exv10w4






Exhibit
10.4



Execution Version




COUNTERPART AGREEMENT




     This
COUNTERPART AGREEMENT, dated June 1, 2011 (this
“Counterpart Agreement”) is
delivered pursuant to that certain Credit and Guaranty Agreement, dated as of November 23,
2010 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the
terms defined therein and not otherwise defined herein being used herein as therein defined),
by and among Grifols Inc., a Delaware corporation (the “U.S. Borrower”), a wholly-owned
subsidiary of Grifols, S.A., a sociedad anónima organized under the laws of the Kingdom of
Spain (in such capacity thereunder the “Parent”, in its capacity as borrower thereunder the
“Foreign Borrower”, and jointly with the U.S. Borrower the “Borrowers”), the Parent and
certain Subsidiaries of the Parent, as Guarantors, the Lenders party thereto from time to
time, and Deutsche Bank AG New York Branch (“DBNY”), as Administrative Agent (together with
its permitted successors in such capacity, the “Administrative Agent”) and as Collateral Agent
(together with its permitted successors in such capacity, the “Collateral Agent”).




     Section 1. Pursuant to Section 5.12 of the Credit Agreement, the undersigned hereby:




     (a) agrees that this Counterpart Agreement may be attached to the Credit
Agreement and that by the execution and delivery hereof, the undersigned becomes a
Guarantor under the Credit Agreement and agrees to be bound by all of the terms
thereof;




     (b) represents and warrants that each of the representations and warranties set
forth in the Credit Agreement and each other Loan Document and applicable to the
undersigned is true and correct both before and after giving effect to this
Counterpart Agreement, except to the extent that any such representation and warranty
relates solely to any earlier date, in which case such representation and warranty is
true and correct as of such earlier date;




     (c) no event has occurred or is continuing as of the date hereof, or will result
from the transactions contemplated hereby on the date hereof, that would constitute an
Event of Default or a Default;




     (d) agrees, to irrevocably, unconditionally, jointly and severally with the other
Guarantors, to guaranty the due and punctual payment in full of all Obligations when
the same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would become
due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. § 362(a)) and in accordance with Article VII of the Credit Agreement;
and



     Section 2. The undersigned agrees from time to time, upon request of Administrative
Agent, to take such additional actions and to execute and deliver such additional documents
and instruments as Administrative Agent may request to effect the transactions contemplated
by, and to carry out the intent of, this Agreement. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated, except by an instrument in writing
signed by the party (including, if applicable, any party required to evidence its consent to
or acceptance of this Agreement) against whom enforcement of such change, waiver, discharge or
termination is sought. Any notice or other communication herein required or permitted to be
given shall be given pursuant to Section 10.01 of the Credit Agreement, and for all purposes
thereof, the notice address of the undersigned shall be the address as set forth on the
signature page hereof. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and



 









 




enforceability of the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.




     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW
OTHER THAN THE LAW OF THE STATE OF NEW YORK.



[Remainder of page intentionally left blank]



 









 




IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement to be duly
executed and delivered by its duly authorized officer as of the date above first written.




	 	 	 	 	 
	 	BIOMAT USA, INC.

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GRIFOLS BIOLOGICALS, INC.

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TELECRIS BIOTHERAPEUTICS, INC.

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TELECRIS PLASMA RESOURCES INC.

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MOVACO, S.A.

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DIAGNOSTIC GRIFOLS, S.A.

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	INSTITUTO GRIFOLS, S.A.

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 


Counterpart Agreement








 









 








	 	 	 	 	 
	 	LABORATORIES GRIFOLS, S.A.

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GRIFOLS ITALIA S.P.A.

 	 
	 	By:  	/s/
Victor Grifols Roura	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TELECRIS BIOTHERAPEUTICS GMBH

 	 
	 	By:  	/s/
Thierry Heinrich	 
	 	 	Name:  	Thierry Heinrich	 
	 	 	Title:  	Managing Director	 
	 



Address
for Notices:



U.S. Borrower and all U.S. Subsidiaries:



GRIFOLS INC.

2410 Lillyvale Ave.

Los Angeles,CA

90032-3514

Attention: David Bell

Facsimile: 323-441-7151



Parent,
Foreign Borrower and all Foreign Subsidiaries:



GRIFOLS
S.A.

Avinguda de la Generalitar, 152

Parque empresarial Can Sant Joan

08174 Sant Cugat del Vallès, Barcelona — Spain

Attention: Alfredo Arroyo

Facsimile: 34 934 102 513



In each case, with a copy to:



Proskauer
Rose LLP

11 Times Square

New York, NY 10036-8299

Attention: Carlos E. Martinez

Facsimile: 212-969-2900



Counterpart Agreement







 









 








	 	 	 	 	 
	 	LABORATORIES GRIFOLS, S.A.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GRIFOLS ITALIA S.P.A.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TELECRIS BIOTHERAPEUTICS GMBH

 	 
	 	By:  	/s/
Thierry HEINRICH
 	 
	 	 	Name:  	Thierry HEINRICH 	 
	 	 	Title:  	Managing Director 	 
	 



Address for Notices:



U.S. Borrower and all U.S. Subsidiaries:



GRIFOLS INC.

2410 Lillyvale Ave.

Los Angeles, CA

90032-3514

Attention: David Bell

Facsimile: 323-441-7151



Parent, Foreign Borrower and all Foreign Subsidiaries:



GRIFOLS
S.A.

Avinguda de la Generalitat, 152

Parque empresarial Can Sant Joan

08174 Sant Cugat del Vallès, Barcelona- Spain

Attention: Alfredo Arroyo

Facsimile: 34 934 102 513




In each case, with a copy to:



Proskauer Rose LLP

11 Times Square

New York, NY 10036-8299

Attention: Carlos E. Martinez

Facsimile: 212-969-2900



Counterpart Agreement







 









 








ACKNOWLEDGED
AND ACCEPTED,

as of the date above first written:




DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent and Collateral Agent




	 	 	 	 
	 	 
	By:  	/s/
Carin Keegan
 	 
	 	Name:  	Carin Keegan 	 
	 	Title:  	Director 	 
	 



	 	 	 	 
	 	 
	By:  	/s/
Erin Morrissey
 	 
	 	Name:  	Erin Morrissey 	 
	 	Title:  	Director 	 
	 


Counterpart
Agreement