exv4w3



 






    Exhibit 4.3




    EXECUTION VERSION



 


 




    FMC
    FINANCE III S.A.

    Issuer



 




    U.S. BANK
    NATIONAL ASSOCIATION

    Trustee



 




    FRESENIUS
    MEDICAL CARE AG & Co. KGaA,

    FRESENIUS MEDICAL CARE HOLDINGS, INC. and

    FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH

    Guarantors



 


 




    INDENTURE



 




    DATED AS
    OF JULY 2, 2007



 




    with
    respect to the issuance of



 




    67/8%
    SENIOR NOTES DUE 2017



 












 







    CROSS-REFERENCE
    TABLE*



 


	 	 	 	 	 	 	 	 	 
	
    Trust Indenture

    
	
 
	
    Indenture

    

	

    Act Section


	
 
	
    Section

	 

	
	

    310
    


	
	
 
	
    (a)(1). 
    
	
 
	
	
    7.10
    
	

	
	
 
	
	
 
	
    (a)(2). 
    
	
 
	
	
    7.10
    
	

	
	
 
	
	
 
	
    (a)(3). 
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (a)(4). 
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (a)(5). 
    
	
 
	
	
    7.10
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    7.3; 7.10
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    N.A.
    
	

	
	

    311
    


	
	
 
	
    (a)
    
	
 
	
	
    7.11
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    7.11
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    N.A.
    
	

	
	

    312
    


	
	
 
	
    (a)
    
	
 
	
	
    2.5
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    N/A
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    N/A
    
	

	
	

    313
    


	
	
 
	
    (a)
    
	
 
	
	
    7.6
    
	

	
	
 
	
	
 
	
    (b)(1). 
    
	
 
	
	
    7.6
    
	

	
	
 
	
	
 
	
    (b)(2). 
    
	
 
	
	
    7.6; 7.7
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    7.6; 11.1
    
	

	
	
 
	
	
 
	
    (d)
    
	
 
	
	
    7.6
    
	

	
	

    314
    


	
	
 
	
    (a)
    
	
 
	
	
    4.10; 11.3
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (c)(1). 
    
	
 
	
	
    11.2
    
	

	
	
 
	
	
 
	
    (c)(2). 
    
	
 
	
	
    11.2
    
	

	
	
 
	
	
 
	
    (c)(3). 
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (d)
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (e)
    
	
 
	
	
    11.3
    
	

	
	
 
	
	
 
	
    (f)
    
	
 
	
	
    N.A.
    
	

	
	

    315
    


	
	
 
	
    (a)
    
	
 
	
	
    7.1
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    7.5; 11.1
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    7.1
    
	

	
	
 
	
	
 
	
    (d)
    
	
 
	
	
    7.1
    
	

	
	
 
	
	
 
	
    (e)
    
	
 
	
	
    6.15
    
	

	
	

    316
    


	
	
 
	
    (a) (last sentence)
    
	
 
	
	
    2.10
    
	

	
	
 
	
	
 
	
    (a)(1)(A)
    
	
 
	
	
    6.8
    
	

	
	
 
	
	
 
	
    (a)(1)(B)
    
	
 
	
	
    6.7
    
	

	
	
 
	
	
 
	
    (a)(2). 
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    6.10
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    2.17
    
	

	
	

    317
    


	
	
 
	
    (a)(1). 
    
	
 
	
	
    6.11
    
	

	
	
 
	
	
 
	
    (a)(2). 
    
	
 
	
	
    6.12
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    2.4
    
	

	
	

    318
    


	
	
 
	
    (a)
    
	
 
	
	
    11.13
    
	

	
	
 
	
	
 
	
    (b)
    
	
 
	
	
    N.A.
    
	

	
	
 
	
	
 
	
    (c)
    
	
 
	
	
    N.A.
    
	









 





 





    N.A. means not applicable.



 


			
	
    * 		
    This Cross-Reference Table is not part of the Indenture.




    

    i








 







    TABLE OF
    CONTENTS



 


	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	

    ARTICLE IDEFINITIONS AND
    INCORPORATION BY REFERENCE
    



	
	

    Section 1.1
    


	
	
 
	
    Definitions
    
	
 
	
	
    1
    
	

	
	

    Section 1.2
    


	
	
 
	
    Rules of Construction
    
	
 
	
	
    14
    
	

	
	

    Section 1.3
    


	
	
 
	
    Incorporation by Reference of
    Trust Indenture Act
    
	
 
	
	
    14
    
	

	
 

	

    ARTICLE IITHE NOTES
    



	
	

    Section 2.1
    


	
	
 
	
    Form and Dating
    
	
 
	
	
    15
    
	

	
	

    Section 2.2
    


	
	
 
	
    Execution and Authentication
    
	
 
	
	
    16
    
	

	
	

    Section 2.3
    


	
	
 
	
    Registrar and Paying Agent
    
	
 
	
	
    16
    
	

	
	

    Section 2.4
    


	
	
 
	
    Paying Agent To Hold Assets in
    Trust
    
	
 
	
	
    17
    
	

	
	

    Section 2.5
    


	
	
 
	
    List of Holders
    
	
 
	
	
    17
    
	

	
	

    Section 2.6
    


	
	
 
	
    Book-Entry Provisions for Global
    Notes
    
	
 
	
	
    17
    
	

	
	

    Section 2.7
    


	
	
 
	
    Registration of Transfer and
    Exchange
    
	
 
	
	
    18
    
	

	
	

    Section 2.8
    


	
	
 
	
    Replacement Notes
    
	
 
	
	
    21
    
	

	
	

    Section 2.9
    


	
	
 
	
    Outstanding Notes
    
	
 
	
	
    21
    
	

	
	

    Section 2.10
    


	
	
 
	
    Treasury Notes
    
	
 
	
	
    22
    
	

	
	

    Section 2.11
    


	
	
 
	
    Temporary Notes
    
	
 
	
	
    22
    
	

	
	

    Section 2.12
    


	
	
 
	
    Cancellation
    
	
 
	
	
    22
    
	

	
	

    Section 2.13
    


	
	
 
	
    Defaulted Interest
    
	
 
	
	
    22
    
	

	
	

    Section 2.14
    


	
	
 
	
    CUSIP Number
    
	
 
	
	
    23
    
	

	
	

    Section 2.15
    


	
	
 
	
    Deposit of Moneys
    
	
 
	
	
    23
    
	

	
	

    Section 2.16
    


	
	
 
	
    Certain Matters Relating to Global
    Notes
    
	
 
	
	
    23
    
	

	
	

    Section 2.17
    


	
	
 
	
    Record Date
    
	
 
	
	
    23
    
	

	
 

	

    ARTICLE IIIREDEMPTION
    



	
	

    Section 3.1
    


	
	
 
	
    Optional Redemption
    
	
 
	
	
    23
    
	

	
	

    Section 3.2
    


	
	
 
	
    Notices to Trustee
    
	
 
	
	
    23
    
	

	
	

    Section 3.3
    


	
	
 
	
    Selection of Notes To Be Redeemed
    
	
 
	
	
    24
    
	

	
	

    Section 3.4
    


	
	
 
	
    Notice of Redemption
    
	
 
	
	
    24
    
	

	
	

    Section 3.5
    


	
	
 
	
    Effect of Notice of Redemption
    
	
 
	
	
    25
    
	

	
	

    Section 3.6
    


	
	
 
	
    Deposit of Redemption Price
    
	
 
	
	
    25
    
	

	
	

    Section 3.7
    


	
	
 
	
    Notes Redeemed in Part
    
	
 
	
	
    25
    
	

	
	

    Section 3.8
    


	
	
 
	
    Special Tax Redemption
    
	
 
	
	
    26
    
	

	
 

	

    ARTICLE IV

    COVENANTS
    



	
	

    Section 4.1
    


	
	
 
	
    Payment of Notes
    
	
 
	
	
    26
    
	

	
	

    Section 4.2
    


	
	
 
	
    Maintenance of Office or Agency
    
	
 
	
	
    26
    
	

	
	

    Section 4.3
    


	
	
 
	
    Limitation on Incurrence of
    Indebtedness
    
	
 
	
	
    27
    
	

	
	

    Section 4.4
    


	
	
 
	
    Limitation on Liens
    
	
 
	
	
    28
    
	

	
	

    Section 4.5
    


	
	
 
	
    Ownership of the Issuer
    
	
 
	
	
    28
    
	

	
	

    Section 4.6
    


	
	
 
	
    Existence
    
	
 
	
	
    28
    
	





    

    ii








 





	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	
	

    Section 4.7
    


	
	
 
	
    Maintenance of Properties
    
	
 
	
	
    28
    
	

	
	

    Section 4.8
    


	
	
 
	
    Payment of Taxes and Other Claims
    
	
 
	
	
    29
    
	

	
	

    Section 4.9
    


	
	
 
	
    Maintenance of Insurance
    
	
 
	
	
    29
    
	

	
	

    Section 4.10
    


	
	
 
	
    Reports
    
	
 
	
	
    29
    
	

	
	

    Section 4.11
    


	
	
 
	
    Change of Control
    
	
 
	
	
    30
    
	

	
	

    Section 4.12
    


	
	
 
	
    Additional Amounts
    
	
 
	
	
    31
    
	

	
	

    Section 4.13
    


	
	
 
	
    Compliance Certificate; Notice of
    Default
    
	
 
	
	
    32
    
	

	
	

    Section 4.14
    


	
	
 
	
    Limitation on Sale and Leaseback
    Transactions
    
	
 
	
	
    32
    
	

	
 

	

    ARTICLE VSUCCESSOR ISSUER OR
    GUARANTOR
    



	
	

    Section 5.1
    


	
	
 
	
    Limitation on Mergers and Sales of
    Assets
    
	
 
	
	
    32
    
	

	
	

    Section 5.2
    


	
	
 
	
    Successor Entity Substituted
    
	
 
	
	
    33
    
	

	
	

    Section 5.3
    


	
	
 
	
    Substitution of the Issuer
    
	
 
	
	
    33
    
	

	
 

	

    ARTICLE VIDEFAULT AND REMEDIES
    



	
	

    Section 6.1
    


	
	
 
	
    Events of Default
    
	
 
	
	
    33
    
	

	
	

    Section 6.2
    


	
	
 
	
    Acceleration
    
	
 
	
	
    34
    
	

	
	

    Section 6.3
    


	
	
 
	
    Other Remedies
    
	
 
	
	
    35
    
	

	
	

    Section 6.4
    


	
	
 
	
    The Trustee May Enforce Claims
    Without Possession of Notes
    
	
 
	
	
    35
    
	

	
	

    Section 6.5
    


	
	
 
	
    Rights and Remedies Cumulative
    
	
 
	
	
    35
    
	

	
	

    Section 6.6
    


	
	
 
	
    Delay or Omission Not Waiver
    
	
 
	
	
    35
    
	

	
	

    Section 6.7
    


	
	
 
	
    Waiver of Past Defaults
    
	
 
	
	
    35
    
	

	
	

    Section 6.8
    


	
	
 
	
    Control by Majority
    
	
 
	
	
    35
    
	

	
	

    Section 6.9
    


	
	
 
	
    Limitation on Suits
    
	
 
	
	
    35
    
	

	
	

    Section 6.10
    


	
	
 
	
    Rights of Holders To Receive
    Payment
    
	
 
	
	
    36
    
	

	
	

    Section 6.11
    


	
	
 
	
    Collection Suit by Trustee
    
	
 
	
	
    36
    
	

	
	

    Section 6.12
    


	
	
 
	
    Trustee May File Proofs of Claim
    
	
 
	
	
    36
    
	

	
	

    Section 6.13
    


	
	
 
	
    Priorities
    
	
 
	
	
    36
    
	

	
	

    Section 6.14
    


	
	
 
	
    Restoration of Rights and Remedies
    
	
 
	
	
    37
    
	

	
	

    Section 6.15
    


	
	
 
	
    Undertaking for Costs
    
	
 
	
	
    37
    
	

	
	

    Section 6.16
    


	
	
 
	
    Notices of Default
    
	
 
	
	
    37
    
	

	
 

	

    ARTICLE VIITRUSTEE
    



	
	

    Section 7.1
    


	
	
 
	
    Duties of Trustee
    
	
 
	
	
    37
    
	

	
	

    Section 7.2
    


	
	
 
	
    Rights of Trustee
    
	
 
	
	
    38
    
	

	
	

    Section 7.3
    


	
	
 
	
    Individual Rights of Trustee
    
	
 
	
	
    39
    
	

	
	

    Section 7.4
    


	
	
 
	
    Trustee’s Disclaimer
    
	
 
	
	
    39
    
	

	
	

    Section 7.5
    


	
	
 
	
    Notice of Default
    
	
 
	
	
    39
    
	

	
	

    Section 7.6
    


	
	
 
	
    Reports by Trustee to Holders of
    the Notes
    
	
 
	
	
    39
    
	

	
	

    Section 7.7
    


	
	
 
	
    Compensation and Indemnity
    
	
 
	
	
    39
    
	

	
	

    Section 7.8
    


	
	
 
	
    Replacement of Trustee
    
	
 
	
	
    40
    
	

	
	

    Section 7.9
    


	
	
 
	
    Successor Trustee by Merger, etc
    
	
 
	
	
    41
    
	

	
	

    Section 7.10
    


	
	
 
	
    Eligibility; Disqualification
    
	
 
	
	
    41
    
	





    

    iii








 





	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	
	

    Section 7.11
    


	
	
 
	
    Preferential Collection of Claims
    Against the Company
    
	
 
	
	
    41
    
	

	
 

	

    ARTICLE VIIISATISFACTION AND
    DISCHARGE OF INDENTURE
    



	
	

    Section 8.1
    


	
	
 
	
    Option To Effect Legal Defeasance
    or Covenant Defeasance
    
	
 
	
	
    41
    
	

	
	

    Section 8.2
    


	
	
 
	
    Legal Defeasance and Discharge
    
	
 
	
	
    41
    
	

	
	

    Section 8.3
    


	
	
 
	
    Covenant Defeasance
    
	
 
	
	
    42
    
	

	
	

    Section 8.4
    


	
	
 
	
    Conditions to Legal or Covenant
    Defeasance
    
	
 
	
	
    42
    
	

	
	

    Section 8.5
    


	
	
 
	
    Satisfaction and Discharge of
    Indenture
    
	
 
	
	
    43
    
	

	
	

    Section 8.6
    


	
	
 
	
    Survival of Certain Obligations
    
	
 
	
	
    43
    
	

	
	

    Section 8.7
    


	
	
 
	
    Acknowledgment of Discharge by
    Trustee
    
	
 
	
	
    43
    
	

	
	

    Section 8.8
    


	
	
 
	
    Application of Trust Moneys
    
	
 
	
	
    43
    
	

	
	

    Section 8.9
    


	
	
 
	
    Repayment to the Issuer; Unclaimed
    Money
    
	
 
	
	
    43
    
	

	
	

    Section 8.10
    


	
	
 
	
    Reinstatement
    
	
 
	
	
    44
    
	

	
 

	

    ARTICLE IXAMENDMENTS,
    SUPPLEMENTS AND WAIVERS
    



	
	

    Section 9.1
    


	
	
 
	
    Without Consent of Holders of Notes
    
	
 
	
	
    44
    
	

	
	

    Section 9.2
    


	
	
 
	
    With Consent of Holders of Notes
    
	
 
	
	
    45
    
	

	
	

    Section 9.3
    


	
	
 
	
    Notice of Amendment, Supplement or
    Waiver
    
	
 
	
	
    45
    
	

	
	

    Section 9.4
    


	
	
 
	
    Revocation and Effect of Consents
    
	
 
	
	
    45
    
	

	
	

    Section 9.5
    


	
	
 
	
    Notation on or Exchange of Notes
    
	
 
	
	
    46
    
	

	
	

    Section 9.6
    


	
	
 
	
    Trustee to Sign Amendments, etc
    
	
 
	
	
    46
    
	

	
 

	

    ARTICLE XNOTE GUARANTEE
    



	
	

    Section 10.1
    


	
	
 
	
    Note Guarantee
    
	
 
	
	
    46
    
	

	
	

    Section 10.2
    


	
	
 
	
    Execution and Delivery of Note
    Guarantees
    
	
 
	
	
    48
    
	

	
	

    Section 10.3
    


	
	
 
	
    Guarantors May Consolidate, etc.,
    on Certain Terms
    
	
 
	
	
    48
    
	

	
	

    Section 10.4
    


	
	
 
	
    Release of Guarantors
    
	
 
	
	
    48
    
	

	
 

	

    ARTICLE XIMISCELLANEOUS
    



	
	

    Section 11.1
    


	
	
 
	
    Notices
    
	
 
	
	
    49
    
	

	
	

    Section 11.2
    


	
	
 
	
    Certificate and Opinion as to
    Conditions Precedent
    
	
 
	
	
    50
    
	

	
	

    Section 11.3
    


	
	
 
	
    Statements Required in Certificate
    or Opinion
    
	
 
	
	
    50
    
	

	
	

    Section 11.4
    


	
	
 
	
    Rules by Trustee, Paying Agent,
    Registrar
    
	
 
	
	
    51
    
	

	
	

    Section 11.5
    


	
	
 
	
    Legal Holidays
    
	
 
	
	
    51
    
	

	
	

    Section 11.6
    


	
	
 
	
    Governing Law
    
	
 
	
	
    51
    
	

	
	

    Section 11.7
    


	
	
 
	
    Submission to Jurisdiction
    
	
 
	
	
    51
    
	

	
	

    Section 11.8
    


	
	
 
	
    No Personal Liability of
    Directors, Officers, Employees and Stockholders
    
	
 
	
	
    52
    
	

	
	

    Section 11.9
    


	
	
 
	
    Successors
    
	
 
	
	
    52
    
	

	
	

    Section 11.10
    


	
	
 
	
    Counterpart Originals
    
	
 
	
	
    52
    
	

	
	

    Section 11.11
    


	
	
 
	
    Severability
    
	
 
	
	
    52
    
	

	
	

    Section 11.12
    


	
	
 
	
    Table of Contents, Headings, etc
    
	
 
	
	
    52
    
	

	
	

    Section 11.13
    


	
	
 
	
    Trust Indenture Act Controls
    
	
 
	
	
    52
    
	

	
	

    Section 11.14
    


	
	
 
	
    Currency Indemnity
    
	
 
	
	
    52
    
	










    

    iv








 






    EXHIBITS




    Exhibit A  -  Form
    of Initial Global Note




    Exhibit B  -  Form
    of Initial Definitive Note




    Exhibit C  -  Form
    of Note Guarantee



		
	    Exhibit D  -  	
    Form of Transfer Certificate for Transfer from Rule 144A
    Global





    Note to Regulation S Global Note



		
	    Exhibit E  -  	
    Form of Transfer Certificate for Transfer from Regulation S
    Global





    Note to Rule 144A Global Note



 



    NOTE:  This Table of Contents shall not, for any
    purpose, be deemed to be part of this Indenture.




