as Guarantors,
DEUTSCHE BANK SECURITIES, INC., NOMURA INTERNATIONAL PLC,
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., BNP PARIBAS,
HSBC SECURITIES (USA) INC. and MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Bookrunners,
as Administrative Agent and Collateral Agent
Page | ||||
ARTICLE I. DEFINITIONS AND INTERPRETATION | 2 | |||
Section 1.01 Definitions | 2 | |||
Section 1.02 Accounting Terms | 59 | |||
Section 1.03 Interpretation, Etc. | 59 | |||
Section 1.04 Exchange Rates; Currency Equivalents | 59 | |||
ARTICLE II. LOANS AND LETTERS OF CREDIT | 60 | |||
Section 2.01 Term Loans | 60 | |||
Section 2.02 Revolving Loans | 61 | |||
Section 2.03 Swing Line Loans | 64 | |||
Section 2.04 Issuance of Letters of Credit and Purchase of Participations Therein | 67 | |||
Section 2.05 Pro Rata Shares; Availability of Funds | 75 | |||
Section 2.06 Use of Proceeds | 75 | |||
Section 2.07 Evidence of Debt; Register; Notes | 76 | |||
Section 2.08 Interest on Loans | 76 | |||
Section 2.09 Conversion/Continuation | 79 | |||
Section 2.10 Default Interest | 80 | |||
Section 2.11 Fees | 80 | |||
Section 2.12 Scheduled Payments/Commitment Reductions | 82 | |||
Section 2.13 Voluntary Prepayments/Commitment Reductions | 87 | |||
Section 2.14 Mandatory Prepayments/Commitment Reductions | 90 | |||
Section 2.15 Application of Prepayments; Application of Proceeds of Collateral | 93 | |||
Section 2.16 General Provisions Regarding Payments | 94 | |||
Section 2.17 Ratable Sharing | 95 | |||
Section 2.18 Making or Maintaining Eurocurrency Rate Loans | 96 | |||
Section 2.19 Increased Costs; Capital Adequacy | 97 | |||
Section 2.20 Taxes; Withholding, Etc. | 99 | |||
Section 2.21 Obligation to Mitigate | 103 | |||
Section 2.22 Defaulting Lenders | 104 | |||
Section 2.23 Removal or Replacement of a Lender | 104 | |||
Section 2.24 Appointment of Borrower Representative | 105 | |||
Section 2.25 Ancillary Facilities | 106 | |||
ARTICLE III. CONDITIONS PRECEDENT | 109 | |||
Section 3.01 Closing Date | 109 | |||
Section 3.02 Conditions to Each Credit Extension | 116 | |||
Section 3.03 Conditions to Effectiveness | 117 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES | 117 | |||
Section 4.01 Organization; Structure Chart; Requisite Power and Authority; Qualification | 117 |
i
Page | ||||
Section 4.02 Equity Interests and Ownership | 118 | |||
Section 4.03 Due Authorization | 118 | |||
Section 4.04 No Conflict | 118 | |||
Section 4.05 Governmental Consents | 118 | |||
Section 4.06 Binding Obligation | 119 | |||
Section 4.07 Historical Financial Statements | 119 | |||
Section 4.08 Projections | 119 | |||
Section 4.09 No Material Adverse Change | 119 | |||
Section 4.10 Adverse Proceedings, Etc. | 119 | |||
Section 4.11 Payment of Taxes | 120 | |||
Section 4.12 Properties | 120 | |||
Section 4.13 Environmental Matters | 120 | |||
Section 4.14 Health Care Regulatory Matters | 121 | |||
Section 4.15 No Defaults | 124 | |||
Section 4.16 Governmental Regulation | 124 | |||
Section 4.17 Margin Stock | 124 | |||
Section 4.18 Employee Benefit Plans | 124 | |||
Section 4.19 Solvency | 125 | |||
Section 4.20 Compliance with Statutes, Etc. | 125 | |||
Section 4.21 Disclosure | 125 | |||
Section 4.22 PATRIOT Act | 126 | |||
Section 4.23 Intellectual Property | 126 | |||
Section 4.24 Merger Documents | 127 | |||
Section 4.25 Ranking; Security | 127 | |||
Section 4.26 Centre of Main Interests and Establishments | 127 | |||
Section 4.27 Enforcement and Relevant Jurisdiction | 128 | |||
ARTICLE V. AFFIRMATIVE COVENANTS | 128 | |||
Section 5.01 Financial Statements and Other Reports | 128 | |||
Section 5.02 Existence | 132 | |||
Section 5.03 Payment of Taxes and Claims | 133 | |||
Section 5.04 Maintenance of Properties | 133 | |||
Section 5.05 Insurance | 133 | |||
Section 5.06 Books and Records; Inspections | 134 | |||
Section 5.07 Lenders’ Calls | 134 | |||
Section 5.08 Compliance with Material Contractual Obligations and Laws | 134 | |||
Section 5.09 Environmental | 134 | |||
Section 5.10 Health Care Regulatory Matters | 135 | |||
Section 5.11 Maintenance of Ratings | 136 | |||
Section 5.12 Intellectual Property | 136 | |||
Section 5.13 Subsidiaries | 137 | |||
Section 5.14 Additional Material Real Estate Assets | 138 | |||
Section 5.15 Additional Collateral | 138 | |||
Section 5.16 Interest Rate Protection | 138 | |||
Section 5.17 Further Assurances | 138 | |||
Section 5.18 Foreign Bank Accounts and Cash held by Foreign Group Member | 139 |
ii
Page | ||||
Section 5.19 Cash Management Systems | 139 | |||
Section 5.20 Guarantor Coverage Test | 139 | |||
Section 5.21 “Know Your Customer” Checks | 140 | |||
Section 5.22 ERISA | 140 | |||
Section 5.23 Delivery of Post-Closing Date Collateral Documentation | 140 | |||
ARTICLE VI. NEGATIVE COVENANTS | 141 | |||
Section 6.01 Indebtedness | 141 | |||
Section 6.02 Liens | 143 | |||
Section 6.03 No Further Negative Pledges | 146 | |||
Section 6.04 Restricted Payments | 146 | |||
Section 6.05 Restrictions on Subsidiary Distributions | 147 | |||
Section 6.06 Investments | 147 | |||
Section 6.07 Financial Covenants | 149 | |||
Section 6.08 Fundamental Changes; Disposition of Assets; Acquisitions | 151 | |||
Section 6.09 Disposal of Subsidiary Interests | 153 | |||
Section 6.10 Sales and Lease-Backs | 153 | |||
Section 6.11 Transactions with Shareholders and Affiliates | 154 | |||
Section 6.12 Conduct of Business | 154 | |||
Section 6.13 Amendments or Waivers of Organizational Documents and Certain Other Documents | 154 | |||
Section 6.14 Fiscal Year | 154 | |||
Section 6.15 Centre of Main Interests and Establishments | 155 | |||
Section 6.16 Limitation in Relation to German Loan Parties | 155 | |||
Section 6.17 Financial Assistance | 156 | |||
ARTICLE VII. GUARANTY | 156 | |||
Section 7.01 Guaranty of the Obligations | 156 | |||
Section 7.02 Contribution by Guarantors | 156 | |||
Section 7.03 Payment by Guarantors | 157 | |||
Section 7.04 Liability of Guarantors Absolute | 157 | |||
Section 7.05 Waivers by Guarantors | 159 | |||
Section 7.06 Guarantors’ Rights of Subrogation, Contribution, Etc. | 160 | |||
Section 7.07 Subordination of Other Obligations | 160 | |||
Section 7.08 Continuing Guaranty | 161 | |||
Section 7.09 Authority of Guarantors or the Borrowers | 161 | |||
Section 7.10 Financial Condition of the Borrowers | 161 | |||
Section 7.11 Bankruptcy, Etc. | 161 | |||
Section 7.12 Discharge of Guaranty Upon Sale of Guarantor | 162 | |||
Section 7.13 Spanish Guarantor Limitations | 162 | |||
Section 7.14 Italian Guarantor Limitations | 162 | |||
Section 7.15 German Guarantor Limitations | 162 | |||
ARTICLE VIII. EVENTS OF DEFAULT | 164 | |||
Section 8.01 Events of Default | 164 |
iii
Page | ||||
ARTICLE IX. AGENTS | 168 | |||
Section 9.01 Appointment of Agents | 168 | |||
Section 9.02 Powers and Duties | 168 | |||
Section 9.03 General Immunity | 169 | |||
Section 9.04 Agents Entitled to Act as Lender | 171 | |||
Section 9.05 Lenders’ Representations, Warranties and Acknowledgment | 171 | |||
Section 9.06 Right to Indemnity | 172 | |||
Section 9.07 Successor Administrative Agent, Collateral Agent and Swing Line Lender | 172 | |||
Section 9.08 Security Documents and Guaranty | 174 | |||
Section 9.09 Withholding Taxes | 176 | |||
Section 9.10 Administrative Agent May File Proofs of Claim | 176 | |||
Section 9.11 Administrative Agent’s “Know Your Customer” Requirements | 177 | |||
Section 9.12 Spanish Collateral Agent | 177 | |||
Section 9.13 Italian Collateral Agent | 177 | |||
Section 9.14 German Collateral Agent | 178 | |||
Section 9.15 Parallel Debt | 179 | |||
ARTICLE X. MISCELLANEOUS | 181 | |||
Section 10.01 Notices | 181 | |||
Section 10.02 Expenses | 183 | |||
Section 10.03 Indemnity | 184 | |||
Section 10.04 Set-Off | 185 | |||
Section 10.05 Amendments and Waivers | 185 | |||
Section 10.06 Successors and Assigns; Participations | 189 | |||
Section 10.07 Independence of Covenants, Etc | 193 | |||
Section 10.08 Survival of Representations, Warranties and Agreements | 194 | |||
Section 10.09 No Waiver; Remedies Cumulative | 194 | |||
Section 10.10 Marshalling; Payments Set Aside | 194 | |||
Section 10.11 Severability | 194 | |||
Section 10.12 Obligations Several; Independent Nature of Lenders’ Rights | 195 | |||
Section 10.13 Table of Contents and Headings | 195 | |||
Section 10.14 APPLICABLE LAW | 195 | |||
Section 10.15 CONSENT TO JURISDICTION | 195 | |||
Section 10.16 WAIVER OF JURY TRIAL | 196 | |||
Section 10.17 Confidentiality | 197 | |||
