exv4w5






Exhibit 4.5




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made and entered into as of
January 21, 2011, by and among Giant Funding Corp., a Delaware corporation (the “Escrow
Corporation”), and Deutsche Bank Securities Inc. (“DBSI”), as representative of the several
initial purchasers listed on Schedule 1 to the Purchase Agreement (as defined below) (collectively,
the “Initial Purchasers”), each of whom has agreed to purchase a portion of the
$1,100,000,000 aggregate principal amount of the Companys 8.25% Senior Notes due 2018 (the
“Initial Notes”) to be guaranteed by the Guarantors (the “Guarantees”) pursuant to
the Purchase Agreement. The Initial Notes and the Guarantees are herein collectively referred to as
the “Securities”. On the Completion Date, Grifols Inc., a Virginia corporation (the
“Company”), Grifols, S.A. (the “Parent Guarantor”) and each of the subsidiaries of
Parent that are guarantors under the Credit Facilities (as defined in the Purchase Agreement)
(other than any foreign subsidiary of the Company) (the “Subsidiary Guarantors”) will
execute a joinder agreement in the form of Exhibit A (the “Joinder Agreement”) pursuant to
which the Company, the Parent Guarantor and the Subsidiary Guarantors as of the Completion Date
will become party to this Agreement.



     This Agreement is made pursuant to the Purchase Agreement, dated January 12, 2011 (the
“Purchase Agreement”), among the Escrow Corporation, the Company, the Parent Guarantor and
the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of
the holders from time to time of the Securities, including the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Securities, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 7(h) of the Purchase
Agreement.



     For
purposes of this Agreement only (x) prior to the Completion Date references to “Company”
shall be deemed references to Giant Funding Corp. and (y) on and after the Completion Date
references to the “Company” shall be deemed a reference to Grifols Inc.



     In consideration of the foregoing, the parties hereto agree as follows:



     1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:




     “Additional Guarantor” shall mean any subsidiary of Parent Guarantor that exe-
cutes a Guarantee under the Indenture after the Completion Date.




     “Business Day” shall mean any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to remain
closed.




     “Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.




     “Completion Date” shall have the meaning set forth in the Purchase
Agreement.




     “DBSI” shall have the meaning set forth in the preamble.



 









 






     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from
time to time.




     “Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.




     “Exchange Offer” shall mean the exchange offer by the Parent Guarantor, the Company
and the Subsidiary Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.




     “Exchange Offer Registration” shall mean a registration under the Securities Act
effected pursuant to Section 2(a) hereof.




     “Exchange
Offer Registration Statement” shall mean an exchange offer registration statement
on Form F-4 (or, if applicable, on another appropriate form) and all amendments and supplements
to such registration statement, in each case including the Prospectus contained therein or deemed
a part thereof, all exhibits thereto and any document incorporated by reference therein.




     “Exchange Securities” shall mean senior notes issued by the Company and guaranteed by
the Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.




     “Free Writing Prospectus” shall mean each free writing prospectus (as defined in Rule
405 under the Securities Act) prepared by or on behalf of the Company or used or referred to by
the Company in connection with the sale of the Securities or the Exchange Securities.




     “Guarantee” shall mean the guarantee of the Securities and Exchange Securities by
any Guarantor under the Indenture.




     “Guarantors” shall mean, on the Completion Date upon execution and delivery of the
Joinder Agreement, the Parent Guarantor and the Subsidiary Guarantors.




     “Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided
that for purposes of Sections 4 and 5 of this Agreement, the
term “Holders” shall include
Participating Broker-Dealers.




     “Holders’ Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.




     “Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.




     “Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.



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     “Indenture” shall mean the Indenture relating to the Securities dated as of January
21, 2011 between the Escrow Corporation and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “Trustee”), as the same may be supplemented or amended from time to time in accordance
with the terms thereof.




     “Information” shall have the meaning set forth in Section 3(a)(xiv)
hereof.




     “Initial Purchasers” shall have the meaning set forth in the preamble.




     “Inspectors” shall have the meaning set forth in Section 3(a)(xiv) hereof.




     “Issue Date” shall mean January 21, 2011.




     “Issuer Information” shall have the meaning set forth in Section 5(a) hereof.




     “Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of the outstanding Registrable Securities; provided that whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required hereunder, any
Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage or amount; and provided, further, that if the Company shall issue any
additional Securities under the Indenture prior to consummation of the Exchange Offer or, if
applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and
the Registrable Securities to which this Agreement relates shall be treated together as one class
for purposes of determining whether the consent or approval of Holders of a specified percentage
of Registrable Securities has been obtained.