    

    v








 






    INDENTURE dated as of July 2, 2007, among FMC FINANCE III
    S.A., a corporation under the laws of Luxembourg (the
    “Issuer”), as Issuer, FRESENIUS MEDICAL CARE
    AG & Co. KGaA, a partnership limited by shares
    (Kommanditgesellschaft auf Aktien) organized under the laws of
    the Federal Republic of Germany (the “Company”),
    FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation
    (“FMCH”) and FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
    a limited liability company organized under the laws of the
    Federal Republic of Germany (“FMCD” and, together with
    the Company and FMCH, the “Guarantors”), and
    U.S. BANK NATIONAL ASSOCIATION, a national banking
    association, as trustee (the “Trustee”).



 



    The Issuer has duly authorized the creation and issuance of its
    67/8% Senior
    Notes due 2017. The Notes consist of (i) $500,000,000
    aggregate principal amount of notes issued on the date hereof
    (the “Initial Notes”) and (ii) Additional Notes
    (as defined herein) that may be issued on any Issue Date (all
    such notes referred to in clauses (i) and (ii) being
    referred to as the “Notes”); and, to provide therefor,
    the Issuer has duly authorized the execution and delivery of
    this Indenture. The Notes will be guaranteed (the “Note
    Guarantee”) on a senior unsecured basis by each Guarantor.
    Each of the Issuer and the Guarantors has duly authorized the
    execution and delivery of this Indenture. All things necessary
    to make the Notes, when duly issued and executed by the Issuer
    and authenticated and delivered by the Trustee hereunder, the
    valid obligations of the Issuer, and the Note Guarantee, when
    executed by each Guarantor and endorsed upon the Notes, the
    valid obligation of each Guarantor and to make this Indenture a
    valid agreement of the Issuer and each Guarantor, have been done.



 



    Each party agrees as follows for the benefit of the other
    parties and for the equal and ratable benefit of the Holders:



 




    ARTICLE I

    



 




    DEFINITIONS
    AND INCORPORATION BY REFERENCE
    



 



    Section 1.1  Definitions.  As
    used in this Indenture, the following terms shall have the
    following meanings:



 



    “Accounting Principles” means U.S. GAAP,
    or, upon adoption thereof by the Company and notice to the
    Trustee, IFRS or any other accounting standards which are
    generally acceptable in the jurisdiction of organization of the
    Company, approved by the relevant regulatory or other accounting
    bodies in that jurisdiction and internationally generally
    acceptable and, in the case of IFRS or such other accounting
    standards, as in effect from time to time.



 



    “Acquired Indebtedness” means Indebtedness of a
    Person existing at the time such Person becomes a Subsidiary or
    is merged into or consolidated with any other Person or that is
    assumed in connection with the acquisition of assets from such
    Person and, in each case, not Incurred by such Person in
    connection with, or in anticipation or contemplation of, such
    Person becoming a Subsidiary or such merger, consolidation or
    acquisition.



 



    “Additional Amounts” shall have the meaning set
    forth in Section 4.12 hereof.



 



    “Additional Notes” means additional
    67/8% Senior
    Notes due 2017.



 



    “Additional Taxing Jurisdiction” shall have the
    meaning set forth in Section 4.12 hereof.



 



    “Affiliate” of any specified Person means:



 



    (1) any other Person, directly or indirectly, controlling
    or controlled by, or



 



    (2) under direct or indirect common control with such
    specified Person.



 



    For the purposes of this definition, “control” when
    used with respect to any Person means the power to direct the
    management and policies of such Person, directly or indirectly,
    whether through the ownership of voting securities, by contract
    or otherwise; and the terms “controlling” and
    “controlled” have meanings correlative to the
    foregoing.



 



    “Agent” means the Paying Agent, any Registrar,
    Authenticating Agent or co-Registrar.



 



    “Agent Members” shall have the meaning set
    forth in Section 2.16.













 






    “A/R Facility” means the accounts receivable
    facility established pursuant to the Third Amended and Restated
    Transfer and Administration Agreement dated as of
    October 23, 2003 by and among Paradigm Funding LLC, other
    conduit investors named therein, NMC Funding Corporation, as
    transferor, National Medical Care, Inc., as collection agent,
    the financial institutions named therein and WestLB AG, New York
    Branch, as an administrative agent and the agent (as amended,
    modified, renewed, refunded, replaced, restated or refinanced
    from time to time).



 



    “Asset Disposition” means any direct or
    indirect sale, issuance, conveyance, transfer, lease (other than
    operating leases entered into in the ordinary course of
    business), assignment or other transfer for value by the Company
    or any of its Subsidiaries (including any Sale and Leaseback
    Transaction) to any Person other than the Company or a Wholly
    Owned Subsidiary of the Company, including any disposition by
    means of a merger, consolidation or similar transaction (each
    referred to for the purposes of this definition as a
    “disposition”), of:



 



    (1) any shares of Capital Stock of any Subsidiary (other
    than directors’ qualifying shares or shares required by
    applicable law to be held by a Person other than the Company or
    a Subsidiary),



 



    (2) all or substantially all the assets of any division or
    line of business of the Company or any Subsidiary, or



 



    (3) any other assets of the Company or any Subsidiary
    outside of the ordinary course of business of the Company or
    such Subsidiary,



 



    other than, in the case of clauses (1), (2) and
    (3) above,



 



    (A) a disposition of assets or issuance of Capital Stock by
    a Subsidiary to the Company or by the Company or a Subsidiary to
    a Wholly Owned Subsidiary,



 



    (B) transactions permitted under Section 5.1, and



 



    (C) dispositions in connection with Permitted Liens,
    foreclosures on assets and any release of claims which have been
    written down or written off.



 



    “Attributable Debt” means, in respect of any
    Sale and Leaseback Transaction, as of the time of determination,
    the total obligation (discounted to present value at the rate
    per annum equal to the discount rate which would be applicable
    to a Capital Lease Obligation with the like term in accordance
    with Accounting Principles) of the lessee for rental payments
    (other than amounts required to be paid on account of property
    taxes, maintenance, repairs, insurance, water rates and other
    items which do not constitute payments for property rights)
    during the remaining portion of the initial term of the lease
    included in such Sale and Leaseback Transaction.



 



    “Authenticating Agent” shall have the meaning
    set forth in Section 2.2.



 



    “Average Life” means, as of the date of
    determination, with respect to any Indebtedness or Preferred
    Stock, the quotient obtained by dividing:



 



    (1) the sum of the products of numbers of years from the
    date of determination to the dates of each successive scheduled
    principal payment of such Indebtedness or redemption or similar
    payment with respect to such Preferred Stock multiplied by the
    amount of such payment by



 



    (2) the sum of all such payments.



 



    “Bankruptcy Law” means (i) for purposes of
    the Company and FMCD, any bankruptcy, insolvency,
    reorganization, moratorium and other similar laws of general
    application (including, without limitation, the German
    Insolvency Code (“Insolvenzordnung”), (ii) for
    purposes of the Issuer, any bankruptcy, insolvency or other
    similar statute (including, without limitation, the Luxembourg
    Commercial Code (Code de Commerce) and any similar statute),
    regulation or provision of any jurisdiction in which the Issuer
    is organized or conducting business (iii) for purposes of
    FMCH, any bankruptcy, insolvency, reorganization, moratorium and
    other similar laws of general application (including, without
    limitation, 11 U.S.C. § 101 et seq., as amended)
    and (iv) for purposes of the Trustee, any bankruptcy,
    insolvency or similar statute, regulation or provision of any
    jurisdiction in which the Trustee is organized or conducting
    business.




    

    2








 






    “Board of Directors” means, with respect to the
    Issuer or any Guarantor, as the case may be, the Board of
    Directors (or other body performing functions similar to any of
    those performed by a Board of Directors including those
    performed, in the case of a German stock corporation, by the
    management board or, in the case of a KGaA, by the General
    Partner) of such Person or any committee thereof duly authorized
    to act on behalf of such Board (or other body).



 



    “Board Resolution” means, with respect to the
    Issuer or a Guarantor, a copy of a resolution certified by the
    Secretary or an Assistant Secretary or a member of the
    Management Board of the Issuer or such Guarantor to have been
    duly adopted by the Board of Directors or the Management Board,
    or such committee of the Board of Directors or the Management
    Board or officers of the Issuer or such Guarantor to which
    authority to act on behalf of the Board of Directors or the
    Management Board has been delegated, and to be in full force and
    effect on the date of such certification, and delivered to the
    Trustee by the Issuer or the Guarantor, as the case may be, and
    the Trustee shall be entitled to rely on such certification as
    conclusive evidence thereof.



 



    “Business Day” means any day other than:



 



    (1) a Saturday or Sunday,



 



    (2) a day on which banking institutions in New York City,
    Frankfurt am Main or the jurisdiction of organization of the
    Issuer are authorized or required by law or executive order to
    remain closed, or



 



    (3) a day on which the Corporate Trust Office of the
    Trustee is closed for business.



 



    “Capital Lease Obligations” means an obligation
    that is required to be classified and accounted for as a capital
    lease for financial reporting purposes in accordance with
    Accounting Principles, and the amount of Indebtedness
    represented by such obligation shall be the capitalized amount
    of such obligation determined in accordance with Accounting
    Principles; and the Stated Maturity thereof shall be the date of
    the last payment of rent or any other amount due under such
    lease prior to the first date upon which such lease may be
    terminated by the lessee without payment of a penalty.



 



    “Capital Stock” of any Person means any and all
    shares, interests, rights to purchase, warrants, options,
    participations or other equivalents of or interests in (however
    designated) equity of such Person, including any Preferred
    Stock, but excluding any debt securities convertible into such
    equity.



 



    “Cash Management Arrangements” means the cash
    management arrangements of the Company and its Affiliates
    (including any Indebtedness arising thereunder) which
    arrangements are in the ordinary course of business consistent
    with past practice.



 



    “Change of Control” means the occurrence of one
    or more of the following events:



 



    (1) so long as the Company is organized as a KGaA, if the
    General Partner of the Company charged with management of the
    Company shall at any time fail to be a Subsidiary of Fresenius
    AG, or if Fresenius AG shall fail at any time to own and control
    more than 25% of the capital stock with ordinary voting power in
    the Company;



 



    (2) if the Company is no longer organized as a KGaA, any
    event the result of which is that (A) any
    “person” or “group” (as such terms are used
    in Sections 13(d) and 14(d) of the Exchange Act), other
    than the Permitted Holders, is or becomes the beneficial owner
    (as defined in
    Rules 13d-3
    and 13d-5
    under the Exchange Act, except that such Person or group shall
    be deemed to have “beneficial ownership” of all shares
    that any such Person or group has the right to acquire, whether
    such right is exercisable immediately or only after the passage
    of time), directly or indirectly, of more than 35% of the total
    voting power of the Voting Stock of the Company and (B) the
    Permitted Holders do not “beneficially own” (as
    defined in
    Rules 13d-3
    and 13d-5 of
    the Exchange Act), directly or indirectly, in the aggregate a
    greater percentage of the total voting power of the Voting Stock
    of the Company;



 



    (3) any sale, lease, exchange or other transfer (in one
    transaction or a series of related transactions) of all or
    substantially all of the assets of the Company to any Person or
    group of related Persons for purposes of Section 13(d) of
    the Exchange Act (a “Group”), together with any
    Affiliates thereof (whether or not otherwise in compliance with
    the provisions herein).




    

    3








 






    “Change of Control Triggering Event” means the
    occurrence of a Change of Control and a Ratings Decline.



 



    “Closing Date” means the date of this Indenture.



 



    “Code” means the United States Internal Revenue
    Code of 1986, as amended.



 



    “Company” means the party named as such in this
    Indenture until a successor replaces it pursuant to this
    Indenture and thereafter means such successor.



 



    “Consolidated Coverage Ratio” of any Person as
    of any date of determination means the ratio of (x) the
    aggregate amount of EBITDA for such Person’s most recently
    ended four full fiscal quarters for which internal financial
    statements are available immediately preceding the date of such
    determination to (y) Consolidated Interest Expense for such
    four fiscal quarters; provided, however, that:



 



    (1) if such Person or any of its Subsidiaries has Incurred
    or repaid, repurchased, defeased or otherwise discharged (in
    each case other than Indebtedness under any revolving credit
    facility unless such Indebtedness has been permanently repaid
    and any related commitment has been terminated) any Indebtedness
    since the beginning of such period that remains outstanding or
    discharged or if the transaction giving rise to the need to
    calculate the Consolidated Coverage Ratio is an Incurrence or
    discharge of Indebtedness, or both, EBITDA and Consolidated
    Interest Expense for such period shall be calculated after
    giving effect on a pro forma basis to such Indebtedness as if
    such Indebtedness had been Incurred or discharged on the first
    day of such period and the Incurrence or discharge of any other
    Indebtedness as if such Incurrence or discharge had occurred on
    the first day of such period,



 



    (2) if since the beginning of such period such Person or
    any of its Subsidiaries shall have made any Asset Disposition,
    the EBITDA for such period shall be reduced by an amount equal
    to the EBITDA (if positive) directly attributable to the assets
    which are the subject of such Asset Disposition for such period,
    or increased by an amount equal to the EBITDA (if negative),
    directly attributable thereto for such period and Consolidated
    Interest Expense for such period shall be reduced by an amount
    equal to the Consolidated Interest Expense directly attributable
    to any Indebtedness of such Person or any of its Subsidiaries
    repaid, repurchased, defeased or otherwise discharged with
    respect to such Person and its continuing Subsidiaries in
    connection with such Asset Disposition for such period (or, if
    the Capital Stock of any Subsidiary is sold, the Consolidated
    Interest Expense for such period of credit and directly
    attributable to the Indebtedness of such Subsidiary to the
    extent such Person and its continuing Subsidiaries are no longer
    liable for such Indebtedness after such Asset Disposition),



 



    (3) if since the beginning of such period such Person or
    any of its Subsidiaries (by merger or otherwise) shall have made
    an Investment in any Subsidiary (or any Person which becomes a
    Subsidiary) or an acquisition of assets, which constitutes all
    or substantially all of an operating unit of a business, EBITDA
    and Consolidated Interest Expense for such period shall be
    calculated after giving pro forma effect thereto (including the
    Incurrence of any Indebtedness) as if such Investment or
    acquisition occurred on the first day of such period, and



 



    (4) if since the beginning of such period any Person (that
    subsequently became a Subsidiary or was merged with or into such
    Person or any of its Subsidiaries since the beginning of such
    period) shall have made any Asset Disposition, any Investment or
    acquisition of assets that would have required an adjustment
    pursuant to clause (2) or (3) above if made by such
    Person or a Subsidiary of such Person during such period, EBITDA
    and Consolidated Interest Expense for such period shall be
    calculated after giving pro forma effect thereto as if such
    Asset Disposition, Investment or acquisition occurred on the
    first day of such period.



 



    For purposes of this definition, whenever pro forma effect is to
    be given to an acquisition of assets, the amount of income or
    earnings relating thereto and the amount of Consolidated
    Interest Expense associated with any Indebtedness Incurred in
    connection therewith, the pro forma calculations shall be
    determined in good faith by a responsible financial or
    accounting officer of the Company, as applicable. If any
    Indebtedness bears a floating rate of interest and is being
    given pro forma effect, the interest of such Indebtedness shall
    be calculated as if the rate in effect on the date of
    determination had been the applicable rate for the entire period
    (taking into account any Interest




    

    4








 






    Rate Agreement applicable to such Indebtedness if such Interest
    Rate Agreement has a remaining term in excess of 12 months).



 



    “Consolidated Interest Expense” means, with
    respect to any Person for any period, the total interest expense
    of such Person and its consolidated Subsidiaries, including the
    amortization of debt discount and premium, the interest
    component under capital leases and the implied interest
    component (if any) under any Receivables Financing, in each case
    on a consolidated basis determined in accordance with Accounting
    Principles.



 



    “Consolidated Net Income” means, with respect
    to any Person for any period, the net income of such Person and
    its consolidated Subsidiaries, determined on a consolidated
    basis in accordance with Accounting Principles; provided
    that extraordinary gains and losses shall be excluded from
    Consolidated Net Income.



 



    “Consolidated Net Tangible Assets” means, as of
    any date of determination, the total amount of all assets of the
    Company and its Subsidiaries, determined on a consolidated basis
    in accordance with Accounting Principles, as of the end of the
    most recent fiscal quarter for which the Company’s
    financial statements are available, less the sum of:



 



    (1) the Company’s consolidated current liabilities as
    of such quarter end, determined on a consolidated basis in
    accordance with Accounting Principles; and



 



    (2) the Company’s consolidated assets that are
    properly classified as intangible assets as of such quarter end,
    determined on a consolidated basis in accordance with Accounting
    Principles.



 



    “Corporate Trust Office” means the address
    of the Trustee specified in Section 11.1, or such other
    address as to which the Trustee may, from time to time, give
    written notice to the Company.



 



    “Covenant Defeasance” shall have the meaning
    set forth in Section 8.3.



 



    “Credit Facility” means (i) the bank
    credit agreement entered into as of March 31, 2006 among
    the Company, FMCH, the other borrowers identified therein, the
    guarantors identified therein, the lenders party thereto and
    Bank of America, N.A., as administrative agent, as amended,
    modified, renewed, refunded, replaced, restated or refinanced
    from time to time (the “Revolving Credit Facility”)
    and (ii) the term loan credit agreement entered into as of
    March 31, 2006 among the Company, FMCH, the other borrowers
    identified therein, the guarantors identified therein, the
    lenders party thereto and Bank of America, N.A., as
    administrative agent, as amended, modified, renewed, refunded,
    replaced, restated or refinanced from time to time.



 



    “Currency Agreement” means any foreign currency
    exchange contract, currency swap agreement or other similar
    agreement or arrangement.



 



    “Custodian” means any receiver, trustee,
    assignee, liquidator, sequestration or similar official under
    any Bankruptcy Law.



 



    “Default” means any event that is, or after
    notice or passage of time or both would be, an Event of Default
    (as defined herein).



 



    “Default Interest Payment Date” shall have the
    meaning set forth in Section 2.13.



 



    “Defeasance Trust” shall have the meaning set
    forth in Section 8.4.



 



    “Definitive Notes” means Notes in definitive
    registered form substantially in the form of
    Exhibit B.



 



    “Depositary” or “DTC” means,
    with respect to the Notes issued in the form of one or more
    Global Notes, The Depository Trust Company or another
    Person designated as Depositary by the Company, which Person
    must be a depositary registered under the Exchange Act.



 



    “Designated Government Obligations” means
    direct non-callable and non-redeemable obligations (in each
    case, with respect to the issuer thereof) of any member state of
    the European Union that is a member of the European Union as of
    the date of this Indenture or of the United States of America
    (including, in each case, any agency or instrumentality
    thereof), as the case may be, the payment of which is secured by
    the full faith and credit of the applicable member state or of
    the United States of America, as the case may be.