Section 10.18 Usury Savings Clause | 198 | |||
Section 10.19 Counterparts | 198 | |||
Section 10.20 Executive Proceedings | 199 | |||
Section 10.21 Effectiveness; Entire Agreement; No Third Party Beneficiaries | 199 | |||
Section 10.22 PATRIOT Act | 200 | |||
Section 10.23 Electronic Execution of Assignments | 200 | |||
Section 10.24 No Fiduciary Duty | 200 | |||
Section 10.25 Judgment Currency | 201 |
iv
SCHEDULES: | 1.01(a) | Tranche A Term Loan Commitments | ||||
1.01(b) | Tranche B Term Loan Commitments | |||||
1.01(c) | Revolving Commitments | |||||
1.01(d) | Notice Addresses | |||||
1.01(e) | Agreed Security Principles | |||||
1.01(f) | Mandatory Costs | |||||
4.01 | Jurisdictions of Organization and Qualification; Capital Structure | |||||
4.02 | Equity Interests and Ownership | |||||
4.12 | Real Estate Assets | |||||
6.01 | Certain Indebtedness | |||||
6.02 | Certain Liens | |||||
6.06 | Certain Investments | |||||
EXHIBITS: | A-1 | Borrowing Notice | ||||
A-2 | Conversion/Continuation Notice | |||||
A-3 | Issuance Notice | |||||
B-1 | Tranche A Term Loan Note | |||||
B-2 | Tranche B Term Loan Note | |||||
B-3 | Revolving Loan Note | |||||
B-4 | Swing Line Note | |||||
C-1 | Compliance Certificate | |||||
C-2 | Guarantor Coverage Certificate | |||||
D | Assignment Agreement | |||||
E | Certificate re Non-Bank Status | |||||
F-1 | Closing Date Certificate | |||||
F-2 | Solvency Certificate | |||||
G | Counterpart Agreement | |||||
H | U.S. Pledge and Security Agreement | |||||
I | Mortgage |
v
1
DEFINITIONS AND INTERPRETATION
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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59
LOANS AND LETTERS OF CREDIT
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68
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80
Equivalent of the aggregate principal amount of (x) all outstanding U.S. Multicurrency Revolving Loans plus (y) the U.S. Multicurrency Letter of Credit Usage, times (B) 0.75%; |
81
U.S. Tranche A Term Loan | ||
Amortization Date | Installments | |
FQ1 2012 | $30,000,000 | |
FQ2 2012 | $30,000,000 |
82
U.S. Tranche A Term Loan | ||
Amortization Date | Installments | |
FQ1 2012 | $30,000,000 | |
FQ2 2012 | $30,000,000 | |
FQ3 2012 | $30,000,000 | |
FQ4 2012 | $30,000,000 | |
FQ1 2013 | $30,000,000 | |
FQ2 2013 | $30,000,000 | |
FQ3 2013 | $30,000,000 | |
FQ4 2013 | $30,000,000 | |
FQ1 2014 | $45,000,000 | |
FQ2 2014 | $45,000,000 | |
FQ3 2014 | $45,000,000 | |
FQ4 2014 | $45,000,000 | |
FQ1 2015 | $195,000,000 | |
FQ2 2015 | $195,000,000 | |
FQ3 2015 | $195,000,000 | |
Tranche A Term Loan Maturity Date | Remainder |
Foreign Tranche A Term | ||
Amortization Date | Loan Installments | |
FQ1 2012 | €5,500,000 | |
FQ2 2012 | €5,500,000 | |
FQ3 2012 | €5,500,000 | |
FQ4 2012 | €5,500,000 | |
FQ1 2013 | €5,500,000 | |
FQ2 2013 | €5,500,000 | |
FQ3 2013 | €5,500,000 | |
FQ4 2013 | €5,500,000 | |
FQ1 2014 | €8,250,000 |
83
Foreign Tranche A Term | ||
Amortization Date | Loan Installments | |
FQ2 2014 | €8,250,000 | |
FQ3 2014 | €8,250,000 | |
FQ4 2014 | €8,250,000 | |
FQ1 2015 | €35,750,000 | |
FQ2 2015 | €35,750,000 | |
FQ3 2015 | €35,750,000 | |
Tranche A Term Loan Maturity Date | Remainder |
U.S. Tranche B Term Loan | ||
Amortization Date | Installments | |
FQ1 2011 | $3,250,000 | |
FQ2 2011 | $3,250,000 | |
FQ3 2011 | $3,250,000 | |
FQ4 2011 | $3,250,000 | |
FQ1 2012 | $3,250,000 | |
FQ2 2012 | $3,250,000 | |
FQ3 2012 | $3,250,000 | |
FQ4 2012 | $3,250,000 | |
FQ1 2013 | $3,250,000 | |
FQ2 2013 | $3,250,000 | |
FQ3 2013 | $3,250,000 | |
FQ4 2013 | $3,250,000 | |
FQ1 2014 | $3,250,000 | |
FQ2 2014 | $3,250,000 | |
FQ3 2014 | $3,250,000 | |
FQ4 2014 | $3,250,000 |
84
U.S. Tranche B Term Loan | ||
Amortization Date | Installments | |
FQ1 2015 | $3,250,000 | |
FQ2 2015 | $3,250,000 | |
FQ3 2015 | $3,250,000 | |
FQ4 2015 | $3,250,000 | |
FQ1 2016 | $3,250,000 | |
FQ2 2016 | $3,250,000 | |
FQ3 2016 | $3,250,000 | |
Tranche B Term Loan Maturity Date | Remainder |
85
Foreign Tranche B Term | ||
Amortization Date | Loan Installments | |
FQ1 2011 | €550,000 | |
FQ2 2011 | €550,000 | |
FQ3 2011 | €550,000 | |
FQ4 2011 | €550,000 | |
FQ1 2012 | €550,000 | |
FQ2 2012 | €550,000 | |
FQ3 2012 | €550,000 | |
FQ4 2012 | €550,000 | |
FQ1 2013 | €550,000 | |
FQ2 2013 | €550,000 | |
FQ3 2013 | €550,000 | |
FQ4 2013 | €550,000 | |
FQ1 2014 | €550,000 | |
FQ2 2014 | €550,000 | |
FQ3 2014 | €550,000 | |
FQ4 2014 | €550,000 | |
FQ1 2015 | €550,000 | |
FQ2 2015 | €550,000 | |
FQ3 2015 | €550,000 | |
FQ4 2015 | €550,000 | |
FQ1 2016 | €550,000 | |
FQ2 2016 | €550,000 | |
FQ3 2016 | €550,000 | |
Tranche B Term Loan Maturity Date | Remainder |
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87
88
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96
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99
100
101
102
103
104
105
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108
CONDITIONS PRECEDENT
109
110
111
112
113
114
115
116
REPRESENTATIONS AND WARRANTIES
117
118
119
120
121
122
123
124
125
126
127
AFFIRMATIVE COVENANTS
128
129
130
131
132
133
134
135
136
137
138
139
140
NEGATIVE COVENANTS
141
142
143
144
145
146
147
148
Fiscal | Interest | |
Quarter | Coverage Ratio | |
FQ1 2011 | 2.20:1.00 | |
FQ2 2011 | 2.20:1.00 | |
FQ3 2011 | 2.20:1.00 | |
FQ4 2011 | 2.25:1.00 | |
FQ1 2012 | 2.40:1.00 | |
FQ2 2012 | 2.60:1.00 | |
FQ3 2012 | 2.80:1.00 | |
FQ4 2012 | 3.00:1.00 | |
FQ1 2013 | 3.15:1.00 | |
FQ2 2013 | 3.30:1.00 | |
FQ3 2013 | 3.40:1.00 | |
FQ4 2013 | 3.55:1.00 | |
FQ1 2014 | 3.80:1.00 | |
FQ2 2014 | 4.00:1.00 | |
FQ3 2014 | 4.25:1.00 | |
FQ4 2014 | 4.50:1.00 | |
FQ1 2015 and thereafter | 4.50:1.00 |
149
Fiscal | ||
Quarter | Leverage Ratio | |
FQ1 2011 | 6.00:1.00 | |
FQ2 2011 | 6.00:1.00 | |
FQ3 2011 | 6.00:1.00 | |
FQ4 2011 | 5.50:1.00 | |
FQ1 2012 | 5.10:1.00 | |
FQ2 2012 | 4.65:1.00 | |
FQ3 2012 | 4.30:1.00 | |
FQ4 2012 | 4.00:1.00 | |
FQ1 2013 | 3.80:1.00 | |
FQ2 2013 | 3.60:1.00 | |
FQ3 2013 | 3.40:1.00 | |
FQ4 2013 | 3.25:1.00 | |
FQ1 2014 | 3.05:1.00 | |
FQ2 2014 and thereafter | 3.00:1.00 |
150
Fiscal | Consolidated Capital | |
Year | Expenditures | |
2011 | $50,000,000 | |
2012 | $150,000,000 | |
2013 | $150,000,000 | |
2014 and thereafter | $175,000,000 |
(A) | “Consolidated Cash Flow for Debt Service” shall be calculated by reference to the actual results of the Group for the period from the Closing Date to the testing date; and | ||
(B) | “Debt Service” shall be calculated by reference to the actual payments by the Group from the Closing Date to the testing date. |
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152
153
154
155
GUARANTY
156
157
158
159
160
Section 7.11Bankruptcy, Etc. |
161
162
163
EVENTS OF DEFAULT
164
165
166
167
AGENTS
168
169
170
171
172
173
174
175
176
177
178
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180
MISCELLANEOUS
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GRIFOLS INC. | ||||
By: | /s/ Gregory G. Rich | |||
Name: Gregory G. Rich | ||||
Title: President and Chief Executive Officer | ||||
GRIFOLS, SA. | ||||
By: | /s/ Victor Grifols Roura | |||
Name: | ||||
Title | ||||
DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent, Collateral Agent, Swing Line Lender and Issuing Bank and a Lender | ||||
By: | /s/ Carin Keegan | |||
Name: | Carin Keegan | |||
Title: | Director | |||
By: | /s/ Scottye Lindsey | |||
Name: | Scottye Lindsey | |||
Title: | Director | |||
NOMURA INTERNATIONAL PLC, as a Lender | ||||
By: | /s/ Luca Tassan | |||
Name: | Luca Tassan | |||
Title: | Managing Director | |||
HSBC BANK PLC. as a Lender | ||||
By: | /s/ John Haire | |||
Name: | John Haire | |||
Title: | Director | |||
BNP PARIBAS, as a Lender | ||||
By: | /s/ Charlotte Naconlan | |||
Name: | Charlotte Naconlan | |||
Title: | Managing Director | |||
By: | /s/ Javier Entrecanaves | |||
Name: | Javier Entrecanaves | |||
Title: | Director | |||
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., as a Lender | ||||
By: | /s/ Pablo Arsuaga | |||
Name: | Pablo Arsuaga | |||
Title: | Syndicated Loans | |||
MORGAN STANLEY SENIOR FUNDING, INC., as a Lender | ||||
By: | /s/ Christy Silvester | |||
Name: | Christy Silvester | |||
Title: | Executive Director | |||
CREDIT AND GUARANTY AGREEMENT
U.S. Tranche A Term Loans | ||||||
o | Base Rate Loans: | $[___,___,___] | ||||
o | Eurocurrency Rate Loans, with an initial Interest Period of 1 month: | $[___,___,___] | ||||
Foreign Tranche A Term Loans | ||||||
o | Eurocurrency Rate Loans, with an initial Interest Period of 1 month: | €[___,___,___] | ||||
