Exhibit
10.12


 


CERBERUS
CAPITAL MANAGEMENT, L.P.


299
Park Avenue


New
York, New York 10022


 


July 22, 2008


 


Talecris Biotherapeutics
Holdings Corp.


Talecris Biotherapeutics, Inc.


P.O. Box 100526


4101 Research Commons


79 T.W. Alexander Drive


Research Triangle Park,
NC 27709


 


Ladies and Gentlemen:


 


Cerberus Capital
Management, L.P.,  through one or more of
its affiliated funds and managed accounts (“Cerberus”), directly or indirectly
owns 74.3% of the outstanding Membership Interests in Talecris Plasma Holdings,
LLC (“Holdings”), which in turn owns a controlling interest in Talecris
Biotherapeutics Holdings Corp. (the “Company”). 
The Company is one of the Borrowers under the First Lien Term Loan,
Second Lien Term Loan and Revolving Credit Agreements dated December 6,
2006 (together the “Credit Agreements”).  
Capitalized terms used but not defined herein shall have the meanings
set forth in the Credit Agreements.


 


In April 2008 the
Company advised us of the possibility that on or after June 30, 2008 there
may occur Events of Default under the First Lien Term Loan (the “Term Loan”)
arising out of a potential failure on the part of the Borrowers to comply with
the Covenant set forth in Section 6.11(a) of the Term Loan (the “Section 6
Covenant”).  Under the Term Loan, if a
Specified Equity Contribution is made to the Borrowers on or prior to the day
that is 20 days after the day on which financial statements are required to be
delivered to the Administrative Agent in respect of a Fiscal Quarter, then the
full amount of such Specified Equity Contribution shall, at the request of the
Borrowers, be included in the calculation of Adjusted EBITDA for the purposes
of determining compliance with the Section 6 Covenant as of the end of
such Fiscal Quarter and applicable subsequent periods.


 


On April 25, 2008
Cerberus provided a commitment letter to Holdings and the Company (the “April 2008
Commitment Letter”) under which, on and subject to the terms and conditions set
forth therein, Cerberus confirmed certain commitments to provide or cause to be
provided to Holdings financing in a specified amount.


 


Holdings and the Company
have requested that Cerberus extend its commitment set forth in the April 2008
Commitment Letter to cover the first Fiscal Quarter in 2009 and 


 

















 


Cerberus is willing to do
so, subject to the terms and conditions contained herein.  This letter (the “July 2008 Commitment
Letter”) will supersede and replace the April 2008 Commitment letter in
its entirety.


 


By this July 2008
Commitment Letter, Cerberus confirms its irrevocable commitment that, if
pursuant to Article VII(d) and/or Article VII(e) of the
Term Loan (a)  an Event of Default under the Section 6 Covenant (the “Section 6
Covenant Default”) would otherwise have occurred as of the end of any Fiscal
Quarter during 2008 or at the end of the first Fiscal Quarter in 2009, and (b) the
Section 6 Covenant Default is not theretofore waived by the Lenders,
Cerberus will, subject to and contingent upon the satisfaction or waiver by
Cerberus in writing of each of the conditions set forth below, (i) provide
or cause to be provided to Holdings financing in an amount equal to the
Committed Amount (as hereinafter defined), and (ii) cause Holdings to
contribute such amount to the Company in the form of a Specified Equity
Contribution.  For purposes of this July 2008
Commitment Letter, the term “Committed Amount” with respect to any Fiscal
Quarter shall mean the lesser of (A) the minimum Specified Equity
Contribution necessary to result in compliance with the Section 6 Covenant
as of the end of such Fiscal Quarter and any additional amount which, based
upon the Company’s most recently prepared financial forecast,  is reasonably expected to be required to cure
any Event of Default under the Section 6 Covenant for the remaining Fiscal
Quarters in 2008 and the first Fiscal Quarter in 2009, multiplied by the
percentage of the outstanding Membership Interests in Holdings then owned,
directly or indirectly, by Cerberus, or (B) $22,290,000.


 


The obligation of
Cerberus to provide or cause to be provided the Committed Amount is subject to
and contingent upon the satisfaction (or waiver by Cerberus) of each of the
following conditions: (i) Ampersand Ventures, L.P. shall have concurrently
or previously provided the financing to Holdings contemplated by its commitment
letter dated the date hereof, (ii) the Credit Agreements shall not have
been amended, modified, or terminated, nor shall any of the provisions thereof
have been waived,  without the prior
written consent of Cerberus, which consent shall not be unreasonably withheld, (iii) the
independent members of the Board of Directors of the Company, acting on behalf
of the Company, shall have approved all transactions arising from or relating
to the Specified Equity Contribution, (iv) as of the date thereof, no
Event of Default shall have occurred and be continuing, nor shall there have
occurred or be in existence any event or condition that, with notice or lapse
of time or both, would constitute an Event of Default, in either case other than
(a) the Section 6 Covenant Default that will be cured by payment of
the Committed Amount, or (b) an Event of Default that has theretofore been
irrevocably cured or waived, and (v) the Borrowers shall have duly made on
a timely basis all necessary elections to have the Specified Equity
Contribution included in the calculation of Adjusted EBITDA for the purposes of
determining compliance with the Section 6 Covenant during the term of
the  Term Loan.