     “Parent Guarantor” shall have the meaning set forth in the preamble and shall also
include the Parent Guarantor’s successors.




     “Participating Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.




     “Person” shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or political
subdivision thereof.




     “Prospectus” shall mean the prospectus included in, or, pursuant to the rules and
regulations of the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document
incorporated by reference therein.




     “Purchase
Agreement” shall have the meaning set forth in the preamble.



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     “Records” shall have the meaning set forth in Section 3(a)(xiv) hereof.




     “Registrable Securities” shall mean the Securities; provided that the Securities shall
cease to be Registrable Securities on the earliest of (i) when the Exchange Securities are issued
in exchange for the Securities pursuant to the Exchange Offer Registration Statement, (ii) when an
Exchange Offer is completed (except with respect to Securities held by Persons that were not
eligible to participate pursuant to the Exchange Offer), (iii) when a Registration Statement with
respect to such Securities has become effective under the Securities Act and such Securities have
been exchanged or disposed of pursuant to such Registration Statement, (iv) the date that is two
years from the Issue Date or (v) when such Securities cease to be outstanding.




     “Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or Financial Industry Regulatory Authority, Inc. ( “FINRA” )
registration and filing fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees and disbursements of counsel for
any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or
Registrable Securities), (iii) all expenses of the Company and the Guarantors in preparing or
assisting in preparing, word processing, printing and distributing any Registration Statement, any
Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting
agreements, securities sales agreements or other similar agreements and any other documents
relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v)
all fees and disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and the Guarantors and, in the case of a Shelf
Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be counsel for the Initial
Purchasers), and (viii) the fees and disbursements of the independent public accountants of the
Company
and the Guarantors, including the expenses of any special audits or “comfort” letters required
by or incident to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions, brokerage commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.




     “Registration
Statement” shall mean any registration statement of the Parent
Guarantor, the Company and the Subsidiary Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any
document incorporated by reference therein.




     “SEC” shall mean the United States Securities and Exchange Commission.




     “Securities” shall have the meaning set forth in the preamble.



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     “Securities
Act” shall mean the Securities Act of 1933, as amended from time
to time.




     “Shelf
Additional Interest Date” shall have the meaning set forth in Section 2(d)
hereof.




     “Shelf
Effectiveness Period” shall have the meaning set forth in Section 2(b)
hereof.




     “Shelf
Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.




     “Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Parent Guarantor, the Company and the Subsidiary Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by a majority of the Holders whose
Registrable Securities are to be covered by such Shelf Registration Statement) on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein or deemed a part thereof, all
exhibits thereto and any document incorporated by reference therein.




     “Shelf
Request” shall have the meaning set forth in Section 2(b) hereof.




     “Staff” shall mean the staff of the SEC.




     “Target Registration Date” shall have the meaning set forth in Section 2(d)
hereof.




     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from
time to time.




     “Trustee” shall mean the trustee with respect to the Securities under the
Indenture.




     “Underwriter” shall have the meaning set forth in Section 3(e) hereof.




     “Underwriter Inspector” shall have the meaning set forth in Section 3(a)(xiv)
hereof.




     “Underwritten Offering” shall mean an offering in which Registrable Securities are
sold to an Underwriter for reoffering to the public.



     2. Registration Under the Securities Act.



     (a) To the extent not prohibited by any applicable law or applicable interpretations of
the Staff, the Company and the Guarantors shall use their commercially reasonable efforts to (i)
cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for Exchange Securities and (ii) to cause such Registra-



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tion Statement to become effective at the earliest possible time under the Securities Act. The
Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement is declared effective by the SEC and use their commercially reasonable
efforts to complete the Exchange Offer not later than 365 days after the Issue Date.




     The Company and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable law, substantially the
following:




     (i) that the Exchange Offer is being made pursuant to this Agreement and that all
Registrable Securities validly tendered and not properly withdrawn will be accepted for
exchange.