U.S. Tranche B Term Loans | ||||||
o | Base Rate Loans: | $[___,___,___] | ||||
o | Eurocurrency Rate Loans, with an initial Interest Period of 1 month: | $[___,___,___] | ||||
Foreign Tranche B Term Loans | ||||||
o | Eurocurrency Rate Loans, with an initial Interest Period of 1 month: | €[___,___,___] |
U.S. Revolving Loans | ||||||
o | Base Rate Loans: | $[___][___,___,___] | ||||
o | Eurocurrency Rate Loans, with an initial Interest Period of ________ month(s):1 | $[___] [___,___,___] | ||||
U.S. Multicurrency Revolving Loans | ||||||
o | Base Rate Loans: | [_]3[___][___,___,___] | ||||
o | Eurocurrency Rate Loans, with an initial Interest Period of ________ month(s):2 | [_]4[___] [___,___,___] | ||||
Foreign Revolving Loans | ||||||
o | Eurocurrency Rate Loans, with an initial Interest Period of ________ month(s):5 | €[___] [___,___,___] | ||||
U.S. Swing Line Loans: $[___,___,___] | ||||||
U.S. Multicurrency Swing Line Loans: $[___,___,___] |
1 | The earlier of (i) six (6) months after the Closing Date and (ii) the completion of the syndication of the Loans and Commitments (as determined by the Arrangers in their sole discretion). | |
2 | The earlier of (i) six (6) months after the Closing Date and (ii) the completion of the syndication of the Loans and Commitments (as determined by the Arrangers in their sole discretion). | |
3 | Loans in respect of the Multicurrency Revolving Commitments may be drawn in any Approved Currency pursuant to Section 2.02(c) of the Credit Agreement. | |
4 | Loans in respect of the Multicurrency Revolving Commitments may be drawn in any Approved Currency pursuant to Section 2.02(c) of the Credit Agreement. | |
5 | The earlier of (i) six (6) months after the Closing Date and (ii) the completion of the syndication of the Loans and Commitments (as determined by the Arrangers in their sole discretion). |
Date:[mm/dd/yy] | GRIFOLS INC., as Borrower Representative | |||
By: | ||||
Name: | ||||
Title: | ||||
[GRIFOLS INC. / GRIFOLS, S.A.] | ||||
By: | ||||
Name: | ||||
Title: | ||||
CREDIT AND GUARANTY AGREEMENT
$[___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period1of [____] month(s) | |||
$[___,___,___] | Base Rate Loans to be converted to Eurocurrency Rate Loans with Interest Period of ____ month(s) | |||
$[___,___,___] | Eurocurrency Rate Loans to be converted to Base Rate Loans |
€[___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) |
$[___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) | |||
$[___, ___, ___] | Base Rate Loans to be converted to Eurocurrency Rate Loans with Interest Period of ____ month(s) | |||
$[___, ___, ___] | Eurocurrency Rate Loans to be converted to Base Rate Loans |
1 | Choice of one, two, three or six months (or, if available to all of the Lenders, nine or twelve months). |
[___, ___, ___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) |
$[___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) | |||
$[___,___,___] | Eurocurrency Rate Loans to be converted to Base Rate Loans | |||
$[___,___,___] | Base Rate Loans to be converted to Eurocurrency Rate Loans with Interest Period of ____ month(s) |
[_]2[___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) | |||
[_]2[___,___,___] | Eurocurrency Rate Loans to be converted to Base Rate Loans | |||
[_]2[___,___,___] | Base Rate Loans to be converted to Eurocurrency Rate Loans with Interest Period of ____ month(s) |
€ [___,___,___] | Eurocurrency Rate Loans to be continued with Interest Period of [____] month(s) |
Date:[mm/dd/yy] | GRIFOLS INC., as Borrower Representative | |||
By: | ||||
Name: | ||||
Title: | ||||
2 | Any Approved Currency. |
CREDIT AND GUARANTY AGREEMENT
1 | Indicate currency denomination: Dollars, Euros or other Approved Currency for Foreign Letters of Credit. |
Date:[mm/dd/yy] | GRIFOLS INC., | |||
By: | ||||
Name: | ||||
Title: | ||||
GRIFOLS, S.A. | ||||
By: | ||||
Name: | ||||
Title: | ||||
GRIFOLS INC., as Borrower Representative | ||||
By: | ||||
Name: | ||||
Title: | ||||
REDIT AND GUARANTY AGREEMENT
[$][€][___,___,___]1 [______], 2010 | New York, New York |
1 | Lender’s U.S. or Foreign Tranche A Term Loan Commitment as applicable. |
[GRIFOLS INC.] [GRIFOLS, S.A.] | ||||
By: | ||||
Name: | ||||
Title: | ||||
TRANCHE A TERM LOAN NOTE
Amount of | ||||||||||
Amount of Loan | Principal Paid This | Outstanding Principal | Notation | |||||||
Date | Currency | Made This Date | Date | Balance This Date | Made By |
CREDIT AND GUARANTY AGREEMENT
[$][€][___,___,___]1 [______], 2010 | New York, New York |
1 | Lender’s U.S. or Foreign Tranche B Term Loan Commitment as applicable. |
[GRIFOLS INC.] [GRIFOLS, S.A.] | ||||
By: | ||||
Name: | ||||
Title: | ||||
TRANCHE B TERM LOAN NOTE
Amount of | ||||||||||
Amount of Loan | Principal Paid This | Outstanding Principal | Notation | |||||||
Date | Currency | Made This Date | Date | Balance This Date | Made By |
CREDIT AND GUARANTY AGREEMENT
[$] [_]1[€][___,___,___]2 | New York, New York | |
[______], 2010 |
1 | Any Approved Currency. | |
2 | Lender’s U.S. Revolving Loan Commitment, U.S. Multicurrency Revolving Loan Commitment or Foreign Revolving Loan Commitment, as applicable. | |
3 | Lender’s U.S. Revolving Loan Commitment. | |
4 | Name of any Approved Currency. | |
5 | Applicable symbol for any Approved Currency. | |
6 | Lender’s U.S. Multicurrency Revolving Loan Commitment. | |
7 | Any Approved Currency. |
[GRIFOLS INC.] [GRIFOLS, S.A.] | ||||
By: | ||||
Name: | ||||
Title: | ||||
REVOLVING LOAN NOTE
Amount of | ||||||||||
Amount of Loan | Principal Paid This | Outstanding Principal | Notation | |||||||
Date | Currency | Made This Date | Date | Balance This Date | Made By |
CREDIT AND GUARANTY AGREEMENT
[$][___,___,___]1 | ||
[______], 2010 |
1 | U.S. Swing Line Sublimit or U.S. Multicurrency Swing Line Sublimit, as applicable. | |
2 | U.S. Swing Line Sublimit or U.S. Multicurrency Swing Line Sublimit, as applicable. |
GRIFOLS INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
SWING LINE NOTE
Amount of Loan | Amount of Principal | Outstanding Principal | Notation | |||||
Date | Made This Date | Paid This Date | Balance This Date | Made By |
CREDIT AND GUARANTY AGREEMENT
[GRIFOLS INC. ][GRIFOLS, S.A.] | ||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
COMPLIANCE CERTIFICATE
1.Consolidated Adjusted EBITDA (for the prior four Fiscal Quarter period):1(i) + (ii) — (iii) = | $[___, ___, ___] | |||||||
(i) | Consolidated Net Income (see item 8 below): | |||||||
(ii) | plus, to the extent reducing Consolidated Net Income, without duplication: | $[___, ___, ___] | ||||||
(a) | consolidated interest expense and any upfront fees payable to the Arrangers in connection with the Credit Agreement: | $[___, ___, ___] | ||||||
(b) | provisions for taxes based on income or gain: | $[___, ___, ___] | ||||||
(c) | total depreciation expense: | $[___, ___, ___] | ||||||
(d) | total amortization expense (including, without duplication, any upfront fees payable to the Arrangers in connection with the Credit Agreement being amortized): | $[___, ___, ___] | ||||||
(e) | other non-cash charges reducing Consolidated Net Income either related to (i) stock-based Compensation or (ii) purchase accounting adjustments:2 | $[___, ___, ___] | ||||||
(f) | Exceptional Items3, without duplication, resulting in a loss in accordance with GAAP (or IFRS, as applicable): | $[___, ___, ___] | ||||||
(ii) | less, to the extent increasing Consolidated Net Income:(a) + (b) = | $[___, ___, ___] | ||||||
(a) | other non-cash gains increasing Consolidated Net Income for such period:4 | $[___, ___, ___] |
1 | For purposes of the maximum Leverage Ratio or minimum Interest Coverage Ratio, Consolidated Adjusted EBITDA shall be calculated pro forma for material acquisitions and disposals, such that Consolidated Adjusted EBITDA would be adjusted to (a) include net income before net interest expense, taxes, depreciation and amortization attributable to the acquired entity (or assets) prior to its becoming a member of the Group during the relevant period, and (b) excluding net income before net interest expense, taxes, depreciation and amortization attributable to the disposed of entity (or assets) prior to its being disposed of by the Group during the relevant period.For the avoidance of doubt, such adjustment for material acquisitions and disposals shall not apply to the calculation of Consolidated Cash Flow for Debt Service or Consolidated Excess Cash Flow. | |
