the Super Senior Credit Facility).
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IV. In accordance with Recital III above, the Pledgor has irrevocably undertaken to grant a pledge over all of the shares representing one hundred percent (100%) of the share capital of the Company. Hereinafter, the shares in Pescanova España owned by the Pledgor shall be referred to as the “Shares”.
V. Now therefore, the Parties, wishing to regulate the above pledge, have entered into the Pledge Agreement, which is subject to the following
CLAUSES
1. Definitions and interpretation
1.1 In the Pledge Agreement the following terms shall have the meanings specified below:
“Agent” means [®] or such entity as may replace it from time to time.
“Certificate” means a certificate of the balance resulting from the calculation based on the account described in clause [®] of the Secured Agreement (the contents of which are deemed to be fully reproduced herein) issued by the Agent, after calculating all amounts owed by the Pledgor for all items under the Secured Agreement, if the Qualified Majority of Pledgees approve the enforcement of the Pledge, as appropriate, by way of the judicial enforcement proceeding provided for in articles 517 et seq. of the Civil Procedure Law.
“Catalan Civil Code” means Catalan law 5/2006, of May 10, 2006, of the fifth book of the Catalan Civil Code.
“Business Day” means any day except Saturdays, Sundays or public holidays in [®].
“Financial Rights” means any economic right, including the Pledgor’s right, as the owner of the Shares, to receive dividends or any other payment, as applicable, and, in general, any other derived economic right.
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“Transaction Documents” means [®], the Secured Agreement and all such documents as may amend or implement the provisions of any of the foregoing documents and agreements in the future.
“Pledge Agreement Date” means the date on which the Pledge Agreement is executed, as appears first above written.
“Maximum Amount” means [®]3.
“Qualified Majority of Pledgees” means the Pledgees whose participation in the outstanding amounts in respect of the Secured Obligations on the date on which they have to adopt the relevant decision exceeds seventy-five percent (75%).
“Majority of Pledgees” means the Pledgees whose participation in the outstanding amounts in respect of the Secured Obligations on the date on which they have to adopt the relevant decision exceeds sixty-six percent (66%).
“Secured Obligations” means all of the obligations of the Pledgor arising from the “Syndicated Super Senior Credit Facility” signed on the date hereof, referred to herein as the Secured Agreement.
“Pledge” means the pledge created over the Shares by virtue of the Pledge Agreement.
“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 Secured Agreement, and a subsequent declaration of early termination in accordance with the provisions of clause [®] of the Secured Agreement.
“Documents of Title” means [indicate the deeds and agreements by virtue of which the Pledgor is the owner of the Shares].
1.2 Interpretation
In the Pledge Agreement, unless indicated otherwise: 3 In any case, the Maximum Amount shall be, at minimum, the Maximum Amount of the Credit Facility (as such terms are defined in the Super Senior Credit Facility).
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(i) Any reference to the Pledge Agreement must be deemed to be made to the Pledge Agreement and its schedules.
(ii) Any reference to “clause” or to “schedule” must be deemed to be made to a clause of, or schedule to, the Pledge Agreement.
(iii) Any reference to a “person” includes any individual, legal entity, entity, organization, association without legal personality, or public authority.
(iv) Wherever the terms “includes”, “included”, “include” and “including” are used, they shall be deemed to be followed by the expression “without limitation”.
(v) Any reference to one gender includes the other, and words in the singular shall include the plural, and vice versa.
(vi) If an obligation is qualified or formulated by reference to the use of “reasonable endeavors”, “best endeavors” or another similar expression, it refers to the endeavors that a person with the firm intention to achieve an outcome would use in similar circumstances to ensure the achievement of such outcome as soon as possible, taking into account, among other factors:
(a) the price, financial interest and other terms of the obligation;
(b) the degree of risk normally entailed by the achievement of the expected outcome; and
(c) the ability of an unrelated person to exert an influence on the performance of the obligation.
(vii) Any reference to “days” shall be deemed to be made to “calendar days”. Any periods expressed in days shall start to be counted from the day immediately following that on which the counting starts. If the last day of a period is not a Business Day, the period in question shall be deemed to have been automatically extended until the first following Business Day. Periods expressed in months shall be counted from date to date unless in
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the last month of the period such date does not exist, in which case the period shall end on the following Business Day.
(viii) Any reference to “from” or “as from” a given date shall be understood to include such date.
(ix) The headings used in the Pledge Agreement are included for reference only and shall not form part of the Pledge Agreement for any other purpose or affect the interpretation of any of its clauses.
2. Pledge
2.1 Creation of the Pledge
In order to secure the exact and timely fulfillment of the Secured Obligations, and without prejudice to the personal liability of the Pledgor under the Secured Agreement, which shall not be affected in any way by the creation of the Pledge or by any other guarantee or security interest or security of any other nature granted in relation to the Secured Obligations, the Pledgor hereby creates and grants a pledge over the Shares of the Company (the Pledge) to the Pledgees, subject to the terms and conditions established in the Pledge Agreement.
The Pledge ensures and secures the fulfillment of all of the Secured Obligations assumed by the Pledgor by virtue of the Secured Agreement for any item up to the Maximum Amount.
2.2 Evidence of absolute ownership of the Shares
For the purposes of the provisions of article 569-13.1 b) of the Catalan Civil Code, the Pledgor represents that it is the lawful and absolute owner of the Shares by virtue of the Documents of Title.