     (ii) the dates of acceptance for exchange (which shall be a period of at least 20
Business Days from the date such notice is mailed) (the
“Exchange Dates”);




     (iii) that any Registrable Security not tendered will remain outstanding and continue
to accrue interest but will not retain any rights under this Agreement, except as otherwise
specified herein;




     (iv) that any Holder electing to have a Registrable Security exchanged pursuant to the
Exchange Offer will be required to (A) surrender such Registrable Security, together with
the appropriate letters of transmittal, to the institution and at the address (located in
the Borough of Manhattan, The City of New York) and in the manner specified in the notice,
or (B) effect such exchange otherwise in compliance with the applicable procedures of the
depositary for such Registrable Security, in each case prior to the close of business on
the last Exchange Date; and




     (v) that any Holder will be entitled to withdraw its election, not later than the
close of business on the last Exchange Date, by (A) sending to the institution and at the
address (located in the Borough of Manhattan, The City of New York) specified in the
notice, a telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such Securities exchanged or
(B) effecting such withdrawal in compliance with the applicable procedures of the
depositary for the Registrable Securities.



     As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of
the provisions of the Securities Act, (iii) it is not an
“affiliate” (within the meaning of Rule
405 under the Securities Act) of the Company, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the distribution of Exchange Notes and (v) if
such Holder is a broker-dealer that will receive Exchange Securities for its own account in
exchange



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for Registrable Securities that were acquired as a result of market-making or other trading
activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make
available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.




     As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:




     (i) accept for exchange Registrable Securities or portions thereof validly tendered
and not properly withdrawn pursuant to the Exchange Offer; and




     (ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the Company and




     (iii) issue, and cause the Trustee to promptly authenticate and deliver to each
Holder, Exchange Securities equal in principal amount to the principal amount of the
Registrable Securities tendered by such Holder.



     The Company and the Guarantors shall use their commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.



     (b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed on or
before 365th day after the Issue Date; provided, however, that if such day would otherwise fall on
a day that is not a Business Day, then such Exchange Offer must be completed not later than the
next successive Business Day, (iii) upon receipt of a Holder’s request, with respect to any Holder
of Registrable Securities that (A) may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for such resales by such
Holder or (B) is a broker-dealer and holds Securities acquired directly from the Company or one of
its affiliates or (iv) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Securities on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company or within the meaning of the Securities Act) or (v) upon
receipt of a written request (a “Shelf Request” ) from any Initial Purchaser representing
that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange
Offer, the Company and the Guarantors shall use their commercially reasonable efforts to cause to
be filed as soon as practicable after such determination date or Shelf Request, as the case may be,
a Shelf Registration Statement providing for the sale of all the Registrable Securities by the
Holder’s thereof.



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     In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iv) of the preceding sentence, the Company
and the Guarantors shall use their commercially reasonable efforts to file and have become
effective both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.



     The Company and the Guarantors agree to use their commercially reasonable efforts to
(A) cause the Shelf Registration Statement to be declared effective under the Securities Act and
(B) keep the Shelf Registration Statement continuously effective until the earlier of (i) one year
after the initial effectiveness or (ii) the date when all of the Registrable Securities are
registered under such Shelf Registration Statement and are disposed of in accordance with such
Shelf Registration Statement or cease to be outstanding or on the date upon which all notes covered
by such shelf registration statement become eligible for resale without regard to volume, manner of
sale or other restrictions contained in Rule 144 (the “Shelf Effectiveness Period”). The
Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement,
the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or by any other rules and regulations thereunder or if
reasonably requested by a Holder of Registrable Securities with respect to information relating to
such Holder, and to use their commercially reasonable efforts to cause any such amendment to become
effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing
Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and
the Guarantors agree to furnish to the Holder’s of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.



     (c) The Company and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities pursuant to the Exchange Offer
Registration Statement or Shelf Registration Statement and any fees and disbursements of counsel or
experts retained by such Holder in connection with any registration pursuant hereto (other than any
such fees and disbursements included within the definition of Registration Expenses and paid for by
the Company and the Guarantors in accordance with the terms of this Agreement).



     (d) A Holder that sells Registrable Securities pursuant to the Shelf Registration Statement
will be required to be named as a selling security holder in the related Prospectus and to deliver
a Prospectus to purchasers, will be subject to certain of
the civil liability provisions under the Securities Act in connection with such sales and will
be bound by the provisions of this agreement that are applicable to such a Holder (including
certain indemnification rights and obligations).



     (e) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become



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effective unless it has been declared effective by the SEC or is automatically effective upon
filing with the SEC as provided by Rule 462 under the Securities Act.




     (f) In the event that either the Exchange Offer is not completed or the Shelf Registration
Statement, if required pursuant to Section 2(b)(i), 2(b)(ii) or 2(b)(iii) hereof, does not become
effective on or prior to 365th day after the Issue Date (the “Target Registration Date”),
the interest rate on the Registrable Securities will be increased by 0.25% per annum for the first
90 day period immediately following the Target Registration Date and by an additional 0.25% per
annum with respect to each subsequent 90 day period, up to a maximum of 1.00% per annum, until the
earliest of the Exchange Offer being completed, the Shelf Registration Statement, if required
hereby, becoming effective and the date on which all Securities cease to be Registrable Securities;
provided that the obligation of the Company and the Guarantors to pay such additional interest in
any such case shall be the sole and exclusive monetary remedy of the Initial Purchasers and the
Holder’s in the event that the Exchange Offer is not completed or the Shelf Registration Statement,
if required pursuant to Section 2(b)(i), 2(b)(ii) or 2(b)(iii) hereof, does not become effective on
or prior to the Target Registration Date.



     (g) If a Shelf Registration Statement, if required hereby, has become effective and thereafter
either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case
whether or not permitted by this Agreement, at any time prior to the second anniversary of the
Issue Date (other than after such time as all Exchanged Securities have been disposed thereunder),
and such failure to remain effective or usable exists for more than 30 days (whether or not
consecutive) in any 12-month period (such 30th day, the “Shelf Trigger Date”), then the
interest rate on the Registrable Securities will be increased by 0.25% per annum for the first 90
day period immediately following such date and by an additional 0.25% per annum with respect to
each subsequent 90 day period, up to a maximum increase of 1.00% per annum, commencing on the day
immediately following the Shelf Trigger Date and ending on such date that the Shelf Registration
Statement has again become effective or the Prospectus again becomes usable, as the case may be.



     (h) For the avoidance of doubt, an increase of the interest rate on the Registrable Securities
may not accrue under each of Section 2(e) and Section 2(f) at any one time, and in the case that
more than one basis for an increase in any interest rate
pursuant to this Section 2(g) arises or exists under Section 2(e) and Section 2(f), such
interest rate increase will not be aggregated and instead the interest rate will be increased as if
only one such basis exists. Following the cessation of such basis for increased interest, the
accrual of such additional interest will cease only when no other basis for any increase continues
to exist.



     (i) Without limiting the remedies available to the Initial Purchasers and the Holder’s, the
Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply
with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holder’s for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may
be required to specifically enforce the Companys and the Guarantors obligations under Section 2(a)
and Section 2(b) hereof.



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     The Company represents, warrants and covenants that it (including its agents and
representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing
Prospectus other than any written communication relating to or that contains solely the terms of
the Exchange Offer and/or other information that was included in the Registration Statement.



     3. Registration Procedures.



     (a) In connection with their obligations pursuant to Section 2(a) and Section 2(b)
hereof, the Company and the Guarantors shall as soon as expeditiously as possible:





     (i) prepare and file with the SEC a Registration Statement on the appropriate form
under the Securities Act, which form (x) shall be selected by the Company and the
Guarantors, (y) shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their commercially reasonable
efforts to cause such Registration Statement to become effective and remain effective for
the applicable period in accordance with Section 2 hereof;




     (ii) prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement and file with the SEC any other required document as may be
necessary to keep such Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and
keep each Prospectus current during the period described in Section 4(3) of and Rule
174 under the Securities Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;




     (iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free
Writing Prospectus that is required to be filed by the Company or the Guarantors with the
SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not
required to be filed;




     (iv) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, to counsel for the Initial Purchasers, to counsel for such Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and
any amendment or supplement thereto, as such Holder, counsel or Underwriter may reasonably
request in order to facilitate the sale or other disposition of the Registrable Securities
thereunder; and the Company and the Guarantors consent to the use of such Prospectus,
preliminary prospectus or such Free Writing Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the Holders of Registrable Securities
and any such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus, preliminary
prospectus or such Free Writing Prospectus or any amendment or supplement thereto in
accordance with applicable law;



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     (v) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement shall reasonably request in
writing by the time the applicable Registration Statement becomes effective; cooperate with such
Holders in connection with any filings required to be made with FINRA; and do any and all other
acts and things that may be reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Registrable Securities owned by such Holder; provided
that neither the Company nor any Guarantor shall be required to (1) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (2) file any general consent to service of process in any
such jurisdiction or
(3) subject itself to taxation in any such jurisdiction if it is not so subject;