    

    5








 






    “Disqualified Stock” means, with respect to any
    Person, any Capital Stock that by its terms (or by the terms of
    any security into which it is convertible or for which it is
    exchangeable) or upon the happening of any event:



 



    (1) matures or is mandatorily redeemable pursuant to a
    sinking fund obligation or otherwise;



 



    (2) is convertible or exchangeable for Indebtedness or
    Disqualified Stock; or



 



    (3) is redeemable at the option of the holder thereof, in
    whole or in part,



 



    in each case on or prior to the first anniversary of the Stated
    Maturity of the Notes; provided, however, that any
    Capital Stock that would not constitute Disqualified Stock but
    for provisions thereof giving holders thereof the right to
    require such Person to repurchase or redeem such Capital Stock
    upon the occurrence of an “asset sale” or “change
    of control” occurring prior to the first anniversary of the
    Stated Maturity of the Notes shall not constitute Disqualified
    Stock if the “asset sale” or “change of
    control” provisions applicable to such Capital Stock are
    not more favorable to the holders of such Capital Stock than the
    provisions of Section 4.11.



 



    “EBITDA” for any Person for any period means
    the sum of Consolidated Net Income of such Person, plus
    Consolidated Interest Expense of such Person plus the following
    to the extent deducted in calculating such Consolidated Net
    Income:



 



    (1) all income tax expense of such Person and its
    Subsidiaries,



 



    (2) depreciation expense, and



 



    (3) amortization expense, in each case for such period.



 



    Notwithstanding the foregoing, the provision for taxes based on
    the income or profits of, and the depreciation and amortization
    of, a Subsidiary that is not a Wholly Owned Subsidiary shall be
    added to Consolidated Net Income to compute EBITDA only to the
    extent (and in the same proportion) that the net income of such
    Subsidiary was included in calculating Consolidated Net Income
    and only if a corresponding amount would be permitted at the
    date of determination to be dividended to such Person by such
    Subsidiary without prior approval (that has not been obtained),
    pursuant to the terms of its charter and all agreements,
    instruments, judgments, decrees, orders, statutes, rules and
    governmental regulations applicable to such Subsidiary or its
    stockholders.



 



    “Event of Default” shall have the meaning set
    forth in Section 6.1.



 



    “Exchange Act” means the United States
    Securities Exchange Act of 1934, as amended.



 



    “Finance Subsidiary” means any Wholly Owned
    Subsidiary of the Company created for the sole purpose of
    issuing evidences of Indebtedness and which is subject to
    similar restrictions on its activities as the Issuer.



 



    “General Partner” means Fresenius Medical Care
    Management AG, a German stock corporation, including its
    successors and assigns and other Persons, in each case who serve
    as the general partner (persönlich haftender
    Gesellschaft) of the Company from time to time.



 



    “Global Notes” shall mean Notes in registered
    global form substantially in the form of Exhibit A.



 



    “Guarantee” means any obligation, contingent or
    otherwise, of any Person directly or indirectly guaranteeing any
    Indebtedness or other obligation of any Person (other than, in
    the case of subsidiaries, obligations which would not constitute
    Indebtedness) and any obligation, direct or indirect, contingent
    or otherwise, of such Person:



 



    (1) to purchase or pay (or advance or supply funds for the
    purchase or payment of) such Indebtedness or other obligation of
    such Person (whether arising by virtue of partnership
    arrangements, or by agreements to keep-well, to purchase assets,
    goods, securities or services, to take-or-pay or to maintain
    financial statement conditions or otherwise), or



 



    (2) entered into for the purpose of assuring in any other
    manner the obligee of such Indebtedness or other obligation of
    the payment thereof or to protect such obligee against loss in
    respect thereof (in whole or in part);



 



    provided, however, that the term
    “Guarantee” shall not include endorsements for
    collection or deposit in the ordinary course of business. The
    term “Guarantee” used as a verb has a corresponding
    meaning.




    

    6








 






    “Guarantee Agreement” means, in the context of
    a consolidation, merger or sale of all or substantially all of
    the assets of a Guarantor, an agreement by which the Surviving
    Person from such a transaction expressly assumes all of the
    obligations of such Guarantor under its Note Guarantee.



 



    “Guarantor” means each of the Company, FMCH and
    FMCD and any successor or additional Guarantor, unless released
    from its obligations under its Note Guarantee in accordance with
    the terms of this Indenture.



 



    “Hedging Obligations” of any Person means the
    obligations of such Person pursuant to any Interest Rate
    Agreement or Currency Agreement.



 



    “Holder” means a Person in whose name a Note is
    registered on the Registrar’s books.



 



    “IFRS” means international financial reporting
    standards and interpretations issued by the International
    Accounting Standards Board and adopted by the European
    Commission, as in effect from time to time.



 



    “Incur” means issue, assume, guarantee, incur
    or otherwise become liable for; provided, however,
    that any Indebtedness or Capital Stock of a Person existing at
    the time such Person becomes a Subsidiary (whether by merger,
    consolidation, acquisition or otherwise) shall be deemed to be
    Incurred by such Subsidiary at the time it becomes a Subsidiary.
    The term “Incurrence” when used as a noun shall have a
    correlative meaning. The accretion of principal of a
    non-interest bearing or other discount security shall be deemed
    the Incurrence of Indebtedness.



 



    “Indebtedness” means, with respect to any
    Person on any date of determination (without duplication):



 



    (1) the principal of and premium (if any) in respect of
    (A) indebtedness of such Person for money borrowed and
    (B) indebtedness evidenced by notes, debentures, bonds or
    other similar instruments for the payment of which such Person
    is responsible or liable,



 



    (2) all Capital Lease Obligations of such Person,



 



    (3) all obligations of such Person issued or assumed as the
    deferred purchase price of property or services, all conditional
    sale obligations of such Person and all obligations of such
    Person under any title retention agreement (other than
    (x) customary reservations or retentions of title under
    agreements with suppliers entered into in the ordinary course of
    business, (y) trade debt Incurred in the ordinary course of
    business and not overdue by 90 days or more and
    (z) obligations Incurred under a pension, retirement or
    deferred compensation program or arrangement regulated under the
    Employee Retirement Income Security Act of 1974, as amended, or
    the laws of a foreign government),



 



    (4) all obligations of such Person for the reimbursement of
    any obligor on any letter of credit, bank guarantee,
    banker’s acceptance or similar credit transaction (except
    to the extent such reimbursement obligation relates to trade
    debt in the ordinary course of business and such reimbursement
    obligation is paid within 30 days after payment of the
    trade debt),



 



    (5) the amount of all obligations of such Person with
    respect to the redemption, repayment or other repurchase of any
    Disqualified Stock or, with respect to any subsidiary of such
    Person, any Preferred Stock (but excluding, in each case, any
    accrued dividends),



 



    (6) all obligations of the type referred to in
    clauses (1) through (5) of other Persons and all
    dividends of other Persons for the payment of which, in either
    case, such Person is responsible or liable, directly or
    indirectly, as obligor, guarantor or otherwise, including by
    means of any Guarantee,



 



    (7) all obligations of the type referred to in
    clauses (1) through (6) of other Persons secured by
    any Lien on any property or asset of such Person (whether or not
    such obligation is assumed by such Person), the amount of such
    obligation being deemed to be the lesser of the value of such
    property or assets or the amount of the obligation so
    secured, and



 



    (8) to the extent not otherwise included in this
    definition, Hedging Obligations of such Person.



 



    The amount of Indebtedness of any Person at any date shall be
    the outstanding balance at such date of all unconditional
    obligations as described above and the maximum liability, upon
    the occurrence of the contingency




    

    7








 






    giving rise to the obligation, of any contingent obligations at
    such date. For the avoidance of doubt, the following will not be
    treated as Indebtedness:



 



    (1) Indebtedness Incurred in respect of workers’
    compensation claims, self insurance obligations, performance,
    surety and similar bonds and completion guarantees provided in
    this ordinary course of business;



 



    (2) Indebtedness arising from agreements providing for
    indemnification, adjustment of purchase price or similar
    obligations, in each case, incurred or assumed in connection
    with the disposition or acquisition of any business, assets or
    Capital Stock of a Subsidiary, provided, that the maximum
    aggregate liability in respect of all such Indebtedness (other
    than in respect of tax and environmental indemnities) shall at
    no time exceed, in the case of a disposition, the gross proceeds
    actually received by the Company and its Subsidiaries in
    connection with such disposition and, in the case of an
    acquisition, the fair market value of any business assets or
    Capital Stock acquired;



 



    (3) Indebtedness arising from the honoring by a bank or
    other financial institution of a check, draft or similar
    instrument (except in the case of daylight overdrafts) drawn
    against insufficient funds in the ordinary course of business,
    provided that such Indebtedness is extinguished within
    five Business Days of the Incurrence.



 



    “Indenture” means this Indenture, as amended,
    modified or supplemented from time to time in accordance with
    the terms hereof.



 



    “Initial Notes” shall have the meaning set
    forth in the preamble to this Indenture.



 



    “Interest Rate Agreement” means any interest
    rate swap agreement, interest rate cap agreement or other
    financial agreement or arrangement.



 



    “Investment” in any Person means any direct or
    indirect advance, loan (other than advances to customers in the
    ordinary course of business that are recorded as accounts
    receivable on the balance sheet of such Person) or other
    extensions of credit (including by way of Guarantee or similar
    arrangement) or capital contribution to (by means of any
    transfer of cash or other property to others or any payment for
    property or services for the account or use of others), or any
    purchase or acquisition of Capital Stock, Indebtedness or other
    similar instruments issued by such Person; provided,
    however, that advances, loans or other extensions of
    credit arising under the Cash Management Arrangements shall not
    be deemed Investments.



 



    “Investment Grade” means a rating of BBB- or
    higher by S&P and Baa3 or higher by Moody’s or the
    equivalent of such ratings by S&P or Moody’s and the
    equivalent in respect of rating categories of any Rating
    Agencies substituted for S&P or Moody’s.



 



    “Investment Grade Status” exists as of any time
    if at such time both (i) the rating assigned to the Notes
    by Moody’s is at least Baa3 (or the equivalent) or higher
    and (ii) the rating assigned to the Notes by S&P is at
    least BBB- (or the equivalent) or higher and the equivalent in
    respect of rating categories of any Rating Agencies substituted
    for S&P or Moody’s.



 



    “Issue Date” means the date on which any Notes
    are issued.



 



    “Issuer” means FMC Finance III S.A. until
    a successor replaces it pursuant to this Indenture and
    thereafter means such successor.



 



    “Issuer Order” means a written order or request
    signed in the name of the Issuer by a Responsible Officer of the
    Issuer and delivered to the Trustee by the Issuer.



 



    “KGaA” means a German partnership limited by
    shares (Kommanditgesellschaft auf Aktien).



 



    “Legal Defeasance” shall have the meaning set
    forth in Section 8.2.



 



    “Lien” means any mortgage, pledge, security
    interest, encumbrance, lien or charge of any kind (including any
    conditional sale or other title retention agreement or lease in
    the nature thereof).



 



    “Maturity Date” means July 15, 2017.




    

    8








 






    “Moody’s” means Moody’s Investors
    Service, Inc. and its successors.



 



    “Note Guarantee” means the Guarantee by a
    Guarantor of the Issuer’s obligations with respect to the
    Notes.



 



    “Notes” shall have the meaning set forth in the
    preamble of this Indenture.



 



    “Officers’ Certificate” means a
    certificate signed by two Responsible Officers of the Issuer or
    of any Guarantor.



 



    “Opinion of Counsel” means a written opinion
    from legal counsel who is reasonably acceptable to the Trustee.
    The counsel may be an employee of or counsel to the Issuer, a
    Guarantor or the Trustee.



 



    “Paying Agent” shall have the meaning set forth
    in Section 2.3.



 



    “Permitted Holder” means Fresenius AG.



 



    “Permitted Liens” means, with respect to any
    Person:



 



    (1) pledges or deposits by such Person under workmen’s
    compensation laws, unemployment insurance laws or similar
    legislation, or good faith deposits in connection with bids,
    tenders, contracts (other than for the payment of Indebtedness)
    or leases to which such Person is a party, or deposits to secure
    public or statutory obligations of such Person or deposits or
    cash or Designated Government Obligations to secure surety or
    appeal bonds to which such Person is a party, or deposits as
    security for contested taxes or import or customs duties or for
    the payment of rent, in each case Incurred in the ordinary
    course of business;



 



    (2) Liens imposed by law, including carriers’,
    warehousemen’s and mechanics’ Liens, in each case for
    sums not yet due or being contested in good faith if a reserve
    or other appropriate provisions, if any, as are required by
    Accounting Principles have been made in respect thereof;



 



    (3) Liens for taxes, assessments or other governmental
    charges not yet subject to penalties for non-payment or which
    are being contested in good faith provided appropriate reserves,
    if any, as are required by Accounting Principles have been made
    in respect thereof;



 



    (4) Liens in favor of issuers of surety or performance
    bonds or letters of credit or bankers’ acceptances issued
    pursuant to the request of and for the account of such Person in
    the ordinary course of its business;



 



    (5) encumbrances, easements or reservations of, or rights
    of others for, licenses, rights of way, sewers, electric lines,
    telegraph and telephone lines and other similar purposes, or
    zoning or other restrictions as to the use of real properties or
    liens incidental to the conduct of the business of such Person
    or to the ownership of its properties which do not in the
    aggregate materially adversely affect the value of said
    properties or materially impair their use in the operation of
    the business of such Person;



 



    (6) Liens securing Hedging Obligations so long as the
    related Indebtedness is, and is permitted to be, secured by a
    Lien on the same property securing such Hedging Obligation or
    Interest Rate Agreement;



 



    (7) leases, subleases and licenses of real property which
    do not materially interfere with the ordinary conduct of the
    business of the Company or any of its Subsidiaries and leases,
    subleases and licenses of other assets in the ordinary course of
    business;



 



    (8) judgment Liens not giving rise to an Event of Default
    so long as such Lien is adequately bonded and any appropriate
    legal proceedings which may have been duly initiated for the
    review of such judgment have not been finally terminated or the
    period within which such proceedings may be initiated has not
    expired;



 



    (9) Liens for the purpose of securing the payment (or the
    refinancing of the payment) of all or a part of the purchase
    price of, or Capital Lease Obligations with respect to, assets
    or property acquired or constructed in the ordinary course of
    business; provided that:



 



    (a) the aggregate principal amount secured by such Liens
    does not exceed the cost of the assets or property so acquired
    or constructed; and



 



    (b) such Liens are created within 180 days of
    construction or acquisition of such assets or property (or, upon
    a refinancing, replace Liens created within such period) and do
    not encumber any other assets or




    

    9








 






    property of the Company or any Subsidiary other than such assets
    or property and assets affixed or appurtenant thereto;



 



    (10) Liens arising solely by virtue of any statutory or
    common law provisions relating to banker’s Liens, rights of
    set-off or similar rights and remedies as to deposit accounts or
    other funds maintained with a depositary institution;
    provided that such deposit account is not intended by the
    Company or any Subsidiary to provide collateral to the
    depositary institution;



 



    (11) Liens arising from United States Uniform Commercial
    Code financing statement filings (or similar filings in other
    applicable jurisdictions) regarding operating leases entered
    into by the Company and its Subsidiaries in the ordinary course
    of business;



 



    (12) Liens existing on the Closing Date;



 



    (13) Liens on property or shares of stock of a Person at
    the time such Person becomes a Subsidiary; provided,
    however, that such Liens are not created, Incurred or
    assumed in connection with, or in contemplation of, such other
    Person becoming a Subsidiary; provided further, however, that
    any such Lien may not extend to any other property owned by the
    Company or any Subsidiary;



 



    (14) Liens on property at the time the Company or a
    Subsidiary acquired the property, including any acquisition by
    means of a merger or consolidation with or into the Company or
    any Subsidiary; provided, however, that such Liens
    are not created, Incurred or assumed in connection with, or in
    contemplation of, such acquisition; provided further,
    however, that such Liens may not extend to any other
    property owned by the Company or any Subsidiary;



 



    (15) Liens securing Indebtedness or other obligations of
    the Company to a Subsidiary or of a Subsidiary owing to the
    Company or a Subsidiary;



 



    (16) Liens securing the Notes and all other Indebtedness
    which by its terms must be secured if the Notes are secured;



 



    (17) Liens securing Indebtedness incurred to refinance
    Indebtedness that was previously secured; provided, that
    such Lien is limited to all or part of the same property or
    assets that secured the Indebtedness refinanced;



 



    (18) Liens arising by operation of law or by agreement to
    the same effect in the ordinary course of business;



 



    (19) Liens securing the Credit Facility;



 



    (20) Liens securing the A/R Facility; and



 



    (21) other Liens securing Indebtedness having an aggregate
    principal amount, measured as of the date of creation of any
    such Lien and the date of incurrence of any such Indebtedness,
    not to exceed 5% of the Company’s Consolidated Net Tangible
    Assets.



 



    “Person” means any individual, corporation,
    partnership, joint venture, association, joint-stock company,
    trust, unincorporated organization, government or any agency,
    instrumentality or political subdivision thereof, or any other
    entity.



 



    “Preferred Stock,” as applied to the Capital
    Stock of any corporation, means Capital Stock of any class or
    classes (however designated) which is preferred as to the
    payment of dividends, or as to the distribution of assets upon
    any voluntary or involuntary liquidation or dissolution of such
    corporation, over shares of Capital Stock of any other class of
    such corporation.



 



    “Private Placement Legend” means the legend set
    forth in Section 2.7(f).



 



    “Qualified Capital Stock” means any Capital
    Stock which is not Disqualified Stock.




    

    10








 






    “Rating Agencies” means:



 



    (1) S&P and



 



    (2) Moody’s, or



 



    (3) if S&P or Moody’s or both shall not make a
    rating of the Notes publicly available, despite the Company
    using its commercially reasonable efforts to obtain such a
    rating, a nationally recognized securities rating agency or
    agencies, as the case may be, selected by the Company, which
    shall be substituted for S&P or Moody’s or both, as
    the case may be.



 



    “Rating Category” means:



 



    (1) with respect to S&P, any of the following
    categories: BB, B, CCC, CC, C and D (or equivalent successor
    categories),



 



    (2) with respect to Moody’s, any of the following
    categories: Ba, B, Caa, Ca, C and D (or equivalent successor
    categories), and



 



    (3) the equivalent of any such category of S&P or
    Moody’s used by another rating agency. In determining
    whether the rating of the Notes has decreased by one or more
    gradations, gradations within rating categories
    (+ and — for S&P, 1, 2 and 3 for
    Moody’s; or the equivalent gradations for another rating
    agency) shall be taken into account (e.g., with respect to
    S&P, a decline in a rating from BB+ to BB, as well as from
    BB- to B+, which constitute a decrease of one gradation).



 



    “Rating Date” means the date which is
    90 days prior to the earlier of (1) a Change of
    Control and (2) public notice of the occurrence of a Change
    of Control or of the intention by the Company or any Person to
    effect a Change of Control.