The terms and conditions of the Secured Obligations secured by the Pledge are as set forth and agreed in the Secured Agreement, of which the Pledgor represents that it has knowledge and which it fully accepts, without any restrictions or reservations whatsoever. The Parties hereby agree that the Pledge Agreement shall not change, amend or alter any of the terms and conditions of the Secured Agreement or of any other Transaction Documents.
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This Pledge constitutes ongoing security and, as such, shall remain in full force and effect until the Secured Obligations have been paid in full or extinguished.
The Pledge is in addition to, and independent from, any other charge, security or guarantee, right or remedy held now or in the future by the Pledgees in relation to the Secured Obligations. Accordingly, it may be enforced on an independent and separate basis, before or after any other enforcement proceeding in relation to the charge, security, guarantee or remedy in question that may be brought by the Pledgees until the Secured Obligations are fully satisfied.
The Pledgees accept the Pledge in this same act and it has full effect from the Pledge Agreement Date.
2.3 Enforcement of the Pledge vis-à-vis third parties
The notarization of the Pledge Agreement shall make it enforceable against third parties in accordance with the provisions of article 569-13.2 of the Catalan Civil Code.
2.4 Additional steps and documentation
On first demand by the Agent, the Pledgor undertakes, at its own cost and expense, to take and perform all such steps and acts and to formalize all such public and private documents, agreements, notary-attested agreements and instruments as may be necessary in relation to the maintenance, perfection and protection of the Pledge or in relation to any change, alteration or amendment of the Secured Agreement or of the other Transaction Documents.
For these purposes “Pledge” shall be interpreted to include all such amendments, corrections and supplements thereto as may be occur from time to time.
2.5 Transfer of possession
In order to validly and effectively create the Pledge and observe the provisions of article 569-13.1 a) of the Catalan Civil Code, possession of the Shares to the Pledgees shall be transferred as follows:
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(i) The Pledgor shall produce the first authentic copy of the Documents of Title to the Agent and the notary.
(ii) The Borrower shall then ask the attesting notary to make the appropriate reference to the creation of the Pledge in the Documents of Title.
Once such reference has been made to the Pledge in the Documents of Title, such instruments shall be delivered to the Agent, which shall keep them for the duration of the Pledge, as a bailment of movable property.
Additionally, simultaneously to the grant of the Pledge Agreement, the [secretary of the board of directors/sole director/director acting severally/joint director] of the Company shall record the Pledge on the Company’s register of shareholders and deliver a certificate to the Agent, a copy of which certificate is attached as Schedule 2.5.
The Parties hereby agree that the recording of the Pledge on the Company’s register of shareholders and in the Documents of Title shall have the effects of transfer of possession in accordance with the provisions of article 569-13.1 a) of the Catalan Civil Code.
The Parties also hereby ask the authorizing notary to inform the notary who authorized the Documents of Title, so that any copy of the deed or certificate issued in relation to such deed is duly annotated or indicates the existence of the Pledge created under the Agreement.
2.6 Extension of the Pledge (antichresis)
The Pledge shall extend to the Financial Rights of the Shares. The Pledge shall also automatically extend to any other kind of asset (tangible or intangible), share, security or fund that may replace, be exchangeable for, or inherent in, the Shares in the event of a merger, division, spin-off, dissolution, liquidation, capital increase or reduction, conversion or exchange of the Shares, change of status, division or similar event affecting the Company, cash or claims convertible into cash.
Where the Pledgor acquires any shares representing the share capital of the Company by any means other than subscription (regulated in clause 2.7.3 below),
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the Pledgor undertakes to extend the Pledge to the new shares within a period of ten (10) business days as from the effective date of acquisition, for which purposes a supplement to the Agreement shall be executed in a public document attested by a Spanish public authenticating official and in accordance with the provisions of clause 2.7.3 below.
Where, in accordance with the preceding paragraph, the Pledge is extended to cash or claims convertible into cash, the amount in question shall be deposited in an account opened in the name of the Pledgor with the Pledgees (or the Agent) and shall remain pledged in favor of the Pledgees on the same terms and conditions provided for in the Agreement mutatis mutandis. Where the Pledge is enforced with respect to such amount in accordance with an Enforcement Event, the enforcement shall operate by offsetting the Secured Obligations pending payment.
The Pledgor shall confer on the Agent a representative mandate so that, where the Pledgor cannot do so in a period of ten (10) business days from the request made by the Pledgee for such purpose, the Agent may execute all such public or private documents as may be necessary to formalize such extension, even in the event of self-contracting and with dispensation for same. This mandate is necessary for the fulfilment of the Secured Obligations and, as a result, shall be irrevocable until such time as the Pledge is cancelled or the Secured Obligations are extinguished, if sooner.
Any reference made to the Shares in the Agreement shall be deemed made to any asset, right, instrument, security, fund or object which, by virtue of the provisions of this clause, substitutes the Shares or is exchangeable for, or inherent in, the Shares.
2.7 Exercise of the rights inherent in the Shares
2.7.1 Financial Rights inherent in the Shares.
Without prejudice to clause 2.6 above and the following paragraph, the Financial Rights of the Shares relating to the Shares subject to the Pledge from time to time shall belong to the Pledgor (notwithstanding the Pledge).
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2.7.2 Voting rights corresponding to the Shares.
The voting rights corresponding to the Shares subject to the Pledge from time to time shall belong to the Pledgor and shall be exercised so as to ensure the fulfillment of the Secured Obligations.