 


This July 2008
Commitment Letter is intended solely for the benefit of Holdings, the Company
and Cerberus.  There is no express or
implied intention to benefit, nor may any provision hereof be relied upon or
enforced by, any person or entity other than Holdings, the 


 


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Company or Cerberus, and
nothing contained in this July 2008 Commitment Letter is intended, nor
shall anything herein be construed, to confer any rights, legal or equitable,
in any person or entity other than Holdings, the Company or Cerberus.  This letter agreement shall be binding upon
and inure to the benefit of Holdings, the Company and Cerberus.    None of the parties may assign this July 2008
Commitment Letter or any of their respective rights or obligations hereunder
(by operation of law or otherwise) without the prior written consent of the
other parties, and any purported assignment in violation of this agreement is
void, ab initio.


 


Notwithstanding any other
provision of this July 2008 Commitment Letter to the contrary, under no
circumstances shall (a) the liability of Cerberus and its affiliates and
their respective employees, officers, directors, members, partners, managers,
agents, or representatives hereunder (including, without limitation, for or by
reason of any breach of this July 2008 Commitment Letter ) exceed in the
aggregate the Committed Amount for any reason or (b) Cerberus or its
affiliates or any of their respective 
employees, officers, directors, members, partners, managers, agents, or
representatives  be liable for any punitive,
indirect or consequential damages, lost profits, lost revenues or diminution in
value, including but not limited to loss of goodwill, regardless of whether or
not such parties were advised or aware of the prospect of such damages.  This July 2008 Commitment Letter shall
become effective upon Holdings’ and the Company’s acceptance of the terms and
conditions hereof as evidenced by the signature of their duly authorized
representative in the space set forth below and shall expire automatically
without any further action on the part of any party on the earliest to occur of
(i) the 21st calendar day following the last day on which,
under the Credit Agreements, financial statements are required to be delivered
to the Administrative Agent in respect of the first Fiscal Quarter in 2009, (ii) the
consummation of a registered initial public offering of the Company’s stock at
least $250,000,000 of the net proceeds of which are applied to the repayment of
outstanding indebtedness (including without limitation principal, prepayment
penalties and accrued but unpaid interest) under the Credit Facilities or (iii) a
Change of Control of the Company.


 


This July 2008
Commitment Letter shall be governed by, and construed in accordance with, the
laws of the State of New York (without giving effect to the conflict of laws
principles thereof).  Each party to this July 2008
Commitment Letter hereby irrevocably and unconditionally agrees that any
action, suit or proceeding, at law or equity, arising out of or relating to
this July 2008 Commitment Letter or any agreements or transactions
contemplated hereby shall only be brought in any federal court of the Southern
District of New York or any state court located in New York County, State of
New York, and hereby irrevocably and unconditionally expressly submits to the
personal jurisdiction and venue of such courts for the purposes thereof and
hereby irrevocably and unconditionally waives (by way of motion, as a defense
or otherwise) any and all jurisdictional, venue and convenience objections or
defenses that such party may have in such action, suit or proceeding.  Each party hereby irrevocably and
unconditionally consents to the service of process of any of the aforementioned
courts.  Nothing herein contained shall
be deemed to affect the right of any party to serve process in any manner
permitted by law or commence legal proceedings or otherwise proceed against any
other party in 


 


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any other jurisdiction to
enforce judgments obtained in any action, suit or proceeding brought pursuant
to this section.


 


EACH PARTY ACKNOWLEDGES
AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS JULY 2008
COMMITMENT LETTER IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE EACH SUCH PARTY IRREVOCABLY AND UNDCONDITIONALLY, WAIVES ANY RIGHT
SUCH PARTY MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION,
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT.


 


This July 2008
Commitment Letter may be executed by the parties in any number of separate
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute one and the same
instrument.


 


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[SIGNATURE PAGE TO
JULY 2008 COMMITMENT LETTER]


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  CERBERUS CAPITAL
  MANAGEMENT, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Lomasky

  
	
   

  	
  Name: Jeffrey Lomasky

  
	
   

  	
  Title: Chief Financial
  Officer

  



 


Accepted as of the date


first above written:


 


	
  TALECRIS BIOTHERAPEUTICS
  HOLDINGS CORP.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ John M. Hanson

  	
   

  
	
  Name: John M. Hanson

  
	
  Title: Chief Financial
  Officer

  



 


 


	
  TALECRIS
  BIOTHERAPEUTICS, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ John M. Hanson

  	
   

  
	
  Name: John M. Hanson

  
	
  Title: Chief Financial
  Officer

  



 


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