SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.4
This SECOND SUPPLEMENTAL INDENTURE (the “Second Supplemental
Indenture”) dated as of October 4, 2011, among GRIFOLS DEUTSCHLAND GMBH, a German corporation (the
“Guaranteeing Subsidiary”), GRIFOLS INC., a Virginia corporation (the “Company”), and THE BANK OF
NEW YORK MELLON, N.A., as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
supplemental indenture, dated June 1, 2011 pursuant to which the Company agreed to
unconditionally assume the Escrow Issuer’s Obligations under the indenture, dated as of
January 21, 2011 (the “Indenture”), providing for the initial issuance of $1,100,000,000
aggregate principal amount of 8.25% Senior Notes due 2018 (the “Notes”) and the Notes on
the terms and subject to the conditions set forth in the Indenture;
WHEREAS, the Indenture provides that under certain circumstances subsequent
subsidiary guarantors shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company’s Obligations under the Notes and the Indenture on the terms and conditions set
forth herein and under the Indenture (the “Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Second Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant
and agree for the equal and ratable benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
(2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as follows:
(a) The Guaranteeing Subsidiary hereby becomes a party to the Indenture as a
Guarantor and as such will have all of the rights and be subject to all of the
obligations and agreements of a Guarantor under the Indenture. The Guaranteeing
Subsidiary agrees to be bound by all of the provisions of the Indenture applicable
to a Guarantor and to perform all of the obligations and agreements of a Guarantor
under the Indenture.
(b) The Guaranteeing Subsidiary agrees, on a joint and several basis with all
the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to
each Holder of the Notes and the Trustee the Obligations pursuant to Article 10 of
the Indenture on a senior basis.
(3) Limitation on Guarantor Liability. To the extent a Guarantor or Guaranteeing
Subsidiary which is a German limited liability company (Gesellschaft mit beschränkter
Haftung – GmbH) or a limited partnership (Kommanditgesellschaft) with a GmbH as its sole
general partner
(Komplementär) (GmbH & Co. KG) (the “Affected German Guarantor”) guarantees Obligations under the
Indenture, the parties hereto agree that enforcement of that guaranty shall be limited to the
extent that a payment under this guaranty has the effect of (i) reducing the Affected German
Guarantor’s Net Assets (Nettovermögen) to an amount less than its share capital (Stammkapital)
(Begründung einer Unterbilanz), and, as a result, cause a violation of Section 30 of the German
Limited Liability Companies Act (GmbH-Gesetz) or (ii) of further reducing its Net Assets which are
already an amount less than its share capital (Stammkapital) (Vertiefung einer Unterbilanz), and,
as a result, cause a violation of Section 30 of the German Limited Liability Companies Act
(GmbH-Gesetz) or (iii) violating other applicable German law which may cause the managing
directors of the Affected German Guarantor to be personally liable.
For purposes of this Section (3), “Net Assets” shall mean the assets, pursuant to
Section 266 (2) (A), (B), (C), (D) and (E) of the German Commercial Code
(Handelsgesetzbuch, HGB) less the sum of the non-subordinated liabilities pursuant to
Section 266 (3) (B), (C), (D) and (E) HGB. The value of the Net Assets shall be determined
in accordance with general accepted accounting principles (Grundsätze ordnungsgemäßer
Buchführung) under the HGB consistently applied by the Affected German Guarantor in
preparing its unconsolidated balance sheets (Jahresabschluss) according to Section 42
German Limited Liability Companies Act (GmbHG), Sections 242, 264 HGB in the previous
years.
(4) Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.
(5) Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(6) Counterparts. The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
(7) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
(8) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Second Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture
to be duly executed, all as of the date first above written.
| GRIFOLS DEUTSCHLAND GMBH |
||||
| By: | /s/ Xxxxx Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxxx Roca | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx Xxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| THE BANK OF NEW YORK MELLON, N.A., as Trustee |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
Acknowledged by:
GRIFOLS INC.
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Chief Executive Officer | |||
[Grifols Inc. Second Supplemental Indenture Signature Page]