Without prejudice to the foregoing, the Pledgor agrees to vote against any corporate resolution (including any resolution the purpose of which is to amend the bylaws of the Company in relation to the Shares) that may have an adverse effect on the validity or enforceability of the Pledge or give rise to a breach by virtue of the Transaction Documents, unless it has the prior written consent of the Pledgees.
Notwithstanding the foregoing, if an Enforcement Event occurs, the Pledgees shall be entitled, but not obliged, to exercise the voting rights corresponding to the Shares or to request that the Pledgor exercise them strictly following any instructions given to the Pledgor for such purposes by the Agent.
[For such purposes, the Pledgor undertakes to deliver to the Agent, in a period of [two (2) months] from the signature of the Pledge Agreement, a certificate from the competent Commercial Registry certifying that the current wording of article [●] of the Company bylaws is as follows:
“In the event of the pledge of Company shares, all shareholder rights shall correspond to the owner of such shares. However, the shareholder rights shall correspond to the pledgee with the sole declaration by the pledgee in a public document of the breach of any of the obligations secured by the pledge, regardless of its nature and independently of whether or not this gives rise to the resolution of the obligation, its early termination or enforcement of the pledge.”]
2.7.3 Capital increases.
If a capital increase takes place at the Company while the Pledge remains in force, the Parties agree that in order for the value of the Pledge not to be reduced, the Pledgor shall fully exercise its preemptive right, subscribing all of the shares in the capital and simultaneously paying in
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their par value plus any share premium, with the Pledge thereby created extending to the new shares subscribed by the Pledgor.
Without prejudice to the automatic nature of the extensions indicated above, the Pledgor undertakes:
(a) To appear within [five (5)] calendar days from the date on which the relevant capital increase is registered at the Commercial Registry before a notary of its choosing with a view to implementing the extension of the Pledge to the new shares of the Company. The extension of the Pledge must be formalized on conditions identical to those stipulated in the Pledge Agreement.
(b) To instruct the notary attesting the extension document to make a note of the creation of the Pledge on the new shares in the first copy of the capital increase deed at the time of its execution.
(c) The Pledgees accept in this act any pledge over new shares that the Pledgor may create in compliance with the provisions of the preceding paragraphs.
2.8 Prohibition on the disposal of the Shares
The Pledgor undertakes not to sell, transfer, assign or dispose of the Shares without the prior written consent of all of the Pledgees, and not to create any charge or encumbrance, grant any option or impose any restrictions on the transferability of the Shares.
3. Pledgor’s representations, warranties and obligations
3.1 Pledgor’s representations and warranties
The Pledgor represents and warrants to the Pledgees (and the Pledgees rely on such representations and warranties, which the Parties considered essential for the purposes of the Pledge Agreement) that:
(a) the Pledgor and the Company are companies that are duly formed, validly existing and in a regular situation by virtue of the applicable legislation;
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(b) it is the lawful, absolute owner of the Shares;
(c) the Pledge is the only charge or encumbrance attaching to the Shares;
(d) it has all necessary authorizations to hold the Shares and to fully exercise the rights (both financial and otherwise) under the Shares;
(e) where appropriate, it has adopted, on an irrevocable and permanent basis, all corporate resolutions and steps necessary for the execution and performance of the Pledge Agreement so that the obligations entered into are valid, binding and enforceable according to their terms;
(f) the performance and fulfillment by the Pledgor of the obligations assumed by it under the Pledge Agreement do not: (i) infringe any statutory or regulatory provision, or any court or administrative decision applicable to the Pledgor; (ii) infringe the provisions of the deed of formation or the bylaws of the Pledgor or of the Company; (iii) breach any document, decision or notary-attested agreement that is binding on the Pledgor; and (iv) require any authorization, consent, approval or license from any third party or public agency;
(g) it has knowledge of the contents of the Secured Agreement;
(h) the formalization of the Pledge Agreement is valid, legal and binding on the Pledgor and creates a first-ranking security interest over the Shares in favor of the Pledgees to secure the Secured Obligations;
(i) the Company has not issued or granted any options, guarantees, securities or rights of any kind that continue to be valid and enforceable and that could enable any third party to enforce them over the Shares and, therefore, claim ownership of, or any right over, the Shares;
(j) there are no restrictions on the transfer of shares, other than those established by law;
(k) the Pledge does not infringe any regulation, decree, ruling or order issued by any regulatory body, whether at local, regional or national level; and
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(l) the Shares represent one hundred percent (100%) of the share capital of the Company.
The representations and warranties included in this clause 3.1 are made and given on the Pledge Agreement Date and on the date the Pledge over any future shares of the Company is perfected, with reference to the facts and circumstances existing from time to time.