 



    “Ratings Decline” means the occurrence on or
    within 90 days after the date of the first public notice of
    either the occurrence of a Change of Control or of a transaction
    which will effect a Change of Control, whichever is earlier
    (which period shall be extended so long as any Rating Agency has
    publicly announced that it is considering a possible downgrade
    of the Notes) of (1) in the event the Notes are rated by
    either Moody’s or S&P on the Rating Date as Investment
    Grade, a decrease in the rating of the Notes by both Rating
    Agencies to a rating that is below Investment Grade, or
    (2) in the event the Notes are rated below Investment Grade
    by both Rating Agencies on the Rating Date, a decrease in the
    rating of the Notes by either Rating Agency by one or more
    gradations (including gradations within Rating Categories as
    well as between Rating Categories).



 



    “Receivables Financings” means:



 



    (1) the A/R Facility, and



 



    (2) any financing transaction or series of financing
    transactions that have been or may be entered into by the
    Company or a Subsidiary pursuant to which the Company or a
    Subsidiary may sell, convey or otherwise transfer to a
    Subsidiary or Affiliate, or any other Person, or may grant a
    security interest in, any receivables or interests therein
    secured by the merchandise or services financed thereby (whether
    such receivables are then existing or arising in the future) of
    the Company or such Subsidiary, as the case may be, and any
    assets related thereto, including without limitation, all
    security interests in merchandise or services financed thereby,
    the proceeds of such receivables, and other assets which are
    customarily sold or in respect of which security interests are
    customarily granted in connection with securitization
    transactions involving such assets.



 



    “Record Date” means the Record Dates specified
    in the Notes.



 



    “Redemption Date” when used with respect
    to any Note to be redeemed, means the date fixed for such
    redemption pursuant to this Indenture and Paragraph 8 of
    the Notes.



 



    “Redemption Price” when used with respect
    to any Note to be redeemed, means the price fixed for such
    redemption pursuant to this Indenture and Paragraphs 8 and
    9 of the Notes.




    

    11








 






    “Refinance” means, in respect of any
    Indebtedness, to refinance, extend, renew, refund, repay,
    prepay, redeem, defease or retire, or to issue other
    Indebtedness in exchange or replacement for, such Indebtedness.
    “Refinanced” and “Refinancing” shall have
    correlative meanings.



 



    “Refinancing Indebtedness” means Indebtedness
    that Refinances any Indebtedness of the Company or any
    Subsidiary existing on the Closing Date or Incurred in
    compliance with Section 4.3, including Indebtedness that
    Refinances Refinancing Indebtedness; provided,
    however, that:



 



    (1) such Refinancing Indebtedness has a Stated Maturity no
    earlier than the Stated Maturity of the Indebtedness being
    Refinanced,



 



    (2) such Refinancing Indebtedness has an Average Life at
    the time such Refinancing Indebtedness is Incurred that is equal
    to or greater than the Average Life of the Indebtedness being
    Refinanced, and



 



    (3) such Refinancing Indebtedness has an aggregate
    principal amount (or if Incurred with original issue discount,
    an aggregate issue price) that is equal to or less than the
    aggregate principal amount (or if Incurred with original issue
    discount, the aggregate accreted value) then outstanding or
    committed (plus fees and expenses, including any premium and
    defeasance costs) under the Indebtedness being Refinanced;
    provided further, however, that Refinancing
    Indebtedness shall not include (x) Indebtedness of a
    Subsidiary that Refinances Indebtedness of the Company or
    (y) Indebtedness of the Company or a Subsidiary that
    Refinances Indebtedness of another Subsidiary.



 



    “Registrar” shall have the meaning set forth in
    Section 2.3.



 



    “Regulation S” means Regulation S
    (including any successor regulation thereto) under the
    Securities Act, as it may be amended from time to time.



 



    “Regulation S Global Note” shall have the
    meaning set forth in Section 2.1.



 



    “Regulation S Notes” shall have the
    meaning set forth in Section 2.1.



 



    “Relevant Taxing Jurisdiction” shall have the
    meaning set forth in Paragraph 2 of the Notes.



 



    “Responsible Officer” means the chief executive
    officer, president, chief financial officer, senior vice
    president-finance, treasurer, assistant treasurer, managing
    director, management board member or director of a company (or
    in the case of the Company, a Responsible Officer of its General
    Partner, other managing entity or other Person authorized to act
    on its behalf, and if such Person is also a partnership, limited
    liability company or similarly organized entity, a Responsible
    Officer of the entity that may be authorized to act on behalf of
    such Person).



 



    “Restricted Period” shall have the meaning set
    forth in Section 2.7(b) hereof.



 



    “Rule 144” means Rule 144 (including
    any successor regulation thereto) under the Securities Act, as
    it may be amended from time to time.



 



    “Rule 144A” means Rule 144A
    (including any successor regulation thereto) under the
    Securities Act, as it may be amended from time to time.



 



    “Rule 144A Global Note” shall have the
    meaning set forth in Section 2.1 hereof.



 



    “Rule 144A Notes” shall have the meaning
    set forth in Section 2.1 hereof.



 



    “Sale and Leaseback Transaction” means any
    direct or indirect arrangement with any Person or to which any
    such Person is a party, providing for the leasing to the Issuer
    or any Guarantor or a Subsidiary of any property, whether owned
    by the Issuer, a Guarantor or any Subsidiary at the Closing Date
    or later acquired, which has been or is to be sold or
    transferred by the Issuer, a Guarantor or such Subsidiary to
    such Person or to any other Person from whom funds have been or
    are to be advanced by such Person on the security of such
    property.



 



    “SEC” means the U.S. Securities and
    Exchange Commission, as from time to time constituted, created
    under the Exchange Act, or if at any time after the execution of
    this Indenture such Commission is not existing and




    

    12








 






    performing the duties now assigned to it under the Securities
    Act and the Exchange Act, then the body performing such duties
    at such time.



 



    “Secured Indebtedness” means any Indebtedness
    of the Company secured by a Lien.



 



    “Securities Act” means the U.S. Securities
    Act of 1933 or any successor statute thereto, in each case as
    amended from time to time.



 



    “Significant Subsidiary,” with respect to any
    Person, means any Subsidiary of such Person that satisfies the
    criteria for a “significant subsidiary” set forth in
    Rule 1.02 of
    Regulation S-X
    under the Exchange Act.



 



    “S&P” means Standard &
    Poor’s Corporation and its successors.



 



    “Stated Maturity” means, with respect to any
    security, the date specified in such security as the fixed date
    on which the final payment of principal of such security is due
    and payable, including pursuant to any mandatory redemption
    provision (but excluding any provision providing for the
    repurchase of such security at the option of the holder thereof
    upon the happening of any contingency unless such contingency
    has occurred).



 



    “Subordinated Obligation” means any
    Indebtedness of the Issuer or a Guarantor (whether outstanding
    on the Closing Date or thereafter Incurred) that is subordinate
    or junior in right of payment to the Notes or such
    Guarantor’s Note Guarantees pursuant to a written agreement
    to that effect.



 



    “Subsidiary” means, with respect to any Person,
    any corporation, limited liability company, association,
    partnership or other business entity of which more than 50% of
    the total voting power of shares of Voting Stock is at the time
    owned or controlled, directly or indirectly, by:



 



    (1) such Person;



 



    (2) such Person and one or more Subsidiaries of such
    Person, or



 



    (3) one or more Subsidiaries of such Person.



 



    Unless otherwise provided, all references to a Subsidiary shall
    be a Subsidiary of the Company.



 



    “Successor” shall have the meaning set forth in
    Section 5.3.



 



    “Surviving Person” means, with respect to any
    Person involved in any merger, consolidation or other business
    combination or the sale, assignment, transfer, lease, conveyance
    or other disposition of all or substantially all of such
    Person’s assets, the Person formed by or surviving such
    transaction or the Person to which such disposition is made.



 



    “Tax Redemption Date” when used with
    respect to any Note to be redeemed, means the date fixed for
    such redemption pursuant to this Indenture and Paragraph 9
    of the Notes.



 



    “Taxes” shall have the meaning set forth in
    Paragraph 2 of the Notes.



 



    “Trust Officer” means any officer of the
    Trustee (or any successor of the Trustee), including any
    director, managing director, vice president, assistant vice
    president, corporate trust officer, assistant corporate trust
    officer, associate or any other officer or assistant officer of
    the Trustee customarily performing functions similar to those
    performed by the Persons who at that time shall be such
    officers, and also means, with respect to a particular corporate
    trust matter, any other officer to whom such trust matter is
    referred because of his or her knowledge of and familiarity with
    the particular subject.



 



    “TIA” means the Trust Indenture Act
    of 1939 (15 U.S. Code
    77aaa-77bbbb)
    as in effect on the date of this Indenture; provided,
    however, that in the event the Trust Indenture Act
    of 1939 is amended after such date, “TIA” means, to
    the extent required by any such amendment, the
    Trust Indenture Act of 1939 as so amended.



 



    “Treasury Rate” means, with respect to a
    Redemption Date, the yield to maturity at the time of
    computation of United States Treasury securities with a constant
    maturity (as compiled and published in the most recent Federal
    Reserve Statistical Release H. 15(519) that has become publicly
    available at least two Business Days prior to such
    Redemption Date (or, if such Statistical Release is no
    longer published, any publicly available source of similar
    market data)) most nearly equal to the period from such
    Redemption Date to July 15, 2017; provided,
    however, that




    

    13








 






    if the period from the Redemption Date to such date is not
    equal to the constant maturity of a United States Treasury
    security for which a weekly average yield is given, the Treasury
    Rate shall be obtained by linear interpolation (calculated to
    the nearest one-twelfth of a year) from the weekly average
    yields of United States Treasury securities for which such
    yields are given, except that if the period from the
    Redemption Date to such date is less than one year, the
    weekly average yield on actually traded United States Treasury
    securities adjusted to a constant maturity of one year shall be
    used.



 



    “Trustee” means the party named as such in this
    Indenture until a successor replaces it in accordance with the
    provisions of this Indenture and thereafter means such successor.



 



    “U.S. GAAP” means generally accepted
    accounting principles in the United States of America as in
    effect from time to time, including those set forth in:



 



    (1) the opinions and pronouncements of the Accounting
    Principles Board of the American Institute of Certified Public
    Accountants,



 



    (2) statements and pronouncements of the Financial
    Accounting Standards Board,



 



    (3) such other statements by such other entity as approved
    by a significant segment of the accounting profession, and



 



    (4) the rules and regulations of the SEC governing the
    inclusion of financial statements (including pro forma financial
    statements) in periodic reports required to be filed pursuant to
    Section 13 of the Exchange Act, including opinions and
    pronouncements in staff accounting bulletins and similar written
    statements from the accounting staff of the SEC.



 



    “U.S. Person” means a
    “U.S. person” as defined in Rule 902
    under the Securities Act or any successor rule.



 



    “Voting Stock” of a Person means all classes of
    Capital Stock or other interests (including partnership
    interests) of such Person then outstanding and normally entitled
    (without regard to the occurrence of any contingency) to vote in
    the election of directors, managers or trustees thereof.



 



    “Wholly Owned Subsidiary” means a Subsidiary
    all the Capital Stock of which (other than
    (i) directors’ qualifying shares and shares held by
    other Persons to the extent such shares are required by
    applicable law to be held by a Person other than its parent or a
    Subsidiary of its parent and (ii) shares of Preferred Stock
    of FMCH other than the Class C Preferred Stock or other
    classes of Preferred Stock of FMCH issued to the Company or a
    Wholly Owned Subsidiary) is owned by the Company or by one or
    more Wholly Owned Subsidiaries, or by the Company and one or
    more Wholly Owned Subsidiaries.



 



    Section 1.2  Rules
    of Construction.  Unless the context otherwise
    requires:



 



    (a) a term has the meaning assigned to it;



 



    (b) an accounting term not otherwise defined has the
    meaning assigned to it in accordance with Accounting Principles;



 



    (c) “or” is not exclusive;



 



    (d) words in the singular include the plural, and words in
    the plural include the singular;



 



    (e) provisions apply to successive events and
    transactions; and



 



    (f) “herein,” “hereof” and other
    words of similar import refer to this Indenture as a whole and
    not to any particular Article, Section or other subdivision.



 



    Section 1.3  Incorporation
    by Reference of Trust Indenture Act.



 



    Whenever this Indenture refers to a provision of the TIA, the
    provision is incorporated by reference in, and made a part of,
    this Indenture.




    

    14








 






    The following TIA terms have the following meanings:



 



    “indenture securities” means the Notes and any
    Note Guarantee;



 



    “indenture security holder” means a Holder;



 



    “indenture to be qualified” means this
    Indenture;



 



    “indenture trustee” or “institutional
    trustee” means the Trustee;



 



    “obligor” on the Notes means the Issuer and any
    successor obligor upon the Notes or any Guarantor.



 



    All other terms used in this Indenture that are defined by the
    TIA, defined by TIA reference to another statute or defined by
    the Commission rule under the TIA have the meanings so assigned
    to them therein.



 




    ARTICLE II

    



 




    THE NOTES
    



 



    Section 2.1  Form
    and Dating.  The Notes and the notation
    relating to the Trustee’s certificate of authentication
    thereof, shall be substantially in the form of
    Exhibit A (in the case of Global Notes) and
    Exhibit B (in the case of the Definitive Notes), as
    applicable. The Notes may have notations, legends or
    endorsements required by law, stock exchange rule or usage. The
    Issuer and the Trustee shall approve the form of the Notes and
    any notation, legend or endorsement on them not inconsistent
    with the terms of this Indenture. Each Note shall be dated the
    Issue Date and shall show the date of its authentication.



 



    The terms and provisions contained in the Notes, annexed hereto
    as Exhibits A and B, shall constitute, and
    are hereby expressly made, a part of this Indenture and, to the
    extent applicable, the Issuer, the Guarantors, the Trustee and
    the Paying Agent, by their execution and delivery of this
    Indenture, expressly agree to such terms and provisions and to
    be bound thereby. The Notes will initially be represented by the
    Global Notes. Definitive Notes will be issued in exchange for
    Global Notes only in accordance with Section 2.6(a).



 



    As long as the Notes are in global form, the Paying Agent (in
    lieu of the Trustee) shall be responsible for:



 



    (1) paying sums due on the Global Notes; and



 



    (2) arranging on behalf of and at the expense of the Issuer
    for notices to be communicated to Holders in accordance with the
    terms of this Indenture.



 



    Each reference in this Indenture to the performance of duties
    set forth in clauses (i) and (ii) above by the Trustee
    includes performance of such duties by the Paying Agent.



 



    Notes offered and sold in their initial distribution in reliance
    on Regulation S shall be initially issued as one or more
    global notes, in registered, global form without interest
    coupons, substantially in the form of Exhibit A
    hereto, with such applicable legends as are provided in
    Section 2.7(f)(ii), except as otherwise permitted herein,
    and shall be referred to collectively herein as the
    “Regulation S Global Note.” The aggregate
    principal amount of the Regulation S Global Note may from
    time to time be increased or decreased by adjustments made on
    the records of the Trustee (following receipt by the Trustee of
    all the information required hereunder), as hereinafter provided
    (or by the issue of a further Regulation S Global Note), in
    connection with a corresponding decrease or increase in the
    aggregate principal amount of the Rule 144A Global Note or
    in consequence of the issue of Definitive Notes or Additional
    Notes in the form of Regulation S Global Notes, as
    hereinafter provided. The Regulation S Global Note and all
    other Notes that are not Rule 144A Notes shall collectively
    be referred to herein as the “Regulation S Notes.”



 



    Notes offered and sold in their initial distribution in reliance
    on Rule 144A shall be initially issued as one or more
    global notes in registered, global form without interest
    coupons, substantially in the form of Exhibit A
    hereto, with such applicable legends as are provided in
    Section 2.7(f)(ii), except as otherwise permitted herein,
    and shall be referred to collectively herein as the
    “Rule 144A Global Note.” The aggregate principal
    amount of the Rule 144A Global Note may from time to time
    be increased or decreased by adjustments made on the records of
    the Trustee (following receipt by the Trustee of all information
    required hereunder), as hereinafter provided (or by the issue of
    a further Rule 144A Global Note), in connection with a
    corresponding decrease or increase in the aggregate principal




    

    15








 






    amount of the Regulation S Global Note, or in consequence
    of the issue of Definitive Notes or Additional Rule 144A
    Global Notes, as hereinafter provided. The Rule 144A Global
    Note and all other Notes (excluding interests in Rule 144A
    Global Notes which are transferred in accordance with
    Section 2.7(a) hereunder), if any, evidencing the debt, or
    any portion of the debt, initially evidenced by such
    Rule 144A Global Note, shall collectively be referred to
    herein as the “Rule 144A Notes.”



 



    Section 2.2  Execution
    and Authentication.  One Responsible Officer
    of or one Person duly authorized by all requisite corporate
    actions by the Issuer shall sign the Notes for the Issuer by
    manual or facsimile signature.



 



    If a Responsible Officer whose signature is on a Note was a
    Responsible Officer at the time of such execution but no longer
    holds that office or position at the time the Trustee
    authenticates the Note, the Note shall be valid nevertheless.
    The Trustee shall be entitled to rely on such signature as
    authentic and shall be under no obligation to make any
    investigation in relation thereto.



 



    A Note shall not be valid until an authorized signatory of the
    Trustee manually signs the certificate of authentication on the
    Note. The signature shall be conclusive evidence that the Note
    has been authenticated under this Indenture.



 



    Except as otherwise provided herein, the aggregate principal
    amount of Notes which may be outstanding at any time under this
    Indenture is not limited in amount. The Trustee shall
    authenticate such Notes, which shall consist of (i) Initial
    Notes for original issue on the Closing Date in an aggregate
    principal amount not to exceed $500,000,000 and
    (ii) Additional Notes from time to time for issuance after
    the Closing Date to the extent otherwise permitted hereunder
    (including, without limitation, under Section 4.3 hereof),
    in each case upon receipt of an Issuer Order in the form of an
    Officers’ Certificate. Additional Notes will be treated the
    same as the Notes for all purposes under this Indenture,
    including, without limitation, for purposes of waivers,
    amendments, redemptions and offers to purchase. Such Issuer
    Order shall specify the aggregate principal amount of Notes to
    be authenticated, the type of Notes, the date on which the Notes
    are to be authenticated, the issue price and the date from which
    interest on such Notes shall accrue, whether the Notes are to be
    Initial Notes or Additional Notes and whether or not the Notes
    shall bear the Private Placement Legend, or such other
    information as the Trustee may reasonably request. In
    authenticating the Notes and accepting the responsibilities
    under this Indenture in relation to the Notes, the Trustee shall
    be entitled to receive, and shall be fully protected in relying
    upon, an Opinion of Counsel in a form reasonably satisfactory to
    the Trustee stating that the form and terms thereof have been
    established in conformity with the provisions of this Indenture,
    do not give rise to a Default and that the issuance of such
    Notes has been duly authorized by the Issuer. Upon receipt of an
    Issuer Order, the Trustee shall authenticate Notes in
    substitution for Notes originally issued to reflect any name
    change of the Issuer.