2 | Excluding any such non cash charge to the extent that it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period. | |
3 | Exceptional Items means one-off cash gains or losses incurred by the Group during the relevant period and to include one-off restructuring costs related to the Transactions, in accordance with IFRS (or GAAP, as applicable). | |
4 | Excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash gain in any prior period. |
(b) | Exceptional Items, without duplication, resulting in a gain in accordance with GAAP (or IFRS, as applicable): | $[___, ___, ___] | ||||||
2.Consolidated Capital Expenditures (for the relevant Fiscal Year):(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | aggregate of all expenditures of the Group during such period determined on a consolidated basis that, in accordance with GAAP (or IFRS, as applicable), are or should be included in “purchase of property and equipment” or similar items reflected in the consolidated statement of cash flows of the Group: | $[___, ___, ___] | ||||||
(ii) | less, to the extent otherwise included in clause (i):(a) + (b) + (c) + (d) = | $[___, ___, ___] | ||||||
(a) | expenditures for replacements and substitutions for fixed assets, capital assets or equipment to the extent made with Net Cash Proceeds invested pursuant to Section 2.14(a) or Section 2.14(b) of the Credit Agreement: | $[___, ___, ___] | ||||||
(b) | expenditures for fixed assets, capital assets or equipment (which are not replacement or substitution), to the extent made with Net Cash Proceeds from an Asset Disposition (including any proceeds from dispositions of (1) worn out, obsolete, scrap or surplus assets in the ordinary course of business and (2) sales, leases or licenses out of other assets for aggregate consideration of less than $2,000,000 with respect to any transaction or series of related transactions): | $[___, ___, ___] | ||||||
(c) | expenditures which constitute a Permitted Acquisition permitted under Section 6.08 of the Credit Agreement: | $[___, ___, ___] | ||||||
(d) | expenditures which constitute a use of the Available Amount (including to the extent financed with the issuance of Equity Interests of the Parent, which Equity Interests are not required to prepay Loans pursuant to Section 2.14(d)) of the Credit Agreement:5 | $[___, ___, ___] | ||||||
3.Consolidated Cash Flow for Debt Service (for the prior four Fiscal Quarter period):6(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | (a) + (b) + (c) + (d) + (e) = | $[___, ___, ___] | ||||||
(a) | Consolidated Adjusted EBITDA (see item 1 above), without duplication and excluding the effect of all cash movements associated with the Merger and the Transaction Costs: | $[___, ___, ___] | ||||||
(b) | the amount of any decrease (and deducting the amount of any increase) in the Consolidated Working Capital Adjustment (see item 11 below): | $[___, ___, ___] |
5 | On or prior to December 31, 2011, such amount shall not exceed $300,000,000. | |
6 | For any testing period ending less than four Fiscal Quarters after the Closing Date, Consolidated Cash Flow for Debt Service shall be calculated by reference to the actual results of the Group for the period from the Closing Date to the testing date. |
(c) | the amount of any cash receipts in respect of any Tax rebates or credits and deducting the amount actually paid or due and payable in respect of Taxes during that relevant period by any Group Member: | $[___, ___, ___] | ||||||
(d) | to the extent not already taken into account in determining Consolidated Adjusted EBITDA, the amount of any dividends or other profit distributions received in cash by any Group Member from any entity which is itself not a Group Member and deducting (to the extent not already deducted in determining Consolidated Adjusted EBITDA) the amount of any dividends or other profit distributions paid in cash during the relevant period to any shareholder in any Group Member which is not itself a Group Member: | $[___, ___, ___] | ||||||
(e) | the amount of any increase in provisions, other non-cash debits and other non-cash charges (which are not already included within Consolidated Current Assets or Consolidated Current Liabilities) and deducting the amount of any non-cash credits (which are not already included within Consolidated Current Assets or Consolidated Current Liabilities) in each case to the extent taken into account in establishing Consolidated Adjusted EBITDA: | $[___, ___, ___] | ||||||
(ii) | less:(a) + (b) + (c) = | $[___, ___, ___] | ||||||
(a) | the amount of Consolidated Capital Expenditure actually made (or due to be made) by any Group Member:7 | $[___, ___, ___] | ||||||
(b) | the aggregate of any cash consideration paid for, or the cash cost of any Permitted Acquisition: | $[___, ___, ___] | ||||||
(c) | the amount of any cash Investments in a Joint Venture: | $[___, ___, ___] | ||||||
4.Consolidated Current Assets (as of the date of determination): | ||||||||
total assets of the Group on a consolidated basis that may properly be classified as current assets in conformity with GAAP (or IFRS, as applicable), excluding Cash and Cash Equivalents: | $[___, ___, ___] | |||||||
5.Consolidated Current Liabilities (as of the date of determination): | ||||||||
total liabilities of the Group on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP (or IFRS, as applicable), excluding the current portion of long term debt: | $[___, ___, ___] |
7 | Except to the extent funded from (1) the Net Cash Proceeds of an Asset Disposition or the Net Cash Proceeds of a Casualty Event permitted to be retained for this purpose; or (2) financed with the issuance of Equity Interests of the Parent that are not applied to prepay the Loans pursuant to Section 2.14 of the Credit Agreement. |
6.Consolidated Excess Cash Flow (for any Fiscal Year8):(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | (a) + (b) + (c) + (d) + (e) + (f) = | $[___, ___, ___] | ||||||
(a) | Consolidated Adjusted EBITDA (see item 1 above), without duplication and excluding the effect of all cash movements associated with the Merger and the Transaction Costs: | $[___, ___, ___] | ||||||
(b) | the amount of any decrease (and deducting the amount of any increase) in the Consolidated Working Capital Adjustment (see item 11 below): | $[___, ___, ___] | ||||||
(c) | the amount of any cash receipts (and deducting the amount of any cash payments) in respect of any Exceptional Items not already taken into account of in calculating Consolidated Adjusted EBITDA for the relevant period (other than, in the case of cash receipts, Net Cash Proceeds): | $[___, ___, ___] | ||||||
(d) | the amount of any cash receipts in respect of any Tex rebates or credits and deducting that amount actually paid or due and payable in respect of Taxes during that relevant period by any Group Member: | $[___, ___, ___] | ||||||
(e) | to the extent not already taken into account in determining Consolidated Adjusted EBITDA, the amount of any dividends or other profit distributions received in cash by any Group Member from any entity which is itself not a Group Member and deducting (to the extent not already deducted in determining Consolidated Adjusted EBITDA) the amount of any dividends or other profit distributions paid in cash during the relevant period to any shareholders in any Group Member which is itself not a Group Member: | $[___, ___, ___] | ||||||
(f) | the amount of any increase in provisions, other non-cash debits and other non-cash charges (which are not already included within Consolidated Current Assets or Consolidated Current Liabilities) and deducting the amount of any non-cash credits (which are not already included within Consolidated Current Assets or Consolidated Current Liabilities) in each case to the extent taken into account in establishing Consolidated Adjusted EBITDA: | $[___, ___, ___] | ||||||
(ii) | less: (a) + (b) + (c) + (d) + (e) + (f) = | $[___, ___, ___] | ||||||
(a) | the amount of Consolidated Capital Expenditure actually made (or due to be made) by any Group Member:9 | $[___, ___, ___] | ||||||
(b) | the aggregate of any cash consideration paid for, or the cash cost of, any Permitted Acquisition: | $[___, ___, ___] |
8 | Commencing with the Fiscal Year ending December 31, 2011. | |
9 | Except to the extent funded from (1) the Net Cash Proceeds of an Asset Disposition or the Net Cash Proceeds of a Casualty Event permitted to be retained for this purpose; or (2) financed with the issuance of Equity Interests of the Parent that are not applied to prepay the Loans pursuant to Section 2.14(d) of the Credit Agreement. |