3.2 The Pledgor’s obligations
The Pledgor undertakes:
(a) not to take, or permit the taking of, any step that may impair the rights under the Pledge in favor of the Pledgees (the priority of the Secured Obligations, enforceability of the Pledge, legal nature of the Shares, rights attaching to them or the like);
(b) not to sell, transfer, encumber, create any preemptive right over, exchange or otherwise dispose of the Shares, or accept the creation or imposition of any charge or encumbrance, right or option or restriction on the transferability4 of the Shares until the Secured Obligations have been unconditionally and irrevocably satisfied in full and the Pledge has been fully released;
(c) to keep the Pledge and its priority in force and, in particular, to take any step or sign any public or private document that may be required by the Agent in order to keep the Pledge and its priority in force;
(d) to take all such steps as may be required of it in order to fulfill the formalities necessary to create and formalize the Pledge established in the Pledge Agreement;
(e) to notify the Agent of any situation that could lead to a formal insolvency proceeding involving the Company;
4 The bylaws shall not contain transfer restrictions in the case of enforcement of the Pledge.
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(f) to immediately notify any breach of its obligations under the Pledge Agreement or under the Secured Agreement and/or the Transaction Documents, as well as the occurrence of any other circumstance that may affect the Pledge;
(g) at any time, at the request of the Agent and at the sole cost and expense of the Pledgor, the Pledgor must, in the shortest time possible, sign, seal, execute, grant and perform all such deeds, notary-attested agreements, notices, documents and acts as may be reasonably required in each case by the Agent by reason of their being necessary for the enforcement of the Pledge and for the exercise of all of the powers and authority conferred on the Agent by the Pledge Agreement, the Transaction Documents or the applicable legislation; and
(h) to exercise its voting rights so that:
(i) no resolution is adopted or implemented (i) to increase share capital if it could imply the exclusion of the preemptive right or the use of its preemptive rights in a way that could cause a reduction in its percentage of the Company’s share capital; (ii) to alter the legal form of the Company; (iii) to issue or create new classes or series of shares of the Company; (iv) to reduce share capital by returning contributions; and/or (v) to have the Company issue or grant guarantees, securities or rights of any kind;
(ii) the Company fulfills its contractual, tax, legal and environmental obligations and, in general, any other obligations under the Secured Agreement and/ or the Transaction Documents;
(iii) the Financial Rights arising in favor of the Company are subordinated to fulfillment of the obligations assumed by the Company by virtue of the Transaction Documents.
(i) not to formalize any contract that could infringe or entail a breach under the Secured Agreement and/or the Transaction Documents or under the Pledge Agreement.
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4. Legal rules governing the Pledge
4.1 Indivisibility with respect to the Pledgees.
The Pledgees are co-holders of the Pledge granted in proportion to their respective stakes in the Secured Agreement. None of the Pledgees may cancel or extinguish the Pledge in whole or in part until all of the Secured Obligations have been entirely fulfilled and all of the Pledgees have been satisfied.
4.2 Indivisibility with respect to the Pledgor.
The Pledge secures the fulfillment of all of the Secured Obligations and the Pledgee shall not be entitled to seek the partial release of the Pledge in the event of partial fulfillment of any of the Secured Obligations. The Pledgor shall only be entitled to seek the release of the Pledge when all of the Secured Obligations have been satisfied in full.
4.3 Subsistence of the Pledge
Invalidity or ineffectiveness of the Secured Obligations. If any of the Secured Obligations is declared wholly or partially ineffective or void as a matter of law, the Pledge created hereunder shall secure the full and timely fulfillment by the Pledgor of all monetary restitution and reimbursement obligations claimable as a result of such voidness or ineffectiveness.
Invalidity or ineffectiveness of the payment of the Secured Obligations. The Parties agree that the Pledge shall remain fully in force, valid and effective in the event that, after all the Secured Obligations have been paid, such payment is later adjudged to be void or ineffective in the course of a formal insolvency proceeding against the entity that made the payment (whether [®], the Pledgor, or any other entity with the consent of the Pledgees), and that such declaration of invalidity occurs prior to the execution by the Pledgees of the documents cancelling the Pledge.
4.4 Assignment of legal rights and remedies to the Pledgees
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As a result of the Pledge granted, the Pledgor assigns to the Pledgees any legal rights and remedies that the Pledgor may evidence against third parties.
By virtue of the foregoing and the provisions of article 1869 of the Civil Code, the Pledgees are, through the Agent, irrevocably authorized by the Pledgor to seek such remedies as they may be entitled to as owners of the collateral in order to claim them or defend them against third parties.
The Pledgor agrees to provide as much cooperation as may be requested of it by the Pledgees through the Agent for such purpose.
5. Enforcement of the Pledge
5.1 Requirements for enforcement of the Pledge
In order for the Pledge to be enforced an Enforcement Event must occur and the Pledgor must not have legally challenged the demand for payment of the Secured Obligations, providing evidence that the value of the amounts claimed has been deposited or secured within a period of one (1) month of the demand.
5.2 Authority to enforce the Pledge and to exercise and seek the legal rights and remedies assigned
5.2.1 Enforcement by the Qualified Majority of Pledgees.
In addition to fulfilling the requirements established in clause 5.1 above, the enforcement of the Pledge and the exercise of the rights thereunder shall require a resolution by the Qualified Majority of Pledgees.
The resolution in favor of enforcing the Pledge must include precise instructions from the Agent on the manner of enforcing the Pledge or provide that such instructions shall be given in a later resolution, to be adopted by the Qualified Majority of Pledgees.
The Pledgees give their consent and accept all such decisions as may be made by the Qualified Majority of Pledgees in the future on the enforcement of the Pledge and the exercise of the rights thereunder.
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5.2.2 Exercise and seeking of the assigned rights and remedies.
The exercise and seeking of any legal rights and remedies held by the Pledgor against third parties, including those under the Shares, and which have been assigned by virtue of the Pledge Agreement shall not be considered as an enforcement of the Pledge and shall therefore only require a resolution by the Majority of Pledgees. A prior declaration of the early termination of the Secured Agreement shall not be necessary.
All of the Pledgees hereby authorize the Agent so that it may, for and on behalf of all of the Pledgees, take steps and implement such decisions as may be made by the Majority of Pledgees to preserve and/or protect the Shares, perform acts to maintain the Shares and, inter alia, make out-of-court claims.
5.2.3 Enforcement of the Pledge by the Agent.
Once a decision has been made in this regard by the Qualified Majority of Pledgees, the Agent shall be the sole entity authorized to seek the enforcement of the Pledge, in accordance with the terms and conditions of the Pledge Agreement.
All of the Pledgees agree to confer on the Agent the powers of attorney required by the Civil Procedure Law and other applicable legislation so that the Agent may act in their name in the court proceedings brought for the enforcement of the Pledge. If these powers of attorney cannot be granted, the Pledgees shall appear alongside the Agent whenever necessary.
All of the Pledgees hereby empower and authorize the Agent so that it may, in the name of all of the Pledgees, send the pertinent notices and documents relating to the enforcement of the Pledge.
5.3 Calculation of the amount of the Secured Obligations
5.3.1 Determination of amounts due. For the purposes of the provisions of articles 572.2 and 573 of the Civil Procedure Law, it is agreed that the amount owed to the Pledgees from time to time under the Secured
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Agreement shall be the amount specified in the certificate issued for such purpose by the Agent in the name of the Pledgees, per the books and accounting records of the account associated with the Secured Agreement. In any event, the Agent shall previously notify the Pledgor of the amount claimable.
5.3.2 Notification of the enforcement resolution and of the amount of the Secured Obligations. In order to enforce the Pledge, the Agent must previously send the Pledgor a certificate, which shall have the effects provided for in articles 572.2 and 573 of the Civil Procedure Law. For the above purposes, the Parties agree that delivery by the Agent of such certificate establishing the occurrence of a default event or ground for early termination shall be sufficient evidence of the existence of the Enforcement Event.
5.3.3 Full or partial calculation, without waiver. The calculation by the Agent may include some or all items under the Secured Obligations, in accordance with article 573.3 of the Civil Procedure Law, without such circumstance implying any waiver whatsoever and, in particular, as regards any fees or other amounts owed by the Pledgor, as the case may be. For the purposes of enforcing the Pledge, the amount that is liquidated, due and payable from time to time shall be the amount calculated by the Agent on the basis of the account described in clause [®] of the Secured Agreement, which calculations shall be made by the Agent in conformity with the provisions of the Secured Agreement.
5.3.4 Certification in a notarial document. Notification to the Pledgor. The certificate issued by the Agent must be included in a notarial certificate or attested by a notary.
5.3.5 Fulfillment of statutory requirements. In order to bring a legal action for enforcement, in addition to the above provisions, the requirements established in articles 572 et seq. of the Civil Procedure Law must be fulfilled.
5.3.6 Opposition by the Pledgor. The Pledgor may not oppose the calculations made by the Agent except in the cases set forth in article 557 of the Civil Procedure Law.
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5.4 Partial enforcement
The Parties agree that the Pledge may be partially enforced.
5.5 Costs and expenses incurred in the enforcement of the Pledge
The Pledgor shall bear all expenses, costs and taxes arising from or incurred as a result of judicial proceedings or nonjudicial procedures relating to the Pledge Agreement, including, inter alia, the following:
(i) any court fees that the Pledgees are obliged to pay as a result of the above-mentioned proceedings; and
(ii) any expenses incurred by reason of any attestation by a notary that may be required with respect to the documents attached to the relevant application for enforcement.
5.6 Enforcement of the Pledge by way of a judicial enforcement proceeding
Where the Qualified Majority of Pledgees approves the enforcement of the Pledge by way of the judicial enforcement proceeding provided for in articles 517 et seq. of the Civil Procedure Law, the Agent shall calculate all amounts owed by the Pledgor for all items under the Secured Agreement and shall issue a Certificate. The Certificate shall be attested by a public authenticating official.
In conformity with the provisions of articles 572 and 573 of the Civil Procedure Law, the amount due and payable in the event of enforcement of the Pledge shall be the amount indicated in the Certificate issued by the Agent. The balance resulting from that calculation shall be the liquidated, due and payable amount, shall constitute admissible evidence in court, and shall be effective for all legal purposes.
The Parties expressly agree that in order to bring an action to enforce the Pledge it shall be sufficient to file the Pledge Agreement accompanied by: (a) the Certificate issued by the Agent and attested by a public authenticating official, containing the calculation of all amounts owed by the Pledgor under the Secured Agreement; and (b) the document(s) evidencing notification of the amount due and payable.
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The amount due and payable shall be increased by any interest (ordinary, default or any other kind of interest), costs and expenses, fees, indemnification or any other amounts accrued from the date of issue of the Certificate until the date(s) on which the Pledge is enforced.
The other steps must comply with the provisions of articles 517 et seq. of the Civil Procedure Law.
These documents shall have the effects established in articles 572 et seq. of the Civil Procedure Law.
The proceeds from enforcement of the Pledge shall be applied in accordance with the provisions of clause 5.10 below.
5.7 Judicial enforcement of the Pledge by a specialist entity or person
For the purposes of article 641 of the Civil Procedure Law and in light of the nature of the Shares, the Pledgor hereby expressly consents to the Agent seeking to enforce the Pledge by using a specialist entity or person, subject to the following rules:
(i) Appointment of the specialist entity or person. The Agent shall designate a prestigious national or international securities broker specializing in the trading of similar securities.
(ii) Alternative disclosure. If the specialist entity considers that the indiscriminate disclosure of the sale would seriously impair the value of the Shares, such disclosure shall not be made and shall be substituted by a formal invitation in writing to a sufficient number of potential purchasers, which shall include any that the Pledgor may reasonably request.
(iii) Bids by the Pledgees. The Pledgees may also submit bids.
(iv) Unrestricted price. Article 641.3 of the Civil Procedure Law shall apply for the purposes of the minimum price of 50% of the valuation of the Shares.
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(v) Supplemental rules. Where no provision is made in the preceding points, the procedure for sale through a specialist entity shall be governed by the provisions of Section 4, Chapter IV, Part VI of Book Three of the Civil Procedure Law and, failing that, by the practices followed for the sale of shares and in accordance with the reasonable opinion of the attesting notary or the court, as the case may be.
(vi) Batches. The Pledge may be enforced against all of the Shares or against batches of these securities.
5.8 Enforcement of the Pledge by direct sale
Where the Pledgees decide to follow the direct sale procedure provided for in article 569-20 of the Catalan Civil Code, the Parties agree as follows:
(i) Reference price of the Shares. The reference price of the Shares for the purposes of the direct sale shall be equal to the value resulting from applying the percentage holding corresponding to the Shareholder in question to the net book value of each one of the Shares. The net book value of the Shares shall be that resulting from the last financial statements approved and, where such amount is negative or there are no approved financial statements, the starting amount shall be equal to the par value of each one of the Shares.
(ii) Appropriation or sale to third parties. The Pledge may be enforced, at the election of the Pledgee, by appropriation of the Shares by the Pledgee or by their sale to third parties.
(iii) In the event of enforcement by means of sale of the Shares:
(a) The Pledgee shall take the necessary measures to dispose of or transfer the Shares directly to a third party and in all cases for an amount not lower than the enforcement value of the Shares provided for in paragraph (i) above;
(b) the Pledgor shall appoint the Pledgee so that, even in the event of self-contracting (a scenario which the Pledgor states it is expressly aware of and accepts), it may act as mandatary to represent the
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Pledgor in the disposal of the Shares as seller, and the Pledgor shall irrevocably authorize the Pledgee to execute any public or private documents necessary to formalize the transfer of the Shares for and on its behalf;
(c) at the discretion of the Pledgee, it may enforce the Pledge with respect to all of the Shares at the same time or enforce the pledge partially or successively with respect to different packets of Shares until the relevant Secured Obligations have been repaid in full to the Pledgee;
(iv) Where the Pledgee opts to appropriate the Shares, they shall be paid in by offsetting the amount owed to the Pledgee. In all cases, if the value obtained from the enforcement of the Pledge is higher than the net due amount owed to the Pledgee by virtue of the Secured Obligations, the Pledgee shall deposit such excess in an account expressly indicated by the Pledgor.
(v) The direct sale procedure may not last for a period of more than six (6) months from its commencement with a notice served on the Pledgor indicating the Pledgee’s intention to commence the direct sale procedure.
(vi) For the purposes of the provisions of article 155.4 of Insolvency Law 22/2003, of July 9, 2003, the Parties agree that the price established in paragraph (i) above shall be the minimum price for the direct sale of the Shares.
5.9 Enforcement of the Pledge before a notary
In the event of enforcement using the procedure provided for in article 569-20.4 of the Catalan Civil Code, the following rules shall apply:
(i) Competent notary. Any notary belonging to the Barcelona Notaries Association and designated by the Agent shall be competent.
(ii) Notice of public auction. Auctions must be advertised at least fifteen (15) days in advance of the date of the auction in the Official Journal of the Catalan Autonomous Community Government (Diari Oficial de la
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Generalitat de Catalunya) and in one of the daily newspapers with a broad circulation in the municipality in which the auction is going to be held.
(iii) Notification to the Pledgor. The auction shall also be notified to the Pledgor at least [fifteen (15)] days in advance of the date of the auction, together with the identifying particulars of the notary designated by the Agent.
(iv) Deposit. In order to be able to participate in the auction, an amount equal to [[®] percent ([®]%)] of the starting price must be deposited, in cash or by way of a certified check, in the municipality in which the auction is to be held at least two (2) Business Days in advance. Unsuccessful bidders shall be refunded the deposit made in order to participate in the auction within three (3) Business Days following the auction. The deposit made by the winning bidder shall be retained in part payment of the price. If that amount is not paid, the amount deposited shall be used to pay the Secured Obligations.
(v) First auction and reserve price. Positions lower than the secured debt plus twenty percent (20%) for the expenses generated by the procedure shall not be admitted at first auction. At second auction, the reserve price shall be seventy-five percent (75%) of the amount of the first auction and the auction shall be awarded to the highest bidder. The auction may also be conducted by way of assignment to a third party.
(vi) Successive no-reserve auctions at the discretion of the Agent. If the first auction is declared unsuccessful, the Agent may request a second and other successive auctions with no reserve price requirement for such auctions.
(vii) Right of the Pledgees to bid as third parties and not as creditors. The Pledgees may attend and bid at auctions with the same rights and obligations as a third party and, in any case, subject to the principles of transparency, individuality and uncertainty as regards the outcome of the bidding and the award. If the Pledgees that bid pursuant to the above are successful, they shall give an acknowledgment of receipt only for the amount of their bid, rather than for the total debt. The Pledgees need not make any deposit whatsoever in order to participate in auctions.
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(viii) Acquisition of the Shares by the Pledgees in payment of the debt. If the second or subsequent auctions are declared unsuccessful, the Pledgees may bring them to an end, awarding themselves the Shares in payment of their collection rights. In this case, the Pledgees shall be obliged to issue a receipt for the entire amount of the debt.
(ix) Subsistence of the Pledge. While the auctions are declared unsuccessful and the Pledgees have not awarded themselves the Shares in conformity with paragraph (viii) above, the Pledge created under the Pledge Agreement shall remain in force to secure the Secured Obligations.
(x) Batches. The Pledge may be enforced against all of the Shares or against batches of these securities.
(xi) Supplemental rules and decision-making by the notary. In all other respects, the auction shall be governed by the provisions applicable to the Pledge and, failing that, by the reasonable opinion of the notary.
5.10 Enforcement proceeds
All amounts obtained from enforcement of the Pledge shall be distributed in accordance with the provisions of the Pledge Agreement.
6. Distribution of the proceeds from enforcement of the Pledge
The following rules shall apply to the enforcement of the Pledge as regulated in the above clauses .
6.1 Order of priority in payment of the Secured Obligations
The proceeds from enforcement of the Pledge shall be allocated in the following order of priority:
(i) payment of the costs and expenses incurred in the enforcement of the Pledge;
(ii) payment in full of all outstanding Secured Obligations under the Secured Agreement; and
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(iii) reimbursement of any residue to the Pledgor.
6.2 Rules of allocation. Partial payment
The proceeds from enforcement of the Pledge shall be used to pay the obligations described in subclauses (i) to (iii) of clause 6.1 above, and the obligations in each subsequent subclause may only be paid where all of the obligations in the immediately preceding subclause have been paid, following the strict order of priority indicated.
If, in relation to any of the above subclauses, the proceeds from enforcement of the Pledge fall short of the total amount of the outstanding obligations referred to in that subclause, the proceeds shall be used to partially pay such obligations. Each of the Pledgees shall be entitled to the amount resulting from multiplying the proceeds from enforcement of the Pledge by the percentage of their respective commitment in respect of the outstanding payment obligations mentioned in each subclause.
7. Cancellation of the Pledge
The Pledge shall be cancelled once all of the Secured Obligations have been fully satisfied. Once the Secured Obligations have been fully satisfied, the Pledgees shall execute any public documents that may be necessary to cancel the Pledge at the expense of the Pledgor and within [fifteen (15)] Business Days following receipt of a written request from the Pledgor for such purpose.
8. Effectiveness of the Pledge
Unless otherwise provided for by a mandatory legal provision, the obligations entered into by the Parties under the Pledge Agreement shall not be affected by any act, omission, matter or issue which, save as provided for in this clause, reduces, releases or affects any of the respective obligations incumbent on them by virtue of the Pledge Agreement and/or the Secured Agreement (without any limitation whatsoever and regardless of whether the parties thereto or any of the Pledgees have notice of such act, omission, matter or issue) including:
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(a) any time period, waiver or consent granted to the Pledgor, to any obligor under the Secured Obligations, or to any other person;
(b) the release of any obligor from the Secured Obligations or of any other person under the terms of any settlement or arrangement with any creditor of any member of the group of, or related to, the Pledgor;
(c) the acceptance, variation, settlement, exchange, extension or release of, or refusal or failure to perfect, assume or enforce, any rights against any obligor under the Secured Obligations or any other person, or security over the assets of any obligor under the Secured Obligations or any other person;
(d) any incapacity or lack of power, authority or legal personality, or the dissolution or change of ownership or alteration of legal form, of an obligor under the Secured Obligations or of any other person;
(e) any amendment (regardless of its scope), novation or substitution of the Secured Agreement or of any other document or security;
(f) any ineffectiveness, unlawfulness or nullity of any obligation of any obligor under the Secured Agreement or any other document or security; or
(g) any situation of formal insolvency or similar proceeding.
The contents of the Pledge Agreement do not in any way seek to impair or affect, nor shall they be implemented in a way that impairs or affects, rights over any guarantee, indemnification or other kind of security granted to the Pledgees to secure any right, remedy or privilege available to them.
9. Postponement of the Pledgor’s rights
Until such time as all of the Secured Obligations have been irrevocably satisfied in full, the rights indicated below, among others, to which the Pledgor or any obligor under the Secured Obligations may be entitled in the fulfillment of their obligations under the Secured Agreement, shall remain subject to the prior, full and irrevocable satisfaction of the Secured Obligations.
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The rights of the Pledgor that are subordinated in accordance with the provisions of the preceding paragraph are, inter alia, as follows:
(a) the right to receive indemnification from an obligor under the Secured Obligations; or
(b) the right to benefit (in whole or in part, and whether by way of subrogation or otherwise) from any right of the Pledgees by virtue of the Secured Agreement or from any security or other guarantee assumed by virtue of the Secured Agreement, or in relation thereto, by the Pledgees.
In any case, in the event of the total or partial enforcement of the Pledge and subsequent transfer of the Shares, the Pledgor hereby waives any claim against the obligors under the Secured Obligations which may arise as a result of such enforcement or under the Secured Obligations, as the case may be, even where the obligations have been fully satisfied. Likewise, the enforcement of the Pledge shall not give rise to any rights for the Pledgor against the Pledgees or against the awardees of the Shares.
10. Assignment
The Pledgor may not assign or encumber its rights or obligations under the Pledge Agreement without the prior written consent of the other Party.
The Pledge is granted for the benefit of the Pledgees and for the benefit of their successors or assigns permitted under the Secured Agreement and the Pledgor henceforth authorizes the assignment of the Pledge Agreement to such entities and the substitution of the Agent as provided for in the Secured Agreement, in which case the references made in this public document to “Pledgees” and to “Agent” shall be deemed made to their successors or assigns.
11. Miscellaneous
11.1 Entire agreement
The Pledge Agreement supersedes all other agreements or contracts, written or oral, concluded between the Parties prior to the execution of the Pledge
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Agreement in relation to the transaction contemplated herein, and which shall be rendered null and void from the Pledge Agreement Date.
11.2 Amendments
Any amendment to the Pledge Agreement that is not set forth in writing or formalized by the Parties in the same manner as the Pledge Agreement shall be null and void.
11.3 Partial invalidity
(i) Any finding by a court or administrative body that one or more clauses of the Pledge Agreement are unlawful, null and void, invalid or unenforceable in whole or in part shall not render unlawful, null and void, invalid or unenforceable the other clauses or the remaining parts thereof, which shall remain fully valid wherever applicable, all of the foregoing provided that the clauses or part thereof found to be unlawful, null and void, invalid or unenforceable are not essential.
(ii) The clauses or parts thereof found to be unlawful, null and void, invalid or unenforceable shall be deemed to have been removed from the Pledge Agreement or not applicable in that circumstance, as the case may be. Subject to prior agreement with the Agent, the Pledgor undertakes to replace the clauses or parts thereof found to be null and void, unlawful or unenforceable with other valid clauses, the economic consequences of which are as close as possible to the clauses found to be null and void, unlawful or unenforceable. For such purposes, the Pledgor undertakes to amend the Pledge Agreement accordingly.
11.4 Remedies and waiver of defenses
Any acknowledgment of receipt, release or cancellation of the Pledge provided for in the Pledge Agreement, or any obligation thereunder, may only be effected by the Agent with the consent of the Pledgees and shall neither release nor exempt the Pledgor from any obligation for an identical or different amount that may exist outside the Pledge Agreement. Where the acknowledgment of receipt, release or cancellation refers to only some of the Shares, such acknowledgment of receipt,
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release or cancellation shall not impair or affect the Pledge hereby created in relation to the rest of the Shares.
The rights, powers and remedies established in the Pledge Agreement are cumulative and do not exclude, and must not be construed as excluding, any of the rights, powers or remedies provided for in law.
No failure to exercise, nor delay in exercising, on the part of any of the Pledgees or the Agent, of any of the rights, powers and remedies provided for in the Pledge Agreement or by law shall operate as a waiver. Equally, no single or partial waiver of such rights shall prevent the subsequent or other exercise of such rights, or the exercise of any other right.
11.5 Expenses and taxes
All costs, taxes and expenses incurred in the creation, formalization, fulfillment, performance, cancellation, extension or ratification of the Pledge Agreement and any taxes, costs, expenses and fees incurred in the enforcement of the Pledge by any Party shall be borne by the Pledgor.
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11.6 Notices
11.6.1 Requirements
Any notices, authorizations, consents and other communications relating to the Pledge Agreement:
(i) shall be drafted in Spanish;
(ii) must be effected in writing;
(iii) shall be delivered by hand, with acknowledgement of receipt, or shall be sent by any means that provides duly authenticated proof of the contents and the date on which the notice was sent;
(iv) shall be sent to the addressees at the addresses indicated in clause 12.6.2, or, if the addressee indicates any other address, shall be sent to such address.
Notices are deemed effected on the date on which they are sent.
11.6.2 Addressees and delivery addresses
Notices must be delivered to the persons and at the addresses set forth below:
Pledgor:
[NUEVA PESCANOVA] Address: [®] Telephone: [®] Fax: [®] E-mail: [®]@[®].com
Agent:
[®] Address: [®] Telephone: [®]
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Fax: [®] E-mail: [®]@[®].com
Pledgees:
[®] Address: [®] Telephone: [®] Fax: [®] E-mail: [®]@[®].com
[®] Address: [®] Telephone: [®] Fax: [®] E-mail: [®]@[®].com
11.7 Language
The Pledge Agreement is formalized in Spanish. If the Pledge Agreement or any other document to be exchanged by the Parties in accordance with the Pledge Agreement is translated into another language, the version in Spanish of the Pledge Agreement or document in question shall prevail.
12. Public document
The Pledge Agreement and any amendments to it shall be formalized in a public document, either in the form of an agreement attested by a notary or a deed notarizing the Pledge Agreement or any amendment to it.
13. Applicable law. Jurisdiction
The Pledge Agreement shall be governed by, and interpreted under, Catalan law and other related legislation.
The Parties expressly waive any other jurisdiction to which they may be legally entitled, and expressly submit the resolution of any disputes or claims arising over
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the interpretation or performance of the Pledge Agreement, including those relating to any noncontractual obligations arising from or related to it, to the jurisdiction of the courts and tribunals of [Barcelona].
IN WITNESS WHEREOF, the Parties have formalized the Pledge Agreement, in the place and on the date first above written.
[there follow schedules and a signature sheet]
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List of Schedules
Schedule II Secured Agreement
Schedule 2.5 Certificate of register of shareholders
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Schedule II Secured Agreement
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Schedule 2.5 Certificate of register of shareholders