 



    The Trustee may appoint an authenticating agent
    (“Authenticating Agent”) reasonably acceptable to the
    Issuer to authenticate Notes. Unless otherwise provided in the
    appointment, an Authenticating Agent may authenticate Notes
    whenever the Trustee may do so. Each reference in this Indenture
    to authentication by the Trustee includes authentication by such
    Authenticating Agent. An Authenticating Agent has the same
    rights as an Agent to deal with the Issuer and Affiliates of the
    Issuer.



 



    The Notes shall be issuable only in denominations of $75,000 and
    integral multiples of $1,000 in excess thereof.



 



    Section 2.3  Registrar
    and Paying Agent.  The Issuer shall maintain
    (i) an office or agency where Notes may be presented for
    registration of transfer or for exchange (“Registrar”)
    and (ii) an office or agency where Notes may be presented
    for payment to a Paying Agent. The Registrar shall keep a
    register of the Notes and of their transfer and exchange. At the
    option of the Issuer, payment of interest may be made by check
    mailed to the Holders at their addresses set forth in the
    register of Holders. The Issuer may appoint one or more
    co-registrars and one or more additional paying agents. The term
    “Registrar” includes any co-registrar and the term
    “Paying Agent” includes any additional paying agent.
    The Issuer may change any Paying Agent or Registrar without
    notice to any Holder. The Issuer shall notify the Trustee in
    writing of the name and address of any Agent not a party to this
    Indenture. If the Issuer fails to appoint or maintain another
    entity as Registrar or Paying Agent, the Trustee shall act as
    such. The Issuer or any of its Subsidiaries may act as Paying
    Agent or Registrar.




    

    16








 






    The Issuer shall notify the Trustee and the Trustee shall notify
    the Holders of the name and address of any Agent not a party to
    this Indenture. The Issuer shall enter into an appropriate
    agency agreement with any Agent not a party to this Indenture,
    which shall incorporate the provisions of the TIA. The agreement
    shall implement the provisions of this Indenture that relate to
    such Agent. The Issuer shall notify the Trustee of the name and
    address of any such Agent. If the Issuer fails to maintain a
    Registrar or Paying Agent, or fails to give the foregoing
    notice, the Trustee shall act as such, and shall be entitled to
    appropriate compensation in accordance with Section 7.7
    hereof.



 



    The Issuer initially appoints the Trustee to act as the
    Registrar and Paying Agent. If and so long as the Notes are
    listed on the Luxembourg Stock Exchange and the rules of such
    stock exchange so require, the Issuer shall appoint Fortis Bank,
    or such other Person located in Luxembourg and reasonably
    acceptable to the Trustee (reasonableness to be determined
    objectively), as an additional paying agent (“Luxembourg
    Paying Agent”).



 



    The Issuer initially appoints DTC to act as the Depositary with
    respect to the Global Notes.



 



    Section 2.4  Paying
    Agent To Hold Assets in Trust.  The Issuer
    shall require the Paying Agent to agree in writing that such
    Paying Agent shall hold in trust for the benefit of Holders or
    the Trustee all assets held by the Paying Agent for the payment
    of principal of, Additional Amounts, if any, premium, if any, or
    interest on, the Notes, and shall promptly notify the Trustee of
    any Default by the Issuer in making any such payment. The Issuer
    at any time may require a Paying Agent to distribute all assets
    held by it to the Trustee and account for any assets distributed
    and the Trustee may at any time during the continuance of any
    payment Default, upon written request to a Paying Agent, require
    such Paying Agent to distribute all assets held by it to the
    Trustee and to account for any assets distributed. Upon
    distribution to the Trustee of all assets that shall have been
    delivered by the Issuer to the Paying Agent pursuant to this
    Section 2.4, the Paying Agent shall have no further
    liability for such assets.



 



    Section 2.5  List
    of Holders.  The Trustee shall preserve in as
    current a form as is reasonably practicable the most recent list
    available to it of the names and addresses of Holders. If the
    Trustee is not the Registrar, the Issuer shall furnish to the
    Trustee within two Business Days after each Record Date as of
    such Record Date and at such other times as the Trustee may
    request in writing a list as of such date and in such form as
    the Trustee may reasonably require of the names and addresses of
    Holders, which list may be conclusively relied upon by the
    Trustee.



 



    Section 2.6  Book-Entry
    Provisions for Global Notes.  The Global Notes
    initially shall (i) be registered in the name of the DTC or
    its nominee, (ii) be delivered to the DTC or its custodian
    and (iii) bear the following legend:



 



    THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
    INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
    OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE
    DEPOSITORY TRUST COMPANY. THIS NOTE IS NOT
    EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
    OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
    EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
    AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
    NOTE AS A WHOLE TO THE DEPOSITORY TRUST COMPANY OR A
    NOMINEE OF THE DTC) MAY BE REGISTERED EXCEPT IN THE LIMITED
    CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



 



    (a) Notwithstanding any other provisions of this Indenture,
    a Global Note may not be transferred as a whole except by the
    DTC to a nominee of the DTC or by a nominee of the DTC to the
    DTC or another successor of the DTC or a nominee of such
    successor. Interests of beneficial owners in the Global Notes
    may be transferred or exchanged for Definitive Notes in
    accordance with the rules and procedures of the DTC and the
    provisions of Section 2.7. All Global Notes shall be
    exchanged by the Issuer (with authentication by the Trustee) for
    one or more Definitive Notes, if (a) the DTC (i) has
    notified the Issuer that it is unwilling or unable to continue
    as Depositary and (ii) a successor to the DTC has not been
    appointed by the Issuer within 90 days of such
    notification, (b) the DTC so requests following an Event of
    Default hereunder or (c) in whole (but not in part) at any
    time if the Issuer in its sole discretion determines. If an
    Event of Default occurs and is continuing, the Issuer shall, at
    the written request delivered through the DTC, exchange all or
    part of a Global Note for one or more Definitive Notes (with
    authentication by the Trustee); provided, however,
    that the principal amount of such Definitive Notes and such
    Global Note after such exchange shall be $75,000 or integral
    multiples of $1,000 in excess thereof. Whenever all of a Global
    Note is exchanged for one or more Definitive Notes, it shall




    

    17








 






    be surrendered by the Holder thereof to the Trustee for
    cancellation. Whenever a part of a Global Note is exchanged for
    one or more Definitive Notes, the Global Note shall be
    surrendered by the Holder thereof to the Paying Agent who
    together with the Trustee, following such surrender, shall cause
    an adjustment to be made to Schedule A of such Global Note
    such that the principal amount of such Global Note will be equal
    to the portion of such Global Note not exchanged and shall
    thereafter return such Global Note to such Holder. A Global Note
    may not be exchanged for a Definitive Note other than as
    provided in this Section 2.6(a).



 



    (b) In connection with the transfer of Global Notes as an
    entirety to beneficial owners pursuant to Section 2.6(a),
    the Global Notes shall be deemed to be surrendered to the Paying
    Agent for cancellation, and the Issuer shall execute, and the
    Trustee shall upon written instructions from the Issuer
    authenticate and make available for delivery, to each beneficial
    owner in exchange for its beneficial interest in the Global
    Notes, an equal aggregate principal amount of Definitive Notes
    of authorized denominations.



 



    (c) Any Definitive Note delivered in exchange for an
    interest in a Global Note pursuant to Section 2.6(a) shall,
    except as otherwise provided by Section 2.7, bear the
    Private Placement Legend.



 



    Section 2.7  Registration
    of Transfer and Exchange.  Notwithstanding any
    provision to the contrary herein, so long as a Note remains
    outstanding, transfers of beneficial interests in Global Notes
    or transfers of Definitive Notes, in whole or in part, shall be
    made only in accordance with this Section 2.7.



 



    (a) If a holder of a beneficial interest in the
    Rule 144A Global Note wishes at any time to exchange its
    interest in such Rule 144A Global Note for an interest in
    the Regulation S Global Note, or to transfer its interest
    in such Rule 144A Global Note to a Person who wishes to
    take delivery thereof in the form of an interest in such
    Regulation S Global Note, such holder may, subject to the
    rules and procedures of the DTC, to the extent applicable, and
    to the requirements set forth in this Section 2.7(a), exchange
    or cause the exchange or transfer or cause the transfer of such
    interest for an equivalent beneficial interest in such
    Regulation S Global Note. Such exchange or transfer shall only
    be made upon receipt by the Paying Agent, as transfer agent, at
    its Corporate Trust Office of (1) written instructions
    given in accordance with the procedures of the DTC, to the
    extent applicable, from or on behalf of a holder of a beneficial
    interest in the Rule 144A Global Note directing the Paying
    Agent, as transfer agent, to credit or cause to be credited a
    beneficial interest in the Regulation S Global Note in an
    amount equal to the beneficial interest in the Rule 144A
    Global Note to be exchanged or transferred, (2) a written
    order given in accordance with the procedures of the DTC, to the
    extent applicable, containing information regarding the account
    to be credited with such increase and the name of such account,
    and (3) a certificate in the form of Exhibit D
    given by the holder of such beneficial interest stating that the
    exchange or transfer of such interest has been made pursuant to
    and in accordance with Rule 903 or Rule 904 of
    Regulation S or Rule 144 under the Securities Act.
    Upon such receipt, the Paying Agent, as transfer agent, shall
    promptly deliver instructions to the DTC, to reduce or reflect
    on its records a reduction of the Rule 144A Global Note by
    the aggregate principal amount of the beneficial interest in
    such Rule 144A Global Note to be so exchanged or
    transferred from the relevant participant, and the Paying Agent,
    as transfer agent, shall promptly deliver instructions to the
    DTC concurrently with such reduction, to increase or reflect on
    its records an increase of the principal amount of such
    Regulation S Global Note by the aggregate principal amount
    of the beneficial interest in such Rule 144A Global Note to
    be so exchanged or transferred, and to credit or cause to be
    credited to the account of the Person specified in such
    instructions of a beneficial interest in such Regulation S
    Global Note equal to the reduction in the principal amount of
    such Rule 144A Global Note.



 



    (b) If a holder of a beneficial interest in the
    Regulation S Global Note wishes at any time to exchange its
    interest in such Regulation S Global Note for an interest
    in the Rule 144A Global Note, or to transfer its interest
    in such Regulation S Global Note to a Person who wishes to
    take delivery thereof in the form of an interest in such
    Rule 144A Global Note, such holder may, subject to the
    rules and procedures of the DTC, to the extent applicable, and
    to the requirements set forth in this Section 2.7(b), exchange
    or cause the exchange or transfer or cause the transfer of such
    interest for an equivalent beneficial interest in such
    Rule 144A Global Note. Such exchange or transfer shall only
    be made upon receipt by the Paying Agent, as transfer agent, at
    its Corporate Trust Office of (l) instructions given
    in accordance with the procedures of the DTC, to the extent
    applicable, from or on behalf of a beneficial owner of an
    interest in the Regulation S Global Note directing the
    Paying Agent, as transfer agent, to credit or cause to be
    credited a beneficial interest in the Rule 144A Global Note
    in




    

    18








 






    an amount equal to the beneficial interest in the
    Regulation S Global Note to be exchanged or transferred,
    (2) a written order given in accordance with the procedures
    of the DTC, to the extent applicable, containing information
    regarding the account to be credited with such increase and the
    name of such account, and (3) prior to or on the
    40th day after the later of the commencement of the
    offering of the Notes and the relevant Issue Date (the
    “Restricted Period”), a certificate in the form of
    Exhibit E given by the holder of such beneficial
    interest and stating that the Person transferring such interest
    in such Regulation S Note reasonably believes that the
    Person acquiring such interest in such Rule 144A Note is a
    Qualified Institutional Buyer (as defined in Rule 144A) and
    is obtaining such beneficial interest in a transaction meeting
    the requirements of Rule 144A and any applicable securities laws
    of any state of the United States or any other jurisdiction.
    Upon such receipt, the Paying Agent, as transfer agent, shall
    promptly deliver instructions to the DTC to reduce or reflect on
    its records a reduction of the Regulation S Global Note by
    the aggregate principal amount of the beneficial interest in
    such Regulation S Global Note to be exchanged or
    transferred, and the Paying Agent, as transfer agent, shall
    promptly deliver instructions to the DTC concurrently with such
    reduction, to increase or reflect on its records an increase of
    the principal amount of such Rule 144A Global Note by the
    aggregate principal amount of the beneficial interest in such
    Regulation S Global Note to be so exchanged or transferred, and
    to credit or cause to be credited to the account of the Person
    specified in such instructions a beneficial interest in such
    Rule 144A Global Note equal to the reduction in the
    principal amount of such Regulation S Global Note. After
    the expiration of the Restricted Period, the certification
    requirement set forth in clause (3) of the second sentence
    of this Section 2.7(b) will no longer apply to such
    transfers.



 



    (c) Any beneficial interest in one of the Global Notes that
    is transferred to a Person who takes delivery in the form of an
    interest in another Global Note will, upon transfer, cease to be
    an interest in such Global Note and become an interest in the
    other Global Note and, accordingly, will thereafter be subject
    to all transfer restrictions and other procedures applicable to
    beneficial interests in such other Global Note for as long as it
    remains such an interest.



 



    (d) In the event that a Global Note is exchanged for
    Definitive Notes in registered form without interest coupons,
    pursuant to Section 2.6(a), or a Definitive Note in registered
    form without interest coupons is exchanged for another such
    Definitive Note in registered form without interest coupons, or
    a Definitive Note is exchanged for a beneficial interest in a
    Global Note, such Notes may be exchanged or transferred for one
    another only in accordance with such procedures as are
    substantially consistent with the provisions of
    Sections 2.7(b) and (c) above (including the
    certification requirements intended to ensure that such
    exchanges or transfers comply with Rule 144, Rule 144A
    or Regulation S, as the case may be) and as may be from
    time to time adopted by the Issuer and the Trustee.



 



    (e) Prior to the expiration of the Restricted Period,
    beneficial interests in the Regulation S Global Note may
    only be exchanged or transferred in accordance with the
    certification requirements hereof.



 



    (f) (i) Other than in the case of Notes issued
    pursuant to a registration statement which has been declared
    effective under the Securities Act, each Note issued hereunder
    shall, upon issuance, bear the legend set forth in
    clause (ii) below (the “Private Placement
    Legend”) and such legend shall not be removed from such
    Note except as provided in the next sentence. The legend on a
    Note may be removed from a Note if there is delivered to the
    Issuer and the Trustee such satisfactory evidence, which may
    include an opinion of independent counsel licensed to practice
    law in the State of New York, as may be reasonably required by
    the Issuer and the Trustee, that neither such legend nor the
    restrictions on transfer set forth therein are required to
    ensure that transfers of such Note will not violate the
    registration requirements of the Securities Act, and the Issuer
    and the Trustee consent to such removal. Upon provision of such
    satisfactory evidence, the Trustee, at the written direction of
    the Issuer, shall authenticate and deliver in exchange for such
    Note another Note or Notes having an equal aggregate principal
    amount that does not bear such legend. If such a legend required
    for a Note has been removed from a Note as provided above, no
    other Note issued in exchange for all or any part of such Note
    shall bear such legend, unless the Issuer has reasonable cause
    to believe that such other Note is a “restricted
    security” within the meaning of Rule 144 and instructs
    the Trustee to cause a legend to appear thereon.




    

    19








 






    (ii) To the extent required by paragraph (f)(i) above, the
    Notes shall bear the following legend on the face thereof:



 



    “THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
    U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
    “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
    OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST
    OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
    TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
    ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
    EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
    THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
    OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE
    “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO
    YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE AND THE LAST
    DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
    THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) ONLY
    (A) TO THE COMPANY OR ANY OF ITS RESPECTIVE SUBSIDIARIES,
    (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
    DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
    LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
    RULE 144A UNDER THE SECURITIES ACT
    (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES
    IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
    RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
    ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
    GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
    RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
    NON-U.S. PERSONS
    THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
    REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
    “ACCREDITED INVESTOR” WITHIN THE MEANING OF
    RULE 501(a)(1), (2), (3) OR (7) UNDER THE
    SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
    ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
    OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
    MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
    INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
    IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
    SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
    ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT
    PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
    (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
    OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
    TO EITHER OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
    OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
    DATE.”



 



    (g) By its acceptance of any Note bearing the Private
    Placement Legend, each Holder of such a Note acknowledges the
    restrictions on transfer of such Note set forth in this
    Indenture and in the Private Placement Legend and agrees that it
    will transfer such Note only as provided in this Indenture.



 



    Neither the Trustee nor the Paying Agent shall have any
    obligation or duty to monitor, and shall not be liable for any
    failure to, determine or inquire as to compliance with any
    restrictions on transfer imposed under this Indenture or under
    applicable law with respect to any transfer of any interest in
    any Note (including any transfers between or among Agent Members
    or beneficial owners of interest in any Global Note) other than
    to require delivery of such certificates and other documentation
    or evidence as are expressly required by, and to do so if and
    when expressly required by the terms of, this Indenture, and to
    examine the same to determine substantial compliance as to form
    with the express requirements hereof.



 



    The Registrar shall retain copies of all letters, notices and
    other written communications received pursuant to
    Section 2.6 or this Section 2.7. The Issuer shall have
    the right to inspect and make copies of all such letters,
    notices or other written communications at any reasonable time
    upon the giving of reasonable written notice to the Registrar.



 



    (h) Definitive Notes shall be transferable only upon the
    surrender of a Definitive Note for registration of transfer.
    When a Definitive Note is presented to the Registrar or a
    co-registrar with a request to register a




    

    20








 






    transfer, the Registrar shall register the transfer as requested
    if its requirements for such transfers are met. When Definitive
    Notes are presented to the Registrar or a co-registrar with a
    request to exchange them for an equal principal amount of
    Definitive Notes of other denominations, the Registrar shall
    make the exchange as requested if the same requirements are met.
    When a Definitive Note is presented to the Registrar with a
    request to transfer in part, the transferor shall be entitled to
    receive without charge a Definitive Note representing the
    balance of such Definitive Note not transferred. To permit
    registration of transfers and exchanges, the Issuer shall
    execute and the Trustee shall authenticate Definitive Notes at
    the Registrar’s or co-registrar’s request.



 



    (i) The Issuer shall not be required to make, and the
    Registrar need not register transfers or exchanges of,
    Definitive Notes (i) for a period of 15 calendar days prior
    to any date fixed for the redemption of the Notes, (ii) for
    a period of 15 calendar days immediately prior to the date fixed
    for selection of Notes to be redeemed in part, (iii) for a
    payment period of 15 calendar days prior to any Record Date, or
    (iv) that the registered Holder of Notes has tendered (and
    not withdrawn) for repurchase in connection with a Change of
    Control.



 



    (j) Prior to the due presentation for registration of
    transfer of any Definitive Note, the Issuer, the Guarantors, the
    Trustee, the Paying Agent, the Registrar or any co-registrar may
    deem and treat the Person in whose name a Definitive Note is
    registered as the absolute owner of such Definitive Note for the
    purpose of receiving payment of principal, interest or
    Additional Amounts, if any, on such Definitive Note and for all
    other purposes whatsoever, whether or not such Definitive Note
    is overdue, and none of the Issuer, the Guarantors, the Trustee,
    the Paying Agent, the Registrar or any co-registrar shall be
    affected by notice to the contrary.