     (vi) notify counsel for the Initial Purchasers and, in the case of a Shelf Regis-
tration notify each Holder of Registrable Securities and counsel for such Holders promptly and, if
requested by any such Holder or counsel, confirm such advice in writing
(1) when a Registration Statement has become effective, when any post-effective amendment thereto
has been filed and becomes effective, when any Free Writing Prospectus has been filed or any
amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any
request by the SEC or any state securities authority for amendments and supplements to a
Registration Statement, Prospectus or any Free Writing Prospectus or for additional information
after the Registration Statement has become effective, (3) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, including the receipt by the Company of any
notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the
applicable effective date of a Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to an offering of such Registrable Securities cease to be true or
correct in all material respects or if the Company or any Guarantor receives any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any
event during the period a Registration Statement is effective that makes any statement made in such
Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any
material respect or that requires the making of any changes in such Registration Statement or
Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading
and (6) of any determination by the Company or any Guarantor that a post-effective amendment to a
Registration Statement or any amendment or supplement to the Prospectus or any Free Writing
Prospectus would be appropriate;




     (vii) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration,
the resolution of any objection of the SEC pursuant to Rule 401(g)(2), including by filing an
amendment to such Shelf Registration Statement on the proper form,



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as soon as reasonably practicable and promptly provide notice to each Holder of the
withdrawal of any such order or such resolution;




     (viii) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, without charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without any documents incorporated therein by reference or
exhibits thereto, unless requested);




     (ix) in the case of a Shelf Registration, cooperate with the Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates (unless such Registrable
Securities are in book-entry form only) representing Registrable
Securities to be sold and not bearing any restrictive legends and enable such Registrable
Securities to be issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as such Holders may reasonably request at least one Business Day prior
to the closing of any sale of Registrable Securities;




     (x) in the case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(a)(vi)(5) hereof, use their commercially reasonable efforts to prepare and file with the
SEC a supplement or post-effective amendment to such Shelf Registration Statement or the related
Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered (or, to the extent permitted by
law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing
Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company and the Guarantors shall
notify the Holders of Registrable Securities to suspend use of the Prospectus or any Free Writing
Prospectus as promptly as practicable after the occurrence of such an event, and such Holders
hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be,
until the Company and the Guarantors have amended or supplemented the Prospectus or the Free
Writing Prospectus, as the case may be, to correct such misstatement or omission;




     (xi) within a reasonable time prior to the filing of any Registration Statement, any
Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or a Free Writing Prospectus or of any document that is to be
incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus
after initial filing of a Registration Statement, provide copies of such document to each Initial
Purchaser and their counsel (and, in the case of a Shelf Registration Statement, to the Holders of
Registrable Securities and their counsel) and make such of the representations of the Company and
the Guarantors as shall be reasonably requested by the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Holders of Registrable Securities or their
counsel) available for discussion of such document; and the Company and the Guarantors shall not,
at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free
Writing Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus or
a Free Writing Prospectus, or any document that is to be incorporated by




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reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the
Holders of Registrable Securities and their counsel) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel) shall object;





     (xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the
case may be, not later than the initial effective date of a Registration Statement;




     (xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with
the registration of the Exchange Securities or Registrable Securities, as the case may be;
cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;





     (xiv) in the case of a Shelf Registration, make available for inspection by one representative
designated by a majority of the Holders of Registrable Securities to be included in such Shelf
Registration (such representative, the “Holders’ Inspector” ) and the Underwriters
participating in any disposition pursuant to such Shelf Registration Statement (or one counsel to
such Underwriters) (such Underwriters or counsel, the “Underwriter Inspector” and, together
with the Holders’ Inspector, the “Inspectors” ), each upon a written request, at the offices
where normally kept, during reasonable business hours, all pertinent financial and other records,
pertinent corporate documents and instruments of the Company and its subsidiaries (collectively,
the “Records”), as shall be reasonably necessary to enable the Inspectors to exercise any
applicable due diligence responsibilities, and cause the officers, directors and employees of the
Company and any of its subsidiaries to supply all information (“Information”) reasonably
requested by the Inspectors in connection with such due diligence responsibilities. The Inspectors
shall agree in writing that they will keep the Records and Information confidential and that they
will not disclose any of the Records or Information that the Company determines, in good faith, to
be confidential and notifies the Inspectors in writing are confidential unless (i) the disclosure
of such Records or Information is necessary to avoid or correct a material misstatement or omission
in such Registration Statement or Prospectus, (ii) the release of such Records or Information is
ordered pursuant to a subpoena or other order from a court claiming jurisdiction or any request or
order from a regulatory body, (iii) disclosure of such Records or Information is necessary or
advisable, in the judgment of counsel for the Inspectors, in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially involving the Inspectors and
arising out of, based upon, relating to or involving this Agreement, the applicable Indenture or
the Purchase Agreement or any transactions contemplated hereby or thereby or arising hereunder or
thereunder, (iv) the information in such Records or Information has been
made generally available to the public other than by the Inspectors or any “affiliate” (as
defined in Rule 405 under the



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Securities Act) thereof, (v) such information becomes available to any such person from a source
other than the Company and such source is not known by such person to be bound by a confidentiality
obligation to the Company or (vi) such information is necessary to establish a due diligence
defense; provided, however, that (if permitted) prior notice shall be provided as soon as
practicable to the Company of the potential disclosure of any information by any Inspector pursuant
to clauses (i), (ii) or (iii) of this sentence to permit the Company to obtain a protective order
(or waive the provisions of this paragraph (xiv)) and that such Inspector shall take such actions
as are reasonably necessary to protect the confidentiality of such information (if practicable) to
the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of such Holder or Inspector;




     (xv) if reasonably requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably requests to be included
therein and make all required filings of such Prospectus supplement or such post-effective
amendment as soon as reasonably practicable after the Company has received notification of the
matters to be so included in such filing;




     (xvi) in the case of a Shelf Registration, enter into such customary agreements (including an
underwriting agreement as is customary in underwritten offerings of debt securities similar to the
Securities) and take all such other actions in connection therewith (including those requested by
the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf
Registration Statement) in order to expedite or facilitate the disposition of such Registrable
Securities, including, but not limited to, an Underwritten Offering, and in such connection (1) to
the extent possible, make such representations and warranties to the Holders and any Underwriters
of such Registrable Securities with respect to the business of the Company and its subsidiaries and
the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten offerings of debt securities
similar to the Securities and confirm the same if and when requested, (2) obtain opinions of
counsel to the Company and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holders and Underwriters of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten offerings, (3)
obtain “comfort” letters from the independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other certified public accountant of any subsidiary of the
Company or any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are required to be included
in the Registration Statement) addressed to each selling Holder (to the extent permitted by
applicable professional standards) and Underwriter of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily covered in “comfort” letters in
connection with underwritten offerings of debt securities similar to the Securities, including but
not limited to financial information contained in any preliminary prospectus, Prospectus or Free
Writing Prospectus and (4) deliver such other documents and certificates as may be rea-



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sonably requested by the Holders of a majority in principal amount of the Registrable
Securities being sold or the Underwriters, and which are customarily delivered in
underwritten offerings of debt securities similar to the Securities, to evidence the
continued validity of the representations and warranties of the Company and the Guarantors
made pursuant to clause (1) above and to evidence compliance with any customary conditions
contained in an underwriting agreement; and




     (xvii) so long as any Registrable Securities remain outstanding, cause each Additional
Guarantor upon the creation or acquisition by the Parent Guarantor or the Company of such
Additional Guarantor, to execute a counterpart to this Agreement in the form attached
hereto as Annex A and to deliver such counterpart, together with an opinion of counsel as
to the enforceability then of against such entity, to the Initial Purchasers no later than
five Business Days following the execution thereof.



     (b) In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company such information regarding such Holder and the
proposed disposition by such Holder of such Registrable Securities as the Company and the
Guarantors may from time to time reasonably request in writing.



     (c) In the case of a Shelf Registration Statement, each Holder of Registrable Securities
covered in such Shelf Registration Statement agrees that, upon receipt of any notice from the
Company and the Guarantors of the happening of any event of the kind described in Section
3(a)(vi)(3) or 3(a)(vi)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such Holder’s receipt of
the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated
by Section 3(a)(x) hereof and, if so directed by the Company and the Guarantors, such Holder will
deliver to the Company and the Guarantors all copies in its possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus and any Free Writing Prospectus covering
such Registrable Securities that is current at the time of receipt of such notice.



     (d) If the Company and the Guarantors shall give any notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the Company and
the Guarantors shall extend the period during which such Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders of such Registrable
Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing
Prospectus necessary to resume such dispositions. The Company and the Guarantors may give any such
notice only twice during any 365 day period and any such suspensions shall not exceed 30 days for
each suspension and there should not be more then two suspensions in effect during any 365 day
period. Notwithstanding anything in the foregoing to the contrary, the Company shall at all times
use its commercially reasonable efforts to end any suspension period at the earliest possible time.



     (e) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire
to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment bank or investment banks and manager or managers



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(each an “Underwriter” ) that will administer the offering will be selected by the Holders of
a majority in principal amount of the Registrable Securities included in such offering.




     4. Participation of Broker-Dealers in Exchange Offer.




     (a) The Staff has taken the position that any broker-dealer that receives Exchange Se-
curities for its own account in the Exchange Offer in exchange for Securities that were acquired by
such broker-dealer as a result of market-making or other trading activities (a “Participating
Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.




     The Company and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them (except to the extent required by Staff positions),
such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by
law, made available to purchasers) to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own accounts, so long as
the Prospectus otherwise meets the requirements of the Securities Act.



     (b) In light of the above, and notwithstanding the other provisions of this
Agreement, the Company and the Guarantors agree to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement for a period of up to 180 days after the
last Exchange Date (as such period may be extended pursuant to Section 3(d) of this Agreement), in
order to expedite or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. The
Company and the Guarantors further agree that Participating Broker-Dealers shall be authorized to
deliver such Prospectus (or, to the extent permitted by law, make available) during such period in
connection with the resales contemplated by this Section 4.



     5. Indemnification and Contribution.



     (a) The Company and each Guarantor, jointly and severally, agree to indemnify and
hold harmless each Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls any Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation, legal fees and
other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as
such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1)
any untrue statement or alleged untrue statement of a material fact contained in any Registration
Statement or any omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein not misleading, or (2) any
untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any
Free Writing Prospectus or any “issuer information” ( “Issuer Information” ) filed or
required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged
omission to



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state therein a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser, information relating to any Holder furnished to the
Company in writing through DBSI, any selling Holder, respectively, expressly for use therein. In
connection with any Underwritten Offering permitted by Section 3, the Company and the Guarantors,
jointly and severally, will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution, their respective
affiliates and each Person who controls such Persons (within the meaning of the Securities Act and
the Exchange Act) to the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement, any Prospectus, any Free
Writing Prospectus or any Issuer Information.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers and the other selling Holders, the directors of the Company
and the Guarantors, each officer of the Company and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Company, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing
Prospectus. Notwithstanding the provisions of this Section 5(b), with respect to a Registration
Statement that is not an Exchange Offer Registration Statement, including the related Prospectus
and any Free Writing Prospectus related thereto, in no event shall a Holder be required to
indemnify any amount in excess of the proceeds received by such Holder from the Securities or
Exchange Securities sold by such Holder pursuant thereto.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under this Section 5 except to the
extent that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under this Section 5. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the
Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses
of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the



-17-









 





expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and expenses shall be
reimbursed as they are incurred. Any such separate firm (x) for any Initial Purchaser, its
affiliates, directors and officers and any control Persons of such Initial Purchaser shall be
designated in writing by DBSI, (y) for any Holder, its directors and officers and any control
Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other
cases shall be designated in writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(B) does not include any statement as to any admission of fault, culpability or a failure to act by
or on behalf of any Indemnified Person.




     (d) If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Holders on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company and the Guarantors or by the Holders and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.



-18-









 





     (e) The Company, the Guarantors, and Holders agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified Person in connection
with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall
a Holder be required to contribute any amount in excess of the amount by which the total price at
which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to
contribute pursuant to this Section 5 are several and not joint.



     (f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.



     (g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the
Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.


     6. General.




     (a) Inconsistent Agreements. The Company and the Guarantors represent, warrant
and agree that (i) the rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of any other outstanding debt
securities issued or guaranteed by the Company or any Guarantor under any other agreement and (ii)
neither the Company nor any Guarantor has entered into, or on or after the date of this Agreement
will enter into, any agreement that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.



     (b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the Company and the
Guarantors have obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or consent; provided that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing by such Holder. Any



-19-









 




amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be
by a writing executed by each of the parties hereto.




     (c) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery: (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the provisions of this Section
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Company and the Guarantors, initially at the Company’s
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c). All such
notices and communications shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the
next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of
all such notices, demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.



     (d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Company or the Guarantors with respect to
any failure by a Holder to comply with, or any breach by any
Holder of, any of the obligations of such Holder under this Agreement.



     (e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.



     (f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by tele-copier, facsimile, email or
other electronic transmission (i.e., “pdf” or “tif” ) shall be effective as delivery of a manually
executed counterpart of this Agreement.



-20-









 





     (g) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement and shall not limit or otherwise affect the meaning hereof.



     (h) Governing Law. This Agreement, and any claims, controversy or dispute arising under or
related to this Agreement, shall be governed by and construed in accordance with the laws of the
State of New York.



     (i) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable provisions.



-21-









 




IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.




	 	 	 	 	 
	 	GIANT FUNDING CORP.

 	 
	 	By:  	/s/
David Bell	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Registration Rights Agreement















 








Confirmed and accepted as of the date

first above written:



DEUTSCHE BANK SECURITIES INC.




For itself and on behalf of the

Several Initial Purchasers




	 	 	 	 	 
	 	 	 
	By:  	Kevin Sherlock
 	 	 
	 	Name:  	Kevin Sherlock 	 	 
	 	Title:  	Managing Director 	 	 
	 
	 	 	 
	By:  	Ryan Morris
 	 	 
	 	Name:  	Ryan Morris 	 	 
	 	Title:  	Director 	 	 
	 



Grifols- Registration Rights Agreement














 








EXHIBIT A




Joinder Agreement





     WHEREAS, Giant Funding Corp. and Deutsche Bank Securities Inc., as representative of the
Initial Purchasers named on Schedule 1 of the Purchase Agreement (the “Initial
Purchasers”), heretofore executed and delivered a Registration Rights Agreement (
“Registration Rights Agreement” ), dated January 21, 2011, providing for the registration and
exchange of the Securities (as defined therein); and



     WHEREAS, Grifols Inc., a Virginia corporation (the “Company”), and each of the
Guarantors, which was originally not a party thereto, has agreed to join in the Registration Rights
Agreement on the Completion Date.



     Capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Registration Rights Agreement.



     NOW, THEREFORE, the Company and each Guarantor hereby agrees for the benefit of the Initial
Purchasers, as follows:



     1. Joinder. Each of the undersigned signatory parties hereby acknowledges that it has
received and reviewed a copy of the Registration Rights Agreement and all other documents it deems
fit to enter into this Joinder Agreement (the “Joinder Agreement”), and acknowledges and
agrees to (i) join and become a party to the Registration Rights Agreement as indicated by its
signature below; (ii) be bound by all covenants, agreements, representations, warranties,
indemnities and acknowledgments attributable to the Guarantors and/or the Company, as applicable,
to such signatory party in the Registration Rights Agreement as if made by, and with respect to,
such signatory party; and (iii) perform all obligations and duties required and be entitled to all
the benefits of the Guarantors or the Company, as applicable, and of such signatory party pursuant
to the Registration Rights Agreement.



     2. Representations and Warranties and Agreements of the Company and the Subsidiary
Guarantors. Each of the undersigned hereby represents and warrants to and agrees with the
Initial Purchasers that it has all the requisite corporate or limited liability company power and
authority, as the case may be, to execute, deliver and perform its obligations under this Joinder
Agreement and to consummate the transaction contemplated hereby and that when this Joinder
Agreement is executed and delivered, it will constitute a valid and legally binding agreement
enforceable against each of the undersigned in accordance with its terms.



     3. Counterparts. This Joinder Agreement may be signed in one or more counterparts
(which may be delivered in original form or via facsimile), each of which shall constitute an
original when so executed and all of which together shall constitute one and the same agreement.



     4. Amendments. No amendment or waiver of any provision of this Joinder Agreement, nor
any consent or approval to any departure therefrom, shall in any event be effective



Ex. A-1





 









 







unless the same shall be in writing and signed by all of the parties to the Registration Rights
Agreement.




     5. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.



     6. Applicable Law. This Joinder Agreement, and any claims, controversy or dispute
arising under or related to this Joinder Agreement, shall be governed by and construed in
accordance with the laws of the State of New York.



Ex. A-2





 









 








     IN WITNESS WHEREOF, the undersigned has executed this agreement as of the date first written
above.



	 	 	 	 	 
	 	GRIFOLS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GRIFOLS, S.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[SUBSIDIARY GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. A-3





 









 








Annex A




Counterpart to Registration Rights Agreement





     The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated as of January 21, 2011 by and among Giant
Funding Corp., a Delaware corporation, and Deutsche Bank Securities Inc., on behalf of itself and
the other Initial Purchasers) to be bound by the terms and provisions of such Registration Rights
Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this counterpart as of
___________________.



	 	 	 	 	 
	 	[NAME]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Annex A-1