(c) | the amount of any cash Investments in a Joint Venture: | $[___, ___, ___] | ||||||
(d) | the amounts paid in cash from operating cash flow of scheduled repayments of Indebtedness for borrowed money:10 | $[___, ___, ___] | ||||||
(e) | scheduled repayments of obligations under Capital Leases (excluding any interest expense portion thereof): | $[___, ___, ___] | ||||||
(f) | consolidated cash interest expense: | $[___, ___, ___] | ||||||
7.Consolidated Net Cash Interest Expense (for the prior four Fiscal Quarter Period):11(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | total interest expense (including that portion attributable to Capital Leases in accordance with GAAP (or IFRS, as applicable)) of the Group on a consolidated basis with respect to all outstanding Indebtedness of the Group (net of cash interest earned): | $[___, ___, ___] | ||||||
(ii) | less:(a) + (b) + (c) = | $[___, ___, ___] | ||||||
(a) | any amount not payable in cash in such period: | $[___, ___, ___] | ||||||
(b) | any one-off financing fees in connection with the Transaction, including any amounts referred to in Section 2.11(e), (f) or (g) of the Credit Agreement payable on or before the Closing Date:12 | $[___, ___, ___] | ||||||
(c) | total interest income due on a consolidated basis to the Group with respect to the cash and Cash Equivalents balances of the Group, as determined on a consolidated basis in accordance with GAAP (or IFRS, as applicable): | $[___, ___, ___] | ||||||
8.Consolidated Net Income (for the prior four Fiscal Quarter Period):13(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | the net income (or loss) of the Group on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP (or IFRS, as applicable):14 | $[___, ___, ___] |
10 | Excluding for the avoidance of doubt, scheduled repayments of obligations under Capital Leases (excluding any interest expense portion thereof) and any purchases (or repayments) in connection therewith of Loans pursuant to Section 2.13(c) of the Credit Agreement. | |
11 | For any testing period ending less than four Fiscal Quarters after the Closing Date, Consolidated Net Cash Interest Expense shall be annualized for the period from the Closing Date to the relevant testing date, by multiplying Consolidated Net Cash Interest Expense by A/ B, where A=365 and B equals the number of days elapsed since (and including) the Closing Date. | |
12 | To the extent included in such Person’s consolidated interest expense. | |
13 | For the avoidance of doubt, cash amounts used by the Borrowers to make purchases of debt (including purchases of Loans under Section 2.13(c) of the Credit Agreement and purchases of the Senior Notes) shall not reduce Consolidated Net Income, nor will any non-cash gain associated with the cancellation of such purchased debt increase Consolidated Net Income. | |
14 | Before any adjustment for profit and loss attributable to minority interests and capitalized interest. |
(ii) | less:(a) + (b) + (c) + (d) + (e) = | $[___, ___, ___] | ||||||
(a) | the income (or loss) of any Person (other than a Group Member) in which any other Person (other than a Group Member) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to any Group Member by such Person: | $[___, ___, ___] | ||||||
(b) | the income (or loss) of any Person accrued prior to the date it becomes a Group Member or is merged into or consolidated with the Group or that Person’s assets are acquired by any Group Member: | $[___, ___, ___] | ||||||
(c) | the income of any Subsidiary of the U.S. Borrower to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary: | $[___, ___, ___] | ||||||
(d) | any after-tax non-cash gains (or losses) attributable to Asset Disposition or returned surplus assets of any Pension Plan: | $[___, ___, ___] | ||||||
(e) | to the extent not included in clauses (a) through (d) above, any net extraordinary gains or net extraordinary losses: | $[___, ___, ___] | ||||||
9.Consolidated Net Total Debt (as of the date of determination):(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | the aggregate stated balance sheet amount of all Indebtedness (including guarantees) of the Group determined on a consolidated basis in accordance with GAAP (or IFRS, as applicable), exclusive of any Contingent Liability in respect of any Letter of Credit: | $[___, ___, ___] | ||||||
(ii) | less, the amount of unrestricted cash or Cash Equivalents of the Group, determined on a consolidated basis in accordance with GAAP (or IFRS, as applicable): | $[___, ___, ___] | ||||||
10.Consolidated Working Capital (as of the date of determination):(i) — (ii) = | $[___, ___, ___] | |||||||
(i) | Consolidated Current Assets: | $[___, ___, ___] | ||||||
(ii) | less, Consolidated Current Liabilities: | $[___, ___, ___] | ||||||
11.Consolidated Working Capital Adjustment (as of the date of determination):15(i) — (ii) = | $[___, ___, ___] |
15 | In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any Permitted Acquisition during such period;provided, that there shall be included with respect to any Permitted Acquisition during such period an amount (which may be a negative number) by which |
(i) | Consolidated Working Capital as of the beginning of such period (as of the date of determination for the Fiscal Quarter ending immediately prior to the prior four Fiscal Quarter Period): | $[___, ___, ___] | ||||||
(ii) | less, Consolidated Working Capital as of the end of such period (as of the date of determination): | $[___, ___, ___] | ||||||
12.Debt Service (for the prior four Fiscal Quarter period):16(i) + (ii) + (iii) = | $[___, ___, ___] | |||||||
(i) | Consolidated Net Cash Interest Expense for the relevant period17: | $[___, ___, ___] | ||||||
(ii) | the aggregate of all scheduled repayments of Indebtedness falling due during the relevant period: | $[___, ___, ___] | ||||||
less:(a) + (b) +(c) + (d) = | $[___, ___, ___] | |||||||
(a) | any amounts falling due under any overdraft or revolving facility (including, without limitation, the Revolving Commitments and any Ancillary Facility) and which were available for simultaneous redrawing according to the terms of that facility: | $[___, ___, ___] | ||||||
(b) | any mandatory prepayment made pursuant to Section 2.14 of the Credit Agreement: | $[___, ___, ___] | ||||||
(c) | any such obligations owed to any Group Member: | $[___, ___, ___] | ||||||
(d) | any prepayment of Indebtedness existing on the Closing Date which is required to be repaid under the terms of the Credit Agreement: | $[___, ___, ___] | ||||||
(iii) | the amount of the capital element of any payments in respect of the relevant fiscal period payable under any Capital Lease entered into by any Group Member: | $[___, ___, ___] | ||||||
13.Debt Service Coverage Ratio (as of the last day of any Fiscal Quarter):(i) / (ii) = | ||||||||
(i) | Consolidated Cash Flow for Debt Service for the four-Fiscal Quarter Period then ended (see item 3 above): | $[___, ___, ___] | ||||||
(ii) | Debt Service for such four-Fiscal Quarter period (see item 12 above): | $[___, ___, ___] | ||||||
Actual: | _.__:1.00 | |||||||
Required: | 1.00:1.00 |
the Consolidated Working Capital acquired in such Permitted Acquisition as at the time of such acquisition exceeds (or is less than) Consolidated Working Capital at the end of such period. | ||
16 | For any testing period ending less than four Fiscal Quarters after the Closing Date, Debt Service shall be calculated by reference to the actual payments by the Group from the Closing Date to the testing date. | |
17 | This may not be the same amount as in item 7 for any testing period ending less than four Fiscal Quarters after the Closing Date. |
14.Interest Coverage Ratio (as of the last day of the relevant Fiscal Quarter):(i) / (ii) = | ||||||
(i) | Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended (see item 1 above): | $[___, ___, ___] | ||||
(ii) | Consolidated Net Cash Interest Expense for such four-Fiscal Quarter period (see item 7 above): | $[___, ___, ___] | ||||
Actual: | _.__:1.00 | |||||
Required: | _.__:1.00 | |||||
15.Leverage Ratio (as of the last day of the relevant Fiscal Quarter):(i) / (ii) = | ||||||
(i) | Consolidated Net Total Debt (see item 9 above): | $[___, ___, ___] | ||||
(ii) | Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended (see item 1 above): | $[___, ___, ___] | ||||
Actual: | _.__:1.00 | |||||
Required: | _.__:1.00 | |||||
16.Maximum Consolidated Capital Expenditures (as of the last day of the relevant Fiscal Year) (see item 2 above):18 | ||||||
Actual: | $[___, ___, ___] | |||||
Required: | $[___, ___, ___] |
18 | Consolidated Capital Expenditures (as adjusted in accordance with Section 6.07(c) of the Credit Agreement and item) in an aggregate amount for the Group, shall not be in excess of the corresponding amounts for the following Fiscal Years—2011: $50,000,000; 2012: $150,000,000; 2013: $150,000,000; 2014 and thereafter: $175,000,000. However, if the Leverage Ratio as of the last day of any Fiscal Year is less than [3.50:1.00], then the amount of Consolidated Capital Expenditures permitted in the next Fiscal Year as set forth in the table in Section 6.07(c) of the Credit Agreement shall be increased by $50,000,000. |
CREDIT AND GUARANTY AGREEMENT
(a) | as at [______]1 (such date, the “Determination Date”), the Determination Date, the Consolidated Adjusted EBITDA attributable to (i) the Loan Parties as a group (taking each entity on an unconsolidated basis and excluding all intercompany items) is no less than 85% of the earnings before interest, tax, depreciation and amortization of the Group and (ii) each Subsidiary of the Parent (other than a Loan Party) on an individual basis is no more than 3.0% of the earnings before interest, tax, depreciation and amortization of the Group; | ||
(b) | as at the Determination Date, the aggregate (without duplication) total Consolidated Total Assets of (i) the Loan Parties as a group (taking each entity on an unconsolidated basis and excluding all intercompany items) is no less than 85% of the total Consolidated Total Assets of the Group and (ii) each Subsidiary of the Parent (other than a Loan Party) on an individual basis is no more than 3.0% of the total Consolidated Total Assets of the Group; and | ||
(c) | as at the Determination Date, the aggregate (without duplication) turnover attributable to (i) the Loan Parties as a group (taking each entity on an unconsolidated basis and excluding all intercompany items) is no less than 85% of the aggregate turnover of the Group and (ii) each Subsidiary of the Parent (other than a Loan Party) on an individual basis is no more than 3.0% of the aggregate turnover of the Group. |
1 | To be the date of the most recent quarter’s financial statements provided to the Lenders pursuant to Section 5.01(a) or (b) of the Credit Agreement, as applicable, or, with respect to the first delivery hereof following the Closing Date, the financial statements dated as of December 31, 2010. |
GRIFOLS, S.A. | ||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
CREDIT AND GUARANTY AGREEMENT
1 | Or, if the Assignee is not a Qualifying Lender, the Assignee shall have provided satisfactory evidence to the Administrative Agent that Spanish Corporate Income Tax or Non-Resident Income Tax, as the case may be, is otherwise not applicable by way of withholding or deduction to any interest paid by the Foreign Borrower to such Assignee. |
(b) | in accordance with Section 2.20(c)(ii) of the Credit Agreement, it [has provided the Administrative Agent]/[will provide the Administrative Agent on or before the first succeeding Interest Payment Date after the Assignment Effective Date specified in this Assignment] with a validly issued, in accordance with applicable Spanish tax laws and regulations thereto, tax residence certificate issued by the tax authorities of its country of tax residence stating that such Assignee is resident for tax purposes therein (with the exception of a Qualifying Lender which qualifies as such pursuant to letters (d) and (e) of the definition of Qualifying Lender, in which case it will have to provide satisfactory evidence that such Qualifying Lender meets the requirements imposed under applicable tax laws in order for such interest to be paid without a deduction of withholding for or on account of Spanish taxes). In the event the Assignee is in a position to claim full exemption of withholding taxes imposed by the Kingdom of Spain pursuant to an applicable double tax treaty, the tax residence certificate to be provided by such Assignee must expressly state that the Assignee is a resident of its country of tax residence for purposes of the applicability of the double tax treaty between its country of tax residence and the Kingdom of Spain. |
(c) | it [is]/[is not] a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code (“Code”)); and | ||
(d) | in accordance with Section 2.20(c)(iii) of the Credit Agreement, it has provided the Administrative Agent with two properly completed and duly executed Internal Revenue Service Forms [W-9]/[W-8BEN]/[W-8ECI]/[W-8EXP]/[W-8IMY], together with any supplementary information the Assignee is required to transmit with such form, including a Certificate of Non-Bank Status confirming the Assignee’s eligibility for the portfolio interest exemption described in Section 871(h) of the Code where the Assignee intends to rely on such exemption. |
1. | Assignor: | ______________________ | ||
2. | Assignee: | ______________________ [and is an Affiliate/Approved Fund2] | ||
3. | U.S. Borrower: | Grifols Inc. | ||
4. | Foreign Borrower: | Grifols, S.A. | ||
5. | Administrative Agent: | Deutsche Bank AG New York Branch, as the administrative agent under the Credit Agreement | ||
6. | Credit Agreement: | The Credit and Guaranty Agreement dated as of November 23, 2010 (as it may be amended, supplemented or otherwise modified, the |
2 | Select as applicable. |
Aggregate Amounts | ||||||||||||
of | Amount of | |||||||||||
Commitment/Loans | Commitment/Loans | Percentage Assigned of | ||||||||||
Facility Assigned | for all Lenders | Assigned | Commitment/Loans3 | |||||||||
U.S. Tranche A Term Loans | [ ] | $ _____________ | _____________ | % | ||||||||
Foreign Tranche A Term Loans | [ ] | € _____________ | _____________ | % | ||||||||
U.S. Tranche B Term Loans | [ ] | $ _____________ | _____________ | % | ||||||||
Foreign Tranche B Term Loans | [ ] | € _____________ | _____________ | % | ||||||||
U.S. Revolving Loans | [ ] | $ _____________ | _____________ | % | ||||||||
U.S. Multicurrency Revolving Loans | [ ] | [_]4_____________ | _____________ | % | ||||||||
Foreign Revolving Loans | [ ] | € _____________ | _____________ | % |
3 | Set forth, to at least nine (9) decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
4 | Any Approved Currency. |
The terms set forth in this Assignment are hereby agreed to: |
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: |
Consented to and Accepted: [DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent | ||||
By: | ||||
Title: ]5 | ||||
[Consented to: GRIFOLS INC. | ||||
By: | ||||
Title: ]6 | ||||
[Consented to: | ||||
GRIFOLS, S.A. | ||||
By: | ||||
Title: ]7 | ||||
5 | To be added only if the consent of the Administrative Agent is required for the applicable assignment by the terms of the Credit Agreement. | |
6 | To be added only if the consent of the U.S. Borrower is required for the applicable assignment by the terms of the Credit Agreement. | |
7 | To be added only if the consent of the Foreign Borrower is required for the applicable assignment by the terms of the Credit Agreement. |
TO EXHIBIT D
AND ASSUMPTION AGREEMENT
CREDIT AND GUARANTY AGREEMENT
[NAME OF LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
CREDIT AND GUARANTY AGREEMENT
[GRIFOLS INC.] [GRIFOLS, S.A.] | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
CREDIT AND GUARANTY AGREEMENT
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS: |
[GRIFOLS INC.][GRIFOLS, S.A.] | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
CREDIT AND GUARANTY AGREEMENT
1 | To the extent any additional security documents, including any foreign law security documents, are required to be delivered by the Credit Agreement, such additional documentation will be separately delivered. |
[NAME OF SUBSIDIARY] | ||||
By: | ||||
Name: | ||||
Title: | ||||
____________________________
____________________________
Attention:
Telecopier
____________________________
____________________________
Attention:
Telecopier
ACKNOWLEDGED AND ACCEPTED, as of the date above first written: DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: |
CREDIT AND GUARANTY AGREEMENT
PAGE | ||||
SECTION 1. DEFINITIONS; GRANT OF SECURITY. | 1 | |||
1.1 General Definitions | 1 | |||
1.2 Definitions; Interpretation | 6 | |||
SECTION 2. GRANT OF SECURITY. | 7 | |||
2.1 Pledge and Grant of Security | 7 | |||
2.2 Certain Limited Exclusions | 8 | |||
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE. | 8 | |||
3.1 Security for Obligations | 8 | |||
3.2 Continuing Liability Under Collateral | 9 | |||
SECTION 4. CERTAIN PERFECTION REQUIREMENTS | 9 | |||
4.1 Delivery Requirements | 9 | |||
4.2 Control Requirements | 9 | |||
4.3 Intellectual Property Recording Requirements | 10 | |||
4.4 Other Actions | 11 | |||
4.5 Timing and Notice | 11 | |||
SECTION 5. REPRESENTATIONS AND WARRANTIES | 12 | |||
5.1 Grantor Information & Status | 12 | |||
5.2 Collateral Identification, Special Collateral. | 12 | |||
5.3 Ownership of Collateral and Absence of Other Liens | 13 | |||
5.4 Status of Security Interest | 13 | |||
5.5 Goods & Receivables | 14 | |||
5.6 Pledged Equity Interests, Investment Related Property | 15 | |||
SECTION 6. COVENANTS AND AGREEMENTS | 15 | |||
6.1 Grantor Information & Status | 15 | |||
6.2 Collateral Identification; Special Collateral; Defense of Collateral | 15 | |||
6.3 Ownership of Collateral and Absence of Other Liens | 16 | |||
6.4 Status of Security Interest | 16 | |||
6.5 Goods & Receivables | 16 | |||
6.6 Pledged Equity Interests, Investment Related Property | 18 | |||
SECTION 7. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL GRANTORS. | 19 | |||
7.1 Further Assurances | 19 | |||
7.2 Additional Grantors | 21 | |||
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. | 21 | |||
8.1 Power of Attorney | 21 | |||
8.2 No Duty on the Part of Collateral Agent or Secured Parties | 22 | |||
8.3 Appointment Pursuant to Credit Agreement | 22 | |||
SECTION 9. REMEDIES | 22 | |||
9.1 Generally | 22 |
i
PAGE | ||||
9.2 Application of Proceeds | 23 | |||
9.3 Sales on Credit | 24 | |||
9.4 Investment Related Property | 24 | |||
9.5 Grant of Intellectual Property License | 24 | |||
9.6 Intellectual Property | 25 | |||
9.7 Cash Proceeds; Deposit Accounts | 26 | |||
SECTION 10. COLLATERAL AGENT | 26 | |||
SECTION 11. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. | 27 | |||
SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM | 28 | |||
SECTION 13. MISCELLANEOUS. | 28 | |||
SCHEDULE 5.1 — GENERAL INFORMATION | ||||
SCHEDULE 5.2 — COLLATERAL IDENTIFICATION | ||||
SCHEDULE 5.4 — FINANCING STATEMENTS | ||||
EXHIBIT A — PLEDGE SUPPLEMENT | ||||
EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT | ||||
EXHIBIT C — SECURITIES ACCOUNT CONTROL AGREEMENT | ||||
EXHIBIT D — DEPOSIT ACCOUNT CONTROL AGREEMENT | ||||
EXHIBIT E — TRADEMARK SECURITY AGREEMENT | ||||
EXHIBIT F — PATENT SECURITY AGREEMENT | ||||
EXHIBIT G — COPYRIGHT SECURITY AGREEMENT | ||||
EXHIBIT H — FORM OF NOTICE OF SPECIFIED HEDGE AGREEMENT |
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3
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5
6
7
8
9
10
11
12
13
14
15
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(1) | subject to clause (b)(i) above, all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall |
18
thereupon become vested in the Collateral Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and | |||
(2) | in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth in Section 8.1; and |
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20
21
22
23
24
(1) | all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall |
25
be forthwith paid over or delivered to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 9.7 hereof; and | |||
(2) | without the consent of the Collateral Agent, a Grantor shall not, other than in the ordinary course of business and consistent with past practice, adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon. |
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27
28
GRIFOLS, INC., as Grantor | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF OTHER GRANTORS], as Grantor | ||||
By: | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK AG NEW YORK BRANCH as Collateral Agent | ||||
By: | ||||
Title: | ||||
By: | ||||
Title: | ||||
29
TO PLEDGE AND SECURITY AGREEMENT
(A) | Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational Identification Number of each Grantor: |
Chief Executive | ||||||||
Office/Sole Place of | ||||||||
Business (or | ||||||||
Full Legal | Type of | Jurisdiction of | Residence if Grantor | |||||
Name | Organization | Organization | is a Natural Person) | Organization I.D.# | ||||
(B) | Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor currently conducts business: |
Full Legal Name | Trade Name or Fictitious Business Name | |
(C) | Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure within past five (5) years: |
Grantor | Date of Change | Description of Change | ||
(D) | Agreements pursuant to which any Grantor is bound as debtor within past five (5) years: |
Grantor | Description of Agreement | |
SCHEDULE 5.1-1
TO PLEDGE AND SECURITY AGREEMENT
(A) | Pledged Stock: |
Percentage | ||||||||||||||
of | ||||||||||||||
Stock | No. of | Outstanding | ||||||||||||
Stock | Class of | Certificated | Certificate | Pledged | Stock of the | |||||||||
Grantor | Issuer | Stock | (Y/N) | No. | Par Value | Stock | Stock Issuer | |||||||
(B) | Pledged LLC Interests: |
Percentage of | |||||||||||
Outstanding | |||||||||||
LLC Interests of | |||||||||||
Limited | the Limited | ||||||||||
Liability | Certificated | Certificate No. | No. of Pledged | Liability | |||||||
Grantor | Company | (Y/N) | (if any) | Units | Company | ||||||
(C) | Pledged Partnership Interests: |
Type of | Percentage of | ||||||||||
Partnership | Outstanding | ||||||||||
Interests (e.g., | Partnership | ||||||||||
general or | Certificated | Certificate No. | Interests of the | ||||||||
Grantor | Partnership | limited) | (Y/N) | (if any) | Partnership | ||||||
(D) | Trust Interests or other Equity Interests not listed above: |
Percentage of | |||||||||||
Outstanding | |||||||||||
Class of Trust | Certificated | Certificate No. | Trust Interests | ||||||||
Grantor | Trust | Interests | (Y/N) | (if any) | of the Trust | ||||||
(E) | Pledged Debt: |
Original | Outstanding | |||||||||
Principal | Principal | |||||||||
Grantor | Issuer | Amount | Balance | Issue Date | Maturity Date | |||||
(F) | Securities Account: |
Share of Securities | ||||||
Grantor | Intermediary | Account Number | Account Name | |||
(G) | Deposit Accounts: |
Grantor | Name of Depositary Bank | Account Number | Account Name | |||
(H) | Commodity Contracts and Commodity Accounts: |
Name of Commodity | ||||||
Grantor | Intermediary | Account Number | Account Name | |||
(A) | Copyrights |
Registration Number | Registration Date (if | |||||||
Grantor | Jurisdiction | Title of Work | (if any) | any) | ||||
(B) | Copyright Licenses |
Registration Number (if | ||||||
Description of Copyright | any) of underlying | |||||
Grantor | License | Copyright | Name of Licensor | |||
(C) | Patents |
Patent | ||||||||
Number/(Application | Issue Date/(Filing | |||||||
Grantor | Jurisdiction | Title of Patent | Number) | Date) | ||||
(D) | Patent Licenses |
Description of Patent | Patent Number of | |||||
Grantor | License | underlying Patent | Name of Licensor | |||
(E) | Trademarks |
Registration | ||||||||
Number/(Serial | Registration | |||||||
Grantor | Jurisdiction | Trademark | Number) | Date/(Filing Date) | ||||
(F) | Trademark Licenses |
Description of Trademark | Registration Number of | |||||
Grantor | License | underlying Trademark | Name of Licensor | |||
(G) | Trade Secret Licenses |
Grantor | Description of Trade Secret License | Name of Licensor | ||
Grantor | Commercial Tort Claims | |
Grantor | Description of Letters of Credit | |
Grantor | Description of Property | Name and Address of Third Party | ||
PLEDGE AND SECURITY AGREEMENT
Grantor | Filing Jurisdiction(s) | |
TO PLEDGE AND SECURITY AGREEMENT
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO PLEDGE AND SECURITY AGREEMENT
(A) | Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational Identification Number of each Grantor: |
Chief Executive | ||||||||
Office/Sole Place of | ||||||||
Business (or | ||||||||
Full Legal | Type of | Jurisdiction of | Residence if Grantor | |||||
Name | Organization | Organization | is a Natural Person) | Organization I.D.# | ||||
(B) | Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor currently conducts business: |
Full Legal Name | Trade Name or Fictitious Business Name | |
(C) | Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure within past five (5) years: |
Grantor | Date of Change | Description of Change | ||
(D) | Agreements pursuant to which any Grantor is bound as debtor within past five (5) years: |
Grantor | Description of Agreement | |
TO PLEDGE AND SECURITY AGREEMENT
Percentage | ||||||||||||||
of | ||||||||||||||
Stock | No. of | Outstanding | ||||||||||||
Stock | Class of | Certificated | Certificate | Pledged | Stock of the | |||||||||
Grantor | Issuer | Stock | (Y/N) | No. | Par Value | Stock | Stock Issuer | |||||||
Percentage of | ||||||||||
Outstanding | ||||||||||
LLC Interests of | ||||||||||
Limited | the Limited | |||||||||
Liability | Certificated | Certificate No. | No. of Pledged | Liability | ||||||
Grantor | Company | (Y/N) | (if any) | Units | Company | |||||
Type of | Percentage of | |||||||||
Partnership | Outstanding | |||||||||
Interests (e.g., | Partnership | |||||||||
general or | Certificated | Certificate No. | Interests of the | |||||||
Grantor | Partnership | limited) | (Y/N) | (if any) | Partnership | |||||
Percentage of | ||||||||||
Outstanding | ||||||||||
Class of Trust | Certificated | Certificate No. | Trust Interests | |||||||
Grantor | Trust | Interests | (Y/N) | (if any) | of the Trust | |||||
Original | Outstanding | |||||||||
Principal | Principal | |||||||||
Grantor | Issuer | Amount | Balance | Issue Date | Maturity Date | |||||
Share of Securities | ||||||
Grantor | Intermediary | Account Number | Account Name | |||
Grantor | Name of Depositary Bank | Account Number | Account Name | |||
Name of Commodities | ||||||
Grantor | Intermediary | Account Number | Account Name | |||
Grantor | Date of Acquisition | Description of Acquisition | ||
Registration Number | Registration Date (if | |||||||
Grantor | Jurisdiction | Title of Work | (if any) | any) | ||||
Registration Number (if | ||||||
Description of Copyright | any) of underlying | |||||
Grantor | License | Copyright | Name of Licensor | |||
Patent | ||||||||
Number/(Application | Issue Date/(Filing | |||||||
Grantor | Jurisdiction | Title of Patent | Number) | Date) | ||||
Description of Patent | Patent Number of | |||||
Grantor | License | underlying Patent | Name of Licensor | |||
Registration | ||||||||
Number/(Serial | Registration | |||||||
Grantor | Jurisdiction | Trademark | Number) | Date/(Filing Date) | ||||
Description of Trademark | Registration Number of | |||||
Grantor | License | underlying Trademark | Name of Licensor | |||
Grantor | Description of Trade Secret License | Name of Licensor | ||
Grantor | Commercial Tort Claims |
Grantor | Description of Letters of Credit |
Grantor | Description of Property | Name and Address of Third Party |
PLEDGE AND SECURITY AGREEMENT
Grantor | Filing Jurisdiction(s) |
TO PLEDGE AND SECURITY AGREEMENT
Name of Grantor | Location of Equipment and Inventory |
TO PLEDGE AND SECURITY AGREEMENT
Pledgor: | [Name and Address of Pledgor] | |
Attention: [________________] | ||
Telecopier: [________________] | ||
Collateral Agent: | Deutsche Bank AG New York Branch | |
Attention: [________________] | ||
Telecopier: [________________] | ||
Issuer: | [Insert Name and Address of Issuer] | |
Attention: [________________] | ||
Telecopier: [________________] |
[NAME OF PLEDGOR], as Pledgor | ||||
By: | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK AG NEW YORK BRANCH, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF ISSUER], as Issuer | ||||
By: | ||||
Name: | ||||
Title: | ||||
Attention: [ ]
Very truly yours, Deutsche Bank AG New York Branch as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO PLEDGE AND SECURITY AGREEMENT
Debtor: | [Name and Address of Debtor] | |
Attention: [_______________] | ||
Telecopier: [_______________] | ||
Collateral Agent: | Deutsche Bank AG New York Branch | |
Attention: [_______________] | ||
Telecopier: [_______________] | ||
Securities Intermediary: | [Name and Address of Securities Intermediary] | |
Attention: [_______________] | ||
Telecopier: [_______________] |
[DEBTOR], as Debtor | ||||
By: | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK AG NEW YORK BRANCH, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF SECURITIES INTERMEDIARY], as Securities Intermediary | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO SECURITIES ACCOUNT CONTROL AGREEMENT
Attention: [__________________]
Very truly yours, Deutsche Bank AG New York Branch, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO SECURITIES ACCOUNT CONTROL AGREEMENT
TO SECURITIES ACCOUNT CONTROL AGREEMENT
Attention: [________________]
Very truly yours, Deutsche Bank AG New York Branch, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO PLEDGE AND SECURITY AGREEMENT
Debtor: | [Name and Address of Debtor] | |
Attention: [_______________] | ||
Telecopier: [_______________] | ||
Collateral Agent: | Deutsche Bank AG New York Branch | |
Attention: [_______________] | ||
Telecopier: [_______________] | ||
Financial Institution: | [Name and Address of Financial Institution] | |
Attention: [_______________] | ||
Telecopier: [_______________] |
[DEBTOR], as Debtor | ||||
By: | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK AG NEW YORK BRANCH, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF FINANCIAL INSTITUTION], as Financial Institution | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
Attention: [_________________]
Very truly yours, Deutsche Bank AG New York Branch, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
Attention: [_______________]
Very truly yours, Deutsche Bank AG New York Branch, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
TO PLEDGE AND SECURITY AGREEMENT
all United States, and foreign trademarks, trade names, trade dress, corporate names, company names, business names, fictitious business names, Internet domain names, service marks, certification marks, collective marks, logos, other source or business identifiers, designs and general intangibles of a like nature, whether or not registered, and with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications listed or required to be listed in Schedule A attached hereto, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) all rights to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing or for any injury to the related goodwill, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights of any kind accruing thereunder or pertaining thereto throughout the world. |
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF _________________________ | ) | |||||
) | ss. | |||||
COUNTY OF ______________________ | ) |
Notary Public [NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF _________________________ | ) | |||||
) | ss. | |||||
COUNTY OF ______________________ | ) |
GRANTORS]
as Collateral Agent
By: | ||||
Name: | ||||
Title: | ||||
to
TRADEMARK SECURITY AGREEMENT
Mark | Serial No. | Filing Date | Registration No. | Registration Date | ||||
TO PLEDGE AND SECURITY AGREEMENT
EXHIBIT F-1
EXHIBIT F-2
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT F-3
as Collateral Agent
By: | ||||
Name: | ||||
Title: |
EXHIBIT F-4
to
PATENT SECURITY AGREEMENT
Title | Application No. | Filing Date | Patent No. | Issue Date | ||||||||||||
EXHIBIT F-5
TO PLEDGE AND SECURITY AGREEMENT
EXHIBIT G-1
EXHIBIT G-2
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF | ) | |||
) | ss. | |||
COUNTY OF | ) |
Notary Public [NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
STATE OF | ) | |||
) | ss. | |||
COUNTY OF | ) |
EXHIBIT G-3
DEUTSCHE BANK AG NEW YORK BRANCH, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: |
EXHIBIT G-4
to
COPYRIGHT SECURITY AGREEMENT
Title | Application No. | Filing Date | Registration No. | Registration Date | ||||
Description of Copyright License | Name of Licensor | Registration Number of underlying Copyright | ||
EXHIBIT G-5
TO PLEDGE AND SECURITY AGREEMENT
1 | The current version of the Pledge & Security Agreement does not require that this notice be delivered in order for a hedge counterparty to be a secured party. However, a hedge counterparty may nonetheless decide to deliver this notice to ensure that the agent knows it is a secured party and to strengthen its claims as a secured party. |
EXHIBIT H-1
NAME OF LENDER COUNTERPARTY | ||||
By: | ||||
(name) | ||||
(title) |
EXHIBIT G-2
CREDIT AND GUARANTY AGREEMENT
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Attn: Melissa S. Alwang, Esq.
EXHIBIT I-1
EXHIBIT I-2
EXHIBIT I-3
EXHIBIT I-4
EXHIBIT I-5
EXHIBIT I-6
EXHIBIT I-7
EXHIBIT I-8
EXHIBIT I-9
EXHIBIT I-10
EXHIBIT I-11
EXHIBIT I-12
EXHIBIT I-13
[NAME OF MORTGAGOR] | ||||
By: | ||||
Name: | ||||
Title: |
EXHIBIT I-14
MORTGAGE
EXHIBIT I-A-1