 



    (k) The Issuer may require payment of a sum sufficient to
    pay all taxes, assessments or other governmental charges in
    connection with any transfer or exchange pursuant to this
    Section 2.7.



 



    (l) All Notes issued upon any transfer or exchange pursuant
    to the terms of this Indenture will evidence the same debt and
    will be entitled to the same benefits under this Indenture as
    the Notes surrendered upon such transfer or exchange.



 



    (m) Holders of Notes (or holders of interests therein)
    initially offered or sold in the United States to
    “Qualified Institutional Buyers” as defined in
    Rule 144A under the Securities Act pursuant to such rule
    and prospective purchasers designated by such Holders (or
    holders of interests therein) will have the right to obtain from
    the Issuer upon request by such Holders (or holders of interests
    therein) or prospective purchasers, during any period in which
    the Issuer is not subject to Section 13 or 15(d) of the
    Exchange Act, or not exempt from reporting pursuant to
    Rule 12g3-2(b)
    under the Exchange Act, the information required by paragraph
    d(4)(i) of Rule 144A in connection with any transfer or
    proposed transfer of such Notes.



 



    Section 2.8  Replacement
    Notes.  If a mutilated Definitive Note is
    surrendered to the Registrar, if a mutilated Global Note is
    surrendered to the Issuer or if the Holder of a Note claims that
    such Note has been lost, destroyed or wrongfully taken, the
    Issuer shall issue and the Trustee shall authenticate a
    replacement Note in such form as the Note being replaced in the
    manner specified in this Section 2.8. If required by the
    Trustee, the Registrar or the Issuer, such Holder must provide
    an indemnity bond or other indemnity, sufficient in the judgment
    of the Issuer, the Registrar and the Trustee, to protect the
    Issuer, the Registrar, the Trustee and any Agent from any loss
    which any of them may suffer if a Note is replaced. The Issuer
    may charge such Holder for its reasonable out of-pocket expenses
    in replacing a Note, including reasonable fees and expenses of
    counsel. Every replacement Note is an additional obligation of
    the Issuer. The provisions of this Section 2.8 are
    exclusive and shall preclude (to the extent lawful) all other
    rights and remedies with respect to the replacement of
    mutilated, destroyed, lost, stolen or taken Notes.



 



    Section 2.9  Outstanding
    Notes.  Notes outstanding at any time are all
    the Notes that have been authenticated by the Trustee except
    those canceled by it, those delivered to it for cancellation,
    those reductions in the Global Note effected in accordance with
    the provisions hereof and those described in this
    Section 2.9 as not outstanding. Subject to
    Section 2.10, a Note does not cease to be outstanding
    because the Issuer or any of its Affiliates holds the Note.



 



    If a Note is replaced pursuant to Section 2.8 (other than a
    mutilated Note surrendered for replacement), it ceases to be
    outstanding unless the Trustee receives proof satisfactory to
    it, and upon which it shall be entitled to rely




    

    21








 






    in accordance with Section 7.1(a), that the replaced Note
    is held by a bona fide purchaser. A mutilated Note ceases
    to be outstanding upon surrender of such Note and replacement
    thereof pursuant to Section 2.8.



 



    If the principal amount of any Note is considered paid under
    Section 4.1 hereof, it ceases to be outstanding and
    interest and Additional Amounts, if any, on it cease to accrue.



 



    If on a Redemption Date or the Maturity Date the Paying
    Agent holds cash sufficient to pay all of the principal and
    interest due on the Notes payable on that date, then on and
    after that date such Notes cease to be outstanding and interest
    and Additional Amounts, if any, on such Notes cease to accrue.



 



    Section 2.10  Treasury
    Notes.  In determining whether the Holders of
    the required principal amount of Notes have concurred in any
    direction, waiver or consent, Notes owned by the Issuer, the
    Guarantors or any of their Affiliates shall be disregarded,
    except that, for the purposes of determining whether the Trustee
    shall be protected in relying on any such direction, waiver or
    consent, only Notes that a Trust Officer actually knows are
    so owned shall be disregarded and the Trustee assumes no
    liability in relation to any other Notes.



 



    The Issuer shall notify the Trustee, in writing, when it or any
    Guarantor or any of their Affiliates repurchases or otherwise
    acquires Notes, of the aggregate principal amount of such Notes
    so repurchased or otherwise acquired. The Trustee may require an
    Officers’ Certificate, which shall promptly be provided
    upon receipt by the appropriate Responsible Officers of the
    requisite information, listing Notes owned by the Issuer, the
    Guarantors a Subsidiary of the Issuer or the Guarantors or an
    Affiliate of the Issuer or the Guarantors.



 



    Section 2.11  Temporary
    Notes.  Until permanent Definitive Notes are
    ready for delivery, the Issuer may prepare and the Trustee shall
    authenticate temporary Definitive Notes upon receipt of an
    Issuer Order pursuant to Section 2.2. The Officers’
    Certificate shall specify the amount of temporary Definitive
    Notes to be authenticated and the date on which the temporary
    Definitive Notes are to be authenticated. Temporary Definitive
    Notes shall be substantially in the form of permanent Definitive
    Notes but may have variations that the Issuer considers
    appropriate for temporary Definitive Notes. Without unreasonable
    delay, the Issuer shall prepare and the Trustee shall
    authenticate upon receipt of an Issuer Order pursuant to
    Section 2.2 permanent Definitive Notes in exchange for
    temporary Definitive Notes.



 



    Section 2.12  Cancellation.  The
    Issuer at any time may deliver Notes to the Trustee for
    cancellation. The Registrar and the Paying Agent shall promptly
    forward to the Trustee any Notes surrendered to them for
    transfer, exchange or payment. The Trustee or, at the direction
    of the Trustee, the Registrar or the Paying Agent, and no one
    else, shall cancel and, at the written direction of the Issuer,
    shall dispose of (subject to the record retention requirements
    of the Exchange Act) all Notes surrendered for transfer,
    exchange, payment or cancellation. Upon completion of any
    disposal, the Trustee shall deliver a certificate of such
    disposal to the Issuer, unless the Issuer directs the Trustee in
    writing to deliver the cancelled Notes to the Issuer or the
    Company. Subject to Section 2.8, the Issuer may not issue
    new Notes to replace Notes that it has paid or delivered to the
    Trustee for cancellation. If the Issuer shall acquire any of the
    Notes, such acquisition shall not operate as a redemption or
    satisfaction of the Indebtedness represented by such Notes
    unless and until the same are surrendered to the Trustee for
    cancellation pursuant to this Section 2.12.



 



    Section 2.13  Defaulted
    Interest.  If the Issuer defaults in a payment
    of interest on the Notes, it shall pay the defaulted interest,
    plus (to the extent lawful) any interest payable on the
    defaulted interest, to the Holder thereof on a subsequent
    special record date, which date shall be the fifteenth day next
    preceding the date fixed by the Issuer for the payment of
    defaulted interest. The Issuer shall promptly notify the Trustee
    and Paying Agent in writing of the amount of defaulted interest
    proposed to be paid on each Note and the date of the proposed
    payment (a “Default Interest Payment Date”), and at
    the same time the Issuer shall deposit with the Trustee or
    Paying Agent an amount of money equal to the aggregate amount
    proposed to be paid in respect of such defaulted interest or
    shall make arrangements satisfactory to the Trustee or Paying
    Agent for such deposit prior to the date of the proposed
    payment, such money when deposited to be held in trust for the
    benefit of the Persons entitled to such defaulted interest as in
    this Section 2.13; provided, however, that in
    no event shall the Issuer deposit monies proposed to be paid in
    respect of defaulted interest later than
    10:00 a.m. New York City time on the proposed Default
    Interest Payment Date with respect to defaulted interest to be
    paid on the Note. At least 15 days before the subsequent
    special record date, the Issuer shall mail to each Holder, with
    a copy to the Trustee, a notice that states the subsequent
    special record date,




    

    22








 






    the payment date and the amount of defaulted interest, and
    interest payable on such defaulted interest, if any, to be paid.



 



    Section 2.14  CUSIP
    Number.  The Issuer in issuing the Notes may
    use a “CUSIP” number, and if it does so, the Trustee
    shall use the CUSIP number in notices of redemption or exchange
    as a convenience to Holders; provided that any such
    notice may state that no representation is made as to the
    correctness or accuracy of the CUSIP number printed in the
    notice or on the Notes and that reliance may be placed only on
    the other identification numbers printed on the Notes. The
    Issuer shall promptly notify the Trustee of any change in the
    CUSIP number.



 



    Section 2.15  Deposit
    of Moneys.  Prior to 10:00 a.m. New
    York City time on each interest payment date and Maturity Date,
    the Issuer shall have deposited with the Trustee or its
    designated Paying Agent (which shall be the Paying Agent or its
    successor unless otherwise notified to the Issuer by the
    Trustee) in immediately available funds money sufficient to make
    cash payments, if any, due on such interest payment date or
    Maturity Date, as the case may be, on all Notes then
    outstanding. Such payments shall be made by the Issuer in a
    timely manner which permits the Paying Agent to remit payment to
    the Holders on such interest payment date or Maturity Date, as
    the case may be. The Issuer shall, prior to
    10:00 a.m. New York City time on the second Business
    Day prior to the date on which the Paying Agent is to receive
    payment, procure that the bank effecting payment for it confirms
    by tested telex or SWIFT MT100 message to the Paying Agent that
    an irrevocable payment instruction has been given. Promptly upon
    receipt of such payment, the Paying Agent shall confirm by the
    medium chosen by the Paying Agent to the Issuer the receipt of
    such payment.



 



    Section 2.16  Certain
    Matters Relating to Global Notes.  Members of
    or participants in the DTC (“Agent Members”) shall
    have no rights under this Indenture or any Global Note with
    respect to any Global Note held on their behalf by the DTC or
    its nominee, and the DTC or its nominee may be treated by the
    Issuer, the Guarantors, the Trustee, the Paying Agent, the
    Registrar and any agent of the Issuer or the Guarantors as the
    absolute owner of the Global Note for all purposes whatsoever.
    Notwithstanding the foregoing, nothing herein shall prevent the
    Issuer, the Guarantors, the Trustee or any agent of the Issuer
    or the Guarantors from giving effect to any written
    certification, proxy or other authorization furnished by the DTC
    or its nominee or impair, as between the DTC and its Agent
    Members, the operation of customary practices governing the
    exercise of the rights of a Holder of any Note.



 



    (a) The Holder of any Global Note may grant proxies and
    otherwise authorize any Person, including DTC and its Agent
    Members and Persons that may hold interests through Agent
    Members, to take any action which a Holder is entitled to take
    under this Indenture or the Notes.



 



    Section 2.17  Record
    Date.  Unless otherwise set forth in this
    Indenture, the record date for purposes of determining the
    identity of Holders entitled to vote or consent to any action by
    vote or consent authorized or permitted under this Indenture
    shall be determined as provided for in TIA § 316(c).



 




    ARTICLE III

    



 




    REDEMPTION
    



 



    Section 3.1  Optional
    Redemption.  The Issuer may redeem all or,
    from time to time, a part of the Notes, at its option, at a
    redemption price equal to 100% of the principal amount of the
    Notes plus accrued interest to the redemption date, plus the
    excess of:



 



    (a) as determined by the calculation agent (which shall
    initially be the Trustee), the sum of the present values of the
    remaining scheduled payments of principal and interest on the
    Notes being redeemed not including any portion of such payment
    of interest accrued on the date of redemption, from the
    redemption date to the maturity date, discounted to the
    redemption date on a semi-annual basis (assuming a
    360-day year
    consisting of twelve
    30-day
    months) at the Treasury Rate plus 50 basis points; over



 



    (b) 100% of the principal amount of the Notes being
    redeemed.



 



    The Company shall certify to the Trustee the applicable Treasury
    Rate at the time of any such redemption.



 



    Section 3.2  Notices
    to Trustee.  If the Issuer elects to redeem
    Notes pursuant to Paragraphs 8 or 9 of such Notes, it shall
    notify the Trustee and the Paying Agent in writing of the
    Redemption Date and the principal amount




    

    23








 






    of Notes to be redeemed at least 15 days prior to the
    giving of the notice contemplated by Section 3.4 (or such
    shorter period as the Trustee in its sole discretion shall
    determine). The Issuer shall give notice of redemption as
    required under the relevant paragraph of the Notes pursuant to
    which such Notes are being redeemed.



 



    Section 3.3  Selection
    of Notes To Be Redeemed.  If less than all of
    the Notes are to be redeemed at any time, selection of such
    Notes for redemption will be made by the Trustee in compliance
    with the requirements of the principal securities exchange, if
    any, on which such Notes are listed,
    and/or in
    compliance with the requirements of the DTC, or if such Notes
    are not so listed, by lot, on a pro rata basis, or by
    such other method as the Trustee in its sole discretion shall
    deem fair and appropriate (and in such manner as complies with
    applicable legal and exchange requirements); provided,
    however, that no Note of $75,000 in aggregate principal
    amount or less shall be redeemed in part. If any Note is to be
    redeemed in part only, the Trustee shall notify the Issuer
    promptly of the portion of the principal amount thereof to be
    redeemed. A new Note in principal amount equal to the unredeemed
    portion thereof will be issued and delivered to the Trustee, or
    in the case of Definitive Notes, issued in the name of the
    Holder thereof upon cancellation of the original Note. The
    selections made by the Trustee pursuant to this Section 3.3
    shall always be subject to Section 7.2(d).



 



    Section 3.4  Notice
    of Redemption.  At least 30 days but not
    more than 60 days before a Redemption Date or a Tax
    Redemption Date, as applicable, the Issuer shall, so long
    as the Notes are in global form, publish in a leading newspaper
    having a general circulation in New York (which is expected to
    be The Wall Street Journal) (and, if and so long as the
    Notes are listed on the Luxembourg Stock Exchange and the rules
    of such stock exchange shall so require, a newspaper having a
    general circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and notify the Holders, the Trustee
    and the Luxembourg Stock Exchange, if applicable, or in the case
    of Definitive Notes, in addition to such publication, mail to
    Holders (with a copy to the Trustee) by first-class mail,
    postage prepaid, at their respective addresses as they appear on
    the registration books of the Registrar. At the Issuer’s
    request made at least 45 days before the
    Redemption Date or a Tax Redemption Date, as
    applicable (or such shorter period as the Trustee in its sole
    discretion shall determine), the Paying Agent shall give the
    notice of redemption in the Issuer’s name and at the
    Issuer’s expense; provided, however, that the
    Issuer shall deliver to the Trustee (in advance) an
    Officers’ Certificate requesting that the Trustee give such
    notice and setting forth in full the information to be stated in
    such notice as provided in the following items. Each notice for
    redemption shall identify the Notes to be redeemed and shall
    state:



 



    (a) the Redemption Date or the Tax
    Redemption Date, as applicable;



 



    (b) the Redemption Prices and the amount of accrued
    and unpaid interest, if any, and Additional Amounts, if any, to
    be paid (subject to the right of Holders of record on the
    relevant Record Date to receive interest and Additional Amounts,
    if any, due on the relevant interest payment date);



 



    (c) the name and address of the designated Paying Agent;



 



    (d) that Notes called for redemption must be surrendered to
    the designated Paying Agent to collect the Redemption Price
    plus accrued and unpaid interest, if any, and Additional
    Amounts, if any;



 



    (e) that, unless the Issuer defaults in making the
    redemption payment pursuant to the terms of this Indenture,
    interest and Additional Amounts, if any, on Notes called for
    redemption cease to accrue on and after the Redemption Date
    or the Tax Redemption Date, as applicable, and the only
    remaining right of the Holders of such Notes is to receive
    payment of the Redemption Price upon surrender to the
    Paying Agent of the Notes redeemed;



 



    (f) (i) if any Global Note is being redeemed in part,
    the portion of the principal amount of such Note to be redeemed
    and that, after the Redemption Date, interest and
    Additional Amounts, if any, shall cease to accrue on the portion
    called for redemption, and upon surrender of such Global Note
    (if applicable), the Global Note with a notation on Schedule A
    thereof adjusting the principal amount thereof to be equal to
    the unredeemed portion, will be returned and (ii) if any
    Definitive Note is being redeemed in part, the portion of the
    principal amount of such Note to be redeemed, and that, after
    the Redemption Date, upon surrender of such Definitive
    Note, a new Definitive Note or Notes in aggregate principal
    amount equal to the unredeemed portion thereof will be issued in
    the name of the Holder thereof, upon cancellation of the
    original Note;




    

    24








 






    (g) if fewer than all the Notes are to be redeemed, the
    identification of the particular Notes (or portion thereof) to
    be redeemed, as well as the aggregate principal amount of Notes
    to be redeemed and the aggregate principal amount of Notes to be
    outstanding after such partial redemption;



 



    (h) the paragraph of the Notes pursuant to which the Notes
    are to be redeemed; and



 



    (i) the CUSIP number, and that no representation is made as
    to the correctness or accuracy of the CUSIP number, if any,
    listed in such notice or printed on the Notes.



 



    Prior to the giving of any notice of redemption pursuant to
    Paragraph 9 of the Notes, the Issuer will deliver to the
    Trustee (a) an Officers’ Certificate of the Issuer
    stating that the Issuer is entitled to effect such redemption
    and setting forth a statement of facts showing that the
    conditions precedent to the right of the Issuer so to redeem
    have occurred and (b) an Opinion of Counsel qualified under
    the laws of the relevant jurisdiction to the effect that the
    Issuer has or will become obligated to pay such Additional
    Amounts as a result of a change in Tax law, and that the Issuer
    cannot avoid such obligation by taking reasonable measures
    available to it.



 



    Section 3.5  Effect
    of Notice of Redemption.  Once notice of
    redemption is given in accordance with Section 3.4, Notes
    called for redemption become due and payable on the
    Redemption Date or the Tax Redemption Date, as
    applicable, and at the Redemption Price plus accrued and
    unpaid interest, if any, and Additional Amounts, if any. Upon
    surrender to the Trustee or Paying Agent, such Notes called for
    redemption shall be paid at the Redemption Price (which
    shall include accrued and unpaid interest thereon, if any, and
    Additional Amounts, if any, to the Redemption Date or Tax
    Redemption Date, as applicable), but installments of
    interest, the maturity of which is on or prior to the
    Redemption Date or the Tax Redemption Date, as
    applicable, shall be payable to Holders of record at the close
    of business on the relevant Record Dates.



 



    Section 3.6  Deposit
    of Redemption Price.  Prior to
    10:00 a.m. New York City time on the
    Redemption Date or the Tax Redemption Date, as
    applicable, the Issuer shall deposit with the Trustee or its
    designated Paying Agent (which shall be the Paying Agent or its
    successor unless otherwise notified to the Issuer by the
    Trustee) cash sufficient to pay the Redemption Price plus
    accrued and unpaid interest (subject to, as provided in the
    Notes, the right of Holders to receive interest on the relevant
    interest payment date), if any, and Additional Amounts, if any,
    of all Notes to be redeemed on that date other than Notes or
    portion of Notes called for redemption that have been delivered
    by the Issuer to the Trustee for cancellation. The designated
    Paying Agent shall promptly return to the Issuer any cash so
    deposited which is not required for that purpose upon the
    written request of the Issuer. The Issuer shall, prior to
    10:00 a.m. New York City time on the second Business
    Day prior to the date on which the designated Paying Agent is to
    receive payment, procure that the bank effecting payment for it
    confirms by tested telex or SWIFT MT100 message to the Paying
    Agent that an irrevocable payment instruction has been given.
    Promptly upon receipt of such payment the Paying Agent shall
    confirm by the medium chosen by the Paying Agent to the Issuer
    the receipt of such payment.



 



    If the Issuer complies with the preceding paragraph, then,
    unless the Issuer defaults in the payment of such
    Redemption Price plus accrued and unpaid interest, if any,
    and Additional Amounts, if any, interest and Additional Amounts
    on the Notes to be redeemed will cease to accrue on and after
    the applicable Redemption Date or Tax Redemption Date,
    whether or not such Notes are presented for payment. With
    respect to Definitive Notes, if a Definitive Note is redeemed on
    or after an interest Record Date but on or prior to the related
    interest payment date, then any accrued and unpaid interest, if
    any, and Additional Amounts, if any, shall be paid to the Person
    in whose name such Note was registered at the close of business
    on such Record Date. If any Note called for redemption shall not
    be so paid upon surrender for redemption because of the failure
    of the Issuer to comply with the preceding paragraph, interest,
    and Additional Amounts, if any, shall be paid on the unpaid
    principal, from the Redemption Date or the Tax
    Redemption Date, as applicable, until such principal is
    paid, and to the extent lawful on any interest not paid on such
    unpaid principal, in each case at the rate provided in the Notes
    and in Section 4.1.



 



    Section 3.7  Notes
    Redeemed in Part.  Upon surrender and
    cancellation of a Definitive Note that is redeemed in part, the
    Company shall execute and the Trustee shall authenticate for the
    Holder (at the Issuer’s expense) a new Definitive Note
    equal in principal amount to the unredeemed portion of the
    Definitive Note surrendered and canceled; provided,
    however, that each such Definitive Note shall be in a
    principal amount at maturity of $75,000 or integral multiples of
    $1,000 in excess thereof. Upon surrender of a Global Note that
    is




    

    25








 






    redeemed in part, the Paying Agent shall promptly forward such
    Global Note to the Trustee who shall make a notation on
    Schedule A thereof to reduce the principal amount of such
    Global Note to an amount equal to the unredeemed portion of the
    Global Note surrendered; provided, however, that
    each such Global Note shall be in a principal amount at maturity
    of $75,000 or integral multiples of $1,000 in excess thereof.



 



    Section 3.8  Special
    Tax Redemption.  The Issuer is entitled to
    redeem the Notes, at its option, at any time in whole but not in
    part, upon not less than 30 nor more than 60 days’
    notice, at 100% of the principal amount of the Notes, plus
    accrued and unpaid interest (if any) to the date of redemption
    (subject to the right of holders of record on the relevant
    record date to receive interest due on the relevant interest
    payment date), in the event the Issuer has become or would
    become obligated to pay, on the next date on which any amount
    would be payable with respect to the Notes, any additional
    amounts as a result of:



 



    (a) a change in or an amendment to the laws (including any
    regulations promulgated under such laws) of (1) the United
    States, Germany, Luxembourg, the United Kingdom or any political
    subdivision or governmental authority thereof or therein having
    the power to tax, (2) any jurisdiction from or through
    which payment on the Notes is made, or any political subdivision
    or governmental authority thereof or therein having the power to
    tax or (3) any other jurisdiction in which the payor is
    organized or otherwise considered to be a resident for tax
    purposes, or any political subdivision or governmental authority
    thereof or therein having the power to tax; or



 



    (b) any change in or amendment to any official position
    regarding the application, administration or interpretation of
    such laws, treaties, regulations or rulings (including a
    holding, judgment or order by a court of competent jurisdiction);



 



    which change or amendment to such laws or official position is
    announced and becomes effective on or after the date of issuance
    of the Notes; provided that the Issuer determines, in its
    reasonable judgment, that the obligation to pay such additional
    amounts cannot be avoided by the use of reasonable measures
    available to it.



 



    Notice of any such redemption must be given within 270 days
    of the earlier of the announcement or effectiveness of any such
    change.



 




    ARTICLE IV

    



 




    COVENANTS
    



 



    Section 4.1  Payment
    of Notes.



 



    (a) The Issuer shall pay the principal, premium, if any,
    interest and Additional Amounts, if any, on the Notes in the
    manner provided in such Notes and this Indenture. An installment
    of principal of or interest, premium or Additional Amounts on
    the Notes shall be considered paid on the date it is due if the
    Trustee or Paying Agent holds prior to 10:00 a.m. New
    York City time on that date money deposited by the Issuer in
    immediately available funds and designated for, and sufficient
    to pay the installment in full and is not prohibited from paying
    such money to the Holders pursuant to the terms of this
    Indenture.



 



    (b) The Issuer shall pay, to the extent such payments are
    lawful, interest (including post-petition interest in any
    proceeding under any Bankruptcy Law) on overdue principal and on
    overdue installments of interest (without regard to any
    applicable grace periods), on any Additional Amounts, from time
    to time on demand at the rate borne by the Notes. Interest will
    be computed on the basis of a
    360-day year
    comprised of twelve
    30-day
    months.



 



    Section 4.2  Maintenance
    of Office or Agency.  The Issuer shall
    maintain the office or agency (which office may be an office of
    the Trustee or an affiliate of the Trustee, Registrar or
    co-Registrar) required under Section 2.3 where Notes may be
    surrendered for registration of transfer or for exchange and
    where notices and demands to or upon the Issuer in respect of
    the Notes and this Indenture may be served. The Issuer shall
    give prompt written notice to the Trustee of the location, and
    any change in the location, of such office or agency. If at any
    time the Issuer shall fail to maintain any such required office
    or agency or shall fail to furnish the Trustee with the address
    thereof, such presentations, surrenders, notices and demands may
    be made or served at the address of the Trustee set forth in
    Section 11.1. The Issuer hereby initially designates the
    office of the Trustee, acting through its office of 100 Wall




    

    26








 






    Street, Suite 1600, New York, New York 10005, as its office
    or agency as required under Section 2.3 hereof. If the
    Notes are listed on the Luxembourg Stock Exchange and the rules
    of such exchange so require, the Issuer will appoint Fortis
    Bank, or such other Person located in Luxembourg and reasonably
    acceptable to the Trustee (reasonableness to be determined
    objectively), as an additional paying and transfer agent.



 



    Section 4.3  Limitation
    on Incurrence of Indebtedness.



 



    (a) The Issuer and the Company shall not, and shall not
    permit any of their Subsidiaries to, Incur, directly or
    indirectly, any Indebtedness; provided, however,
    that the Company and any Subsidiary may Incur Indebtedness
    (and the Company and any Subsidiary may Incur Acquired
    Indebtedness) if on the date thereof:



 



    (1) the Consolidated Coverage Ratio of the Company is at
    least 2.0 to 1.0; and



 



    (2) no Default or Event of Default will have occurred and
    be continuing or would occur as a consequence of Incurring the
    Indebtedness.



 



    (b) The foregoing limitations contained in paragraph
    (a) do not apply to the Incurrence of any of the following
    Indebtedness:



 



    (1) Indebtedness Incurred under the Revolving Credit
    Facility in an aggregate amount not to exceed $1.0 billion;



 



    (2) Indebtedness in respect of Receivables Financings in an
    aggregate principal amount which, together with all other
    Indebtedness in respect of Receivables Financings outstanding on
    the date of such Incurrence (other than Indebtedness permitted
    by paragraph (a) or clause (3) of this paragraph (b)),
    does not exceed 85% of the sum of (1) the total amount of
    accounts receivables shown on the Company’s most recent
    consolidated quarterly balance sheet, plus (2) without
    duplication, the total amount of accounts receivable already
    subject to a Receivables Financing;



 



    (3) Indebtedness of the Company owed to and held by another
    Guarantor, Indebtedness of a Wholly Owned Subsidiary owed to and
    held by another Wholly Owned Subsidiary or Indebtedness of a
    Wholly Owned Subsidiary owing to and held by the Company;
    provided, however, that any subsequent issuance or
    transfer of any Capital Stock that results in any such
    Indebtedness being held by a Person other than the Company or
    another Wholly Owned Subsidiary or any subsequent transfer of
    such Indebtedness (other than to the Company or another Wholly
    Owned Subsidiary) shall be deemed, in each case, to constitute
    the Incurrence of such Indebtedness by the Company or the
    Subsidiary, as the case may be;



 



    (4) Indebtedness in respect of the Notes issued on the
    Closing Date, and the related Note Guarantees by the Company and
    the other Guarantors;



 



    (5) Capital Lease Obligations and Indebtedness Incurred, in
    each case, to provide all or a portion of the purchase price or
    cost of construction of an asset or, in the case of a Sale and
    Leaseback Transaction, to finance the value of such asset owned
    by the Company or a Subsidiary;



 



    (6) Indebtedness outstanding on the Closing Date after
    giving effect to the application of proceeds from the Notes;



 



    (7) Refinancing Indebtedness in respect of Indebtedness
    Incurred pursuant to paragraph (a) or pursuant to
    clause (4) or (6) of this paragraph (b);



 



    (8) Hedging Obligations entered into in the ordinary course
    of the business and not for speculative purposes as determined
    in good faith by the Company;



 



    (9) customer deposits and advance payments received from
    customers for goods purchased in the ordinary course of business;



 



    (10) Indebtedness arising under the Cash Management
    Arrangements; and



 



    (11) Indebtedness Incurred by the Company or a Subsidiary
    in an aggregate principal amount which, together with all other
    Indebtedness of the Company and its Subsidiaries outstanding on
    the date of such




    

    27








 






    Incurrence (other than Indebtedness permitted by paragraph
    (a) or clauses (1) through (10) of this paragraph
    (b)), does not exceed $900 million.



 



    (c) For purposes of determining compliance with the
    foregoing covenant:



 



    (1) in the event that an item of Indebtedness meets the
    criteria of more than one of the types of Indebtedness described
    above, the Company, in its sole discretion, will classify and
    from time to time may reclassify such item of Indebtedness and
    only be required to include the amount and type of such
    Indebtedness in one of the above clauses, provided that
    any Indebtedness outstanding on the Closing Date and
    Indebtedness incurred under clause (b)(5) above may not be
    reclassified to clause (a) above, and



 



    (2) an item of Indebtedness may be divided and classified,
    or reclassified, in more than one of the types of Indebtedness
    described above, provided that any Indebtedness
    outstanding on the Closing Date and Indebtedness incurred under
    clause (b)(5) above may not be reclassified to clause (a)
    above.



 



    (d) If during any period the Notes have achieved and
    continue to maintain Investment Grade Status and no Event of
    Default has occurred and is continuing (such period is referred
    to herein as an “Investment Grade Status Period”),
    then upon notice by the Company to the Trustee by the delivery
    of an Officers’ Certificate that it has achieved Investment
    Grade Status, this covenant will be suspended and will not
    during such period be applicable to the Company and its
    Subsidiaries and shall only again be applicable if such
    Investment Grade Status Period ends.



 



    No action taken during an Investment Grade Status Period or
    prior to an Investment Grade Status Period in compliance with
    this Section 4.3 will require reversal or constitute a
    default under the Notes in the event that this Section 4.3
    is subsequently reinstated or suspended, as the case may be.



 



    Section 4.4  Limitation
    on Liens.  The Issuer and the Company may not,
    and may not permit any Guarantor or any of their respective
    Subsidiaries to directly, or indirectly, create, Incur or suffer
    to exist any Lien (other than Permitted Liens) upon any of its
    property or assets (including Capital Stock), whether owned on
    the date hereof or acquired after that date, securing any
    Indebtedness, unless contemporaneously with (or prior to) the
    Incurrence of the Liens effective provision is made to secure
    the Indebtedness due under this Indenture and the Notes, equally
    and ratably with (or prior to in the case of Liens with respect
    to Subordinated Obligations) the Indebtedness secured by such
    Lien for so long as such Indebtedness is so secured.



 



    Section 4.5  Ownership
    of the Issuer.  The Company will continue to
    directly or indirectly maintain 100% ownership of the Capital
    Stock of the Issuer or any permitted successor of the Issuer,
    provided, that any permitted successor of the Company may
    succeed to the Company’s ownership of such Capital Stock.



 



    The Company will cause the Issuer or its successor to engage
    only in those activities that are necessary, convenient or
    incidental to issuing and selling the Notes and any additional
    Indebtedness permitted under Section 4.3 (including its
    Guarantee of the Credit Facility), and advancing or distributing
    the proceeds thereof to the Company and its Subsidiaries and
    performing its obligations relating to the Notes and any such
    additional Indebtedness, pursuant to the terms thereof and of
    this Indenture and any other applicable indenture.



 



    Section 4.6  Existence.  Except
    as permitted by Article V, the Company shall do or cause to
    be done all things necessary to preserve and keep in full force
    and effect the existence, rights (charter and statutory) and
    franchises of the Company, the Issuer and each other Guarantor;
    provided, however, that the Company shall not be
    required to preserve any such existence, right or franchise if
    the Board of Directors of the Company in good faith shall
    determine that the preservation thereof is no longer desirable
    in the conduct of the business of the Company and that the loss
    thereof at the time of such loss is not disadvantageous in any
    material respect to the Holders.



 



    Section 4.7  Maintenance
    of Properties.  Except as permitted by
    Article V, the Company shall cause all properties used or
    useful in the conduct of its business or the business of any
    Subsidiary of the Company to be maintained and kept in good
    condition, repair and working order and supplied with all
    necessary equipment and will cause to be made all necessary
    repairs, renewals, replacements, betterments and improvements
    thereof, all as in the judgment of the Company may be necessary
    so that the business carried on in connection therewith may be
    properly and advantageously conducted at all times;
    provided, however, that nothing in this Section
    shall prevent the Company from discontinuing the operation or
    maintenance of any of such properties if such discontinuance is,
    as determined by the Company, or its Responsible Officers, or
    any Subsidiary, or its Responsible Officers, having




    

    28








 






    managerial responsibility for any such property, in good faith,
    desirable in the conduct of its business or the business of any
    Subsidiary and not disadvantageous in any material respect to
    the Holders.



 



    Section 4.8  Payment
    of Taxes and Other Claims.  The Company and
    the Guarantors will pay or discharge or cause to be paid or
    discharged, before the same shall become delinquent,
    (a) all material taxes, assessments and governmental
    charges levied or imposed upon the Company or any of its
    Subsidiaries or upon the income, profits or property of the
    Company or any of its Subsidiaries (including satisfying any
    withholding tax obligations), and (b) all material lawful
    claims for labor, materials and supplies which, if unpaid, might
    by law become a Lien upon the property of the Company or the
    Guarantors or any of their Subsidiaries; provided, however,
    that the Company or the Guarantors shall not be required to
    pay or discharge or cause to be paid or discharged any such tax,
    assessment, charge or claim whose amount, applicability or
    validity is being contested in good faith by appropriate
    proceedings and for which adequate reserves are maintained in
    accordance with Accounting Principles.



 



    Section 4.9  Maintenance
    of Insurance.  The Company shall, and shall
    cause its Subsidiaries to, keep at all times all of their
    material properties which are of an insurable nature insured
    against loss or damage pursuant to self-insurance arrangements
    with insurers believed by the Company to be responsible to the
    extent that property of similar character is usually so insured
    by corporations similarly situated and owning like properties in
    accordance with good business practice. The Company shall, and
    shall cause its Subsidiaries to, use the proceeds from any such
    insurance policy to repair, replace or otherwise restore the
    property to which such proceeds relate, except to the extent
    that a different use of such proceeds is, as determined by the
    Company, or any Subsidiary having managerial responsibility for
    any such property, in good faith, desirable in the conduct of
    its business or the business of any Subsidiary and not
    disadvantageous in any material respect to the Holders.



 



    Section 4.10  Reports.  For
    so long as any Notes are outstanding, the Company will provide
    the Trustee with:



 



    (1) copies of the annual reports and of the information,
    documents and other reports, and such summaries thereof, as may
    be required by the TIA at the times and in the manner provided
    by the TIA;



 



    (2) its annual financial statements and related notes
    thereto for the most recent two fiscal years prepared in
    accordance with U.S. GAAP (or IFRS or any other
    internationally generally acceptable accounting standard in the
    event the Company is required by applicable law to prepare its
    financial statements in accordance with IFRS or such other
    standard or is permitted and elects to do so, with appropriate
    reconciliation to U.S. GAAP, unless not then required under
    the rules of the SEC) and including segment data, together with
    an audit report thereon, together with a discussion of the
    “Operating Results” and “Liquidity” for such
    fiscal years prepared in a manner substantially consistent with
    the “Operating and Financial Review and Prospects”
    required by
    Form 20-F
    under the Exchange Act (or any replacement or successor form)
    appearing herein and a “Business Summary of the Financial
    Year” and discussion of “Business Segments”
    provided in a manner consistent with its annual report, a
    description of “Related Party Transactions,” and a
    description of Indebtedness, within 90 days of the end of
    each fiscal year; and



 



    (3) quarterly financial information as of and for the
    period from the beginning of each year to the close of each
    quarterly period (other than the fourth quarter), together with
    comparable information for the corresponding period of the
    preceding year, and a summary “Management’s Discussion
    and Analysis of Financial Condition and Results of
    Operations” to the extent and in the form required under
    the Exchange Act providing a brief discussion of the results of
    operations for the period within 45 days following the end
    of the fiscal quarter.



 



    The Company shall also comply with the other provisions of
    Section 314(a) of the TIA. In addition, so long as the
    Notes remain outstanding and during any period when the Issuer
    or the Company is not subject to Section 13 or 15(d) of the
    Exchange Act other than by virtue of the exemption therefrom
    pursuant to
    Rule 12g3-2(b),
    the Company will furnish to any Holder or beneficial owner of
    Notes initially offered and sold in the United States to
    “qualified institutional buyers” as defined in
    Rule 144A under the Securities Act pursuant to such rule
    and any prospective purchaser in the United States designated by
    such Holder or beneficial owner, upon request, any information
    required to be delivered pursuant to Rule 144A(d)(4) under
    the Securities Act.




    

    29








 






    If and so long as the Notes are listed on the Luxembourg Stock
    Exchange, copies of such reports shall also be available at the
    specified office of the Paying Agent and transfer agent in
    Luxembourg.



 



    Deliveries of such reports, information and documents to the
    Trustee is for informational purposes only and the
    Trustee’s receipt of such shall not constitute constructive
    notice of any information contained therein or determinable from
    information contained therein, including the Issuer’s, the
    Company’s or any Guarantor’s compliance with any of
    its covenants hereunder (as to which the Trustee is entitled to
    rely exclusively on Officers’ Certificates). The Trustee
    shall have no obligation to review such reports to determine if
    the information required by this Section 4.10 is contained
    therein.



 



    Section 4.11  Change
    of Control.  Each Holder of the Notes, upon
    the occurrence of a Change of Control Triggering Event, will
    have the right to require that the Issuer repurchase such
    Holder’s Notes, at a purchase price in cash equal to 101%
    of the principal amount thereof plus accrued and unpaid
    interest, if any, to the date of purchase (subject to the right
    of Holders of record on the relevant record date to receive
    interest due on the relevant interest payment date).



 



    Within 30 days following a Change of Control Triggering
    Event, the Issuer will mail a notice to each Holder with a copy
    to the Trustee stating:



 



    (1) that a Change of Control Triggering Event has occurred
    and that such Holder has the right to require the Issuer to
    purchase such Holder’s Notes, at a purchase price in cash
    equal to 101% of the principal amount thereof plus accrued and
    unpaid interest, if any, to the date of purchase (subject to the
    right of Holders of record on the relevant record date to
    receive interest on the relevant interest payment date);



 



    (2) the circumstances and relevant facts regarding such
    Change of Control Triggering Event (including information with
    respect to pro forma historical income, cash flow and
    capitalization after giving effect to such Change of Control
    Triggering Event);



 



    (3) the repurchase date (which shall be no earlier than
    30 days nor later than 60 days from the date such
    notice is mailed);



 



    (4) that each Note will be subject to repurchase only in
    the amount of $75,000 or integral multiples of $1,000 in excess
    thereof; and



 



    (5) the instructions determined by the Issuer, consistent
    with the covenant described hereunder, that a Holder must follow
    in order to have its Notes purchased.



 



    (6) that any Note not tendered will continue to accrue
    interest;



 



    (7) that, unless the Issuer defaults in the payment of the
    Change of Control purchase price, any Notes accepted for payment
    shall cease to accrue interest after the repurchase date;



 



    (8) that Holders accepting the offer to have their Notes
    repurchased pursuant to a change of control offer will be
    required to surrender the Notes to the Paying Agent or any other
    Agent specified in the notice at the address specified in the
    notice prior to the close of business on the Business Day
    preceding the repurchase date;



 



    (9) that Holders whose Notes are being purchased only in
    part will be issued new Notes equal in principal amount to the
    unpurchased portion of the Notes surrendered;



 



    (10) any other procedures that a holder must follow to
    accept a change of control offer or effect withdrawal of such
    acceptance; and



 



    (11) the name and address of the Paying Agent.



 



    On the repurchase date, the Issuer shall, to the extent lawful:



 



    (1) accept for payment Notes or portions thereof validly
    tendered pursuant to the change of control offer;



 



    (2) deposit with the Paying Agent money sufficient to pay
    the Change of Control purchase price in respect of all Notes or
    portions thereof so tendered; and




    

    30








 






    (3) deliver or cause to be delivered to the Trustee Notes
    so accepted together with an Officers’ Certificate stating
    the Notes or portions thereof tendered to the Issuer.



 



    The Paying Agent shall promptly mail to each Holder of Notes so
    accepted payment in an amount equal to the purchase price for
    such Notes, and the Issuer shall execute and issue, and the
    Trustee shall promptly authenticate and mail to such Holder, a
    new Note equal in principal amount to any unpurchased portion of
    the Notes surrendered; provided that each such new Note shall be
    issued in an original principal amount in denominations of
    $75,000 and integral multiples of $1,000 in excess thereof.



 



    The Issuer will comply, to the extent applicable, with the
    requirements of Section 14(e) of the Exchange Act and any
    other securities laws or regulations in connection with the
    repurchase of Notes pursuant to this Section 4.11. To the
    extent that the provisions of any securities laws or regulations
    or applicable listing requirements conflict with the provisions
    of this Section 4.11, the Issuer will comply with the
    applicable securities laws and regulations and will not be
    deemed to have breached its obligations under this
    Section 4.11 by virtue thereof.



 



    Section 4.12  Additional
    Amounts.  At least 30 days prior to each
    date on which payment of principal, premium, if any, or interest
    on the Notes is to be made (unless such obligation to pay
    Additional Amounts arises shortly before or after the
    30th day prior to such date, in which case it shall be
    promptly thereafter), if the Issuer will be obligated to pay
    Additional Amounts pursuant to Paragraph 2 of the Notes
    (the “Additional Amounts”) with respect to any such
    payment, the Issuer will promptly furnish the Trustee and the
    Paying Agent, if other than the Trustee, with an Officers’
    Certificate stating that such Additional Amounts will be
    payable, the amounts so payable and will set forth such other
    information necessary to enable the Trustee or the Paying Agent
    to pay such Additional Amounts to the Holders on the payment
    date. The Issuer will pay to the Trustee or the Paying Agent
    such Additional Amounts and, if paid to a Paying Agent other
    than the Trustee, shall promptly provide the Trustee with
    documentation evidencing the payment of such Additional Amounts.
    Copies of such documentation shall be made available to the
    Holders upon request. The Issuer shall indemnify the Trustee and
    the Paying Agent for, and hold them harmless against, any loss,
    liability or expense incurred without negligence or willful
    misconduct on their part arising out of or in connection with
    actions taken or omitted by any of them in reliance on any
    Officers’ Certificate furnished to them pursuant to this
    Section 4.12.



 



    The Issuer will (i) make any required withholding or
    deduction and (ii) remit the full amount deducted or
    withheld to the Relevant Taxing Jurisdiction in accordance with
    applicable law. The Issuer will use all reasonable efforts to
    obtain certified copies of tax receipts evidencing the payment
    of any Taxes so deducted or withheld from each Relevant Taxing
    Jurisdiction imposing such Taxes and will provide such certified
    copy to the Trustee.



 



    If the Issuer or the Guarantors conduct business in any
    jurisdiction (an “Additional Taxing Jurisdiction”)
    other than a Relevant Taxing Jurisdiction and, as a result, are
    required by the law of such Additional Taxing Jurisdiction to
    deduct or withhold any amount on account of taxes imposed by
    such Additional Taxing Jurisdiction from payments under the
    Notes which would not have been required to be so deducted or
    withheld but for such conduct of business in such Additional
    Taxing Jurisdiction, the Additional Amounts provision described
    above shall be considered to apply to such Holders as if
    references in such provision to “Taxes” included taxes
    imposed by way of deduction or withholding by any such
    Additional Taxing Jurisdiction (or any political subdivision
    thereof or taxing authority therein).



 



    The Issuer will pay any present stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in Luxembourg (or any
    political subdivision thereof or therein) from the execution,
    delivery and registration of Notes upon original issuance and
    initial resale of the Notes or any other document or instrument
    referred to therein. If at any time the Issuer changes its place
    of organization to outside of Luxembourg or there is a new
    issuer organized outside of Luxembourg, the Issuer or new
    issuer, as applicable, will pay any stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in the jurisdiction in
    which the Issuer or new issuer is organized (or any political
    subdivision thereof or therein) and are payable by the Holders
    of the Notes in respect of the Notes or any other document or
    instrument referred to therein under any law, rule or regulation
    in effect at the time of such change, or in connection with, the
    enforcement of the Notes or any such other document or
    instrument.




    

    31








 






    The foregoing obligations of this Section 4.12 will survive
    any termination, defeasance or discharge of this Indenture and
    will apply mutatis mutandis to any successor Person to
    the Issuer or the Guarantors.



 



    Whenever in this Indenture or in the Notes there is mentioned,
    in any context, the payment of principal, premium or interest,
    if any, or any other amount payable under or with respect to any
    Note, such mention shall be deemed to include mention of the
    payment of Additional Amounts to the extent that, in such
    context, Additional Amounts are, were or would be payable in
    respect thereof.



 



    Section 4.13  Compliance
    Certificate; Notice of Default.  The Company
    shall deliver to the Trustee, within 90 days after the end
    of each fiscal year an Officers’ Certificate stating
    whether or not to the best knowledge of the signor thereof, the
    Issuer and the Guarantors, as the case may be, have complied
    with all conditions and covenants under this Indenture, whether
    a Default or an Event of Default has occurred during such
    period, and, if a Default or an Event of Default has occurred
    during such period, specifying all such Events of Default and
    the nature thereof of which such Responsible Officer has
    knowledge. Upon becoming aware of, and as of such time that the
    Issuer should reasonably have become aware of, a Default, the
    Company also shall deliver to the Trustee, within 30 days
    thereafter, written notice of any events which would constitute
    a Default, their status and what action the Issuer is taking or
    proposes to take in respect thereof.



 



    Section 4.14  Limitation
    on Sale and Leaseback Transactions.  The
    Issuer and the Company may not, and may not permit any Guarantor
    or any Subsidiary to, enter into any Sale and Leaseback
    Transaction unless:



 



    (1) the Issuer or such Guarantor or Subsidiary, as the case
    may be, receives consideration at the time of such Sale and
    Leaseback Transaction at least equal to the fair market value
    (as evidenced by an Officers’ Certificate of a Responsible
    Officer, or, if the value exceeds $25 million, a resolution
    of the Board of Directors of the Issuer or such Guarantor or
    Subsidiary), of the property subject to such transaction;



 



    (2) the Issuer or such Guarantor or Subsidiary, as the case
    may be, could have created a Lien on the property subject to
    such Sale and Leaseback Transaction if such transaction was
    financed with Indebtedness without securing the Notes pursuant
    to Section 4.4; and



 



    (3) the Issuer or such Guarantor or Subsidiary, as the case
    may be, can Incur an amount of Indebtedness equal to the
    Attributable Debt in respect of such Sale and Leaseback
    Transaction.



 




    ARTICLE V

    



 




    SUCCESSOR
    ISSUER OR GUARANTOR
    



 



    Section 5.1  Limitation
    on Mergers and Sales of Assets.  The Issuer
    and the Company may not, and may not permit any other Guarantor
    to consolidate or merge with or into (whether or not the Issuer
    or such Guarantor is the Surviving Person), or sell, assign,
    transfer, lease, convey or otherwise dispose of all or
    substantially all of its properties and assets in one or more
    related transactions, to another Person unless:



 



    (1) the Surviving Person is an entity organized and
    existing under the laws of Germany, the United Kingdom, any
    other member state of the European Union (as of
    December 31, 2003), Luxembourg, Switzerland, the United
    States of America, or any State thereof or the District of
    Columbia, or the jurisdiction of formation of the Issuer or any
    Guarantor; or, if the Surviving Person is an entity organized
    and existing under the laws of any other jurisdiction, the
    Issuer delivers to the Trustee an Opinion of Counsel to the
    effect that the rights of the Holders of the Notes, would not be
    affected adversely as a result of the law of the jurisdiction of
    organization of the Surviving Person, insofar as such law
    affects the ability of the Surviving Person to pay and perform
    its obligations and undertakings in connection with the Notes
    (in a transaction involving the Issuer) or its Note Guarantee or
    the ability of the Surviving Person to obligate itself to pay
    and perform such obligations and undertakings or the ability of
    the Holders to enforce such obligations and undertakings;



 



    (2) the Surviving Person (if other than the Issuer or a
    Guarantor) shall expressly assume, (A) in a transaction or
    series of transactions involving the Issuer, by a supplemental
    indenture in a form satisfactory to the Trustee, all of the
    obligations of the Issuer, (B) in a transaction or series
    of transactions involving the Company, by a supplemental
    indenture in a form satisfactory to the Trustee, all of the
    obligations of the




    

    32








 






    Company under the Indenture, or (C) in a transaction or
    series of transactions involving a Guarantor (including the
    Company), by a Guarantee Agreement, in a form satisfactory to
    the Trustee, all of the obligations of such Guarantor under its
    Note Guarantee;



 



    (3) at the time of and immediately after such transaction,
    no Default or Event of Default shall have occurred and be
    continuing; and



 



    (4) the Issuer or such Guarantor delivers to the Trustee an
    Officers’ Certificate and an Opinion of Counsel, each
    stating that such consolidation, merger, transfer, assignment,
    sale, lease or other disposition and such supplemental indenture
    and Guarantee Agreement, if any, comply with this Indenture.



 



    Section 5.2  Successor
    Entity Substituted.  Upon any consolidation or
    merger by the Issuer, the Company or any other Guarantor with or
    into any other Person, or any conveyance, transfer, sale,
    assignment, lease or other disposition by the Issuer, the
    Company or any other Guarantor in one or more transactions, of
    substantially all of its properties and assets as an entirety to
    any Person in accordance with Section 5.1, the Surviving
    Person shall succeed to, and be substituted for, and may
    exercise every right and power of, the Issuer or such Guarantor
    under this Indenture with the same effect as if such Surviving
    Person had been named as the Issuer or had been a Guarantor
    herein, and thereafter the Issuer or such Guarantor shall be
    discharged from all obligations and covenants hereunder and
    under the Notes.



 



    Such Surviving Person (if the successor of the Issuer) may cause
    to be signed, and may issue either in its own name or in the
    name of the Issuer, any or all of the Notes issuable hereunder
    which theretofore shall not have been signed by the Issuer and
    delivered to the Trustee; and, upon the order of such Surviving
    Person instead of the Issuer and subject to all the terms,
    conditions and limitations in this Indenture prescribed, the
    Trustee shall authenticate and shall deliver any Notes which
    previously shall have been signed and delivered by the
    Responsible Officers of the Issuer to the Trustee for
    authentication pursuant to such provisions and any Notes which
    such Surviving Person thereafter shall cause to be signed and
    delivered to the Trustee on its behalf for the purpose pursuant
    to such provisions. All the Notes so issued shall in all
    respects have the same legal rank and benefit under this
    Indenture as the Notes theretofore or thereafter issued in
    accordance with the terms of this Indenture as though all of
    such Notes had been issued at the date of the execution hereof.



 



    In case of any such consolidation, merger, sale, assignment,
    transfer, conveyance, lease, or other disposition such changes
    in phraseology and form may be made in the Notes thereafter to
    be issued as may be appropriate.



 



    Section 5.3  Substitution
    of the Issuer.  The Company, any other
    Guarantor or a Finance Subsidiary (a “Successor”) may
    assume the obligations of the Issuer under the Notes, by
    executing and delivering to the Trustee (a) a supplemental
    indenture which subjects such person to all of the provisions of
    the Indenture and (b) an opinion of counsel to the effect
    that such supplemental indenture has been duly authorized and
    executed by such Person, and constitutes the legal, valid,
    binding and enforceable obligation of such Person, subject to
    customary exceptions; provided that (i) the Successor is
    formed under the laws of the United States of America, or any
    State thereof or the District of Columbia, Germany, the United
    Kingdom or any other member state of the European Union as of
    December 31, 2003 and (ii) no Additional Amounts would
    be or become payable with respect to the Notes at the time of
    such assumption, or as result of any change in the laws of the
    jurisdiction of formation of such Successor that was reasonably
    foreseeable at such time. The Successor shall succeed to, and be
    substituted for, and may exercise every right and power of, the
    Issuer under the Indenture with the same effect as if it were
    the Issuer thereunder, and the former Issuer shall be discharged
    from all obligations and covenants under the Indenture and the
    Notes.



 




    ARTICLE VI

    



 




    DEFAULT AND
    REMEDIES
    



 



    Section 6.1  Events
    of Default.  Whenever used herein with respect
    to the Notes, “Event of Default” means any one of the
    following events which shall have occurred and be continuing:



 



    (1) failure for 30 days to pay interest on the Notes,
    including any Additional Amounts in respect thereof, when
    due; or




    

    33








 






    (2) failure to pay principal of or premium, if any, on the
    Notes when due, whether at maturity, upon redemption, by
    declaration or otherwise; or



 



    (3) failure to observe or perform any other covenant
    contained in this Indenture for 60 days after notice as
    provided in this Indenture; or



 



    (4) default under any mortgage, indenture or instrument
    under which there may be issued or by which there may be secured
    or evidenced any Indebtedness for money borrowed by the Company
    or any of its Subsidiaries (or the payment of which is
    guaranteed by the Company), whether such Indebtedness or
    Guarantee now exists or is Incurred after the Closing Date, if
    (A) such default results in the acceleration of such
    Indebtedness prior to its express maturity or will constitute a
    default in the payment of such Indebtedness and (B) the
    principal amount of any such Indebtedness that has been
    accelerated or not paid at maturity, when added to the aggregate
    principal amount of all other such Indebtedness, at such time,
    that has been accelerated or not paid at maturity, exceeds
    $100 million; or



 



    (5) any final judgment or judgments (not covered by
    insurance) which can no longer be appealed for the payment of
    money in excess of $100 million shall be rendered against
    the Issuer or the Company or any of its Subsidiaries and shall
    not be discharged for any period of 60 consecutive days during
    which a stay of enforcement shall not be in effect; or



 



    (6) any Note Guarantee shall cease to be in full force and
    effect in accordance with its terms for any reason except
    pursuant to the terms of this Indenture governing the release of
    Note Guarantees or the satisfaction in full of all the
    obligations thereunder or shall be declared invalid or
    unenforceable other than as contemplated by its terms, or any
    Guarantor shall repudiate, deny or disaffirm any of its
    obligations thereunder; or



 



    (7) the Company, the Guarantors, the Issuer or any of the
    Company’s Significant Subsidiaries pursuant to or within
    the meaning of any Bankruptcy Law:



 



    (a) commences negotiations with any one or more of its
    creditors with a view to the general readjustment or
    rescheduling of its indebtedness or makes a general assignment
    for the benefit of or a composition with its creditors or, for
    any of the reasons set out in
    Sections 17-19
    of the German Insolvency Code (Insolvenzordnung), files
    for insolvency (Antrag auf Eröffnung eines
    Insolvenzverfahrens) or the board of directors
    (Geschäftsführer) is required by law to file
    for insolvency, a creditor files for the opening of insolvency
    proceedings and such filing is not frivolous and not dismissed
    within a period of one month by the competent insolvency court,
    or the competent court takes any of the actions set out in
    Section 21 of the German Insolvenzordnung or a competent
    court institutes insolvency proceedings (Eröffnung des
    Insolvenzverfahrens) or denies a petition for commencement
    of insolvency proceeding by reason of insufficient assets,



 



    (b) commences a voluntary case,



 



    (c) consents to the entry of an order for relief against it
    in an involuntary case,



 



    (d) consents to the appointment of a custodian of it or for
    all or substantially all of its property,



 



    (e) makes a general assignment for the benefit of its
    creditors, or



 



    (f) takes any corporate action to authorize or effect any
    of the foregoing.



 



    A default under clause (3) of this paragraph will not
    constitute an Event of Default unless the Trustee or Holders of
    25% in principal amount of the outstanding Notes notify the
    Issuer and the Company of such default and such default is not
    cured within the time specified in clause (3).



 



    Section 6.2  Acceleration.  If
    an Event of Default (other than an Event of Default described in
    clause (7) of Section 6.1 hereof) occurs and is
    continuing, the Trustee by notice to the Company, or the Holders
    of at least 25% in aggregate principal amount of the outstanding
    Notes by notice to the Issuer, the Company and the Trustee, may,
    and the Trustee at the request of such Holders shall, declare
    the principal of, premium, if any, and accrued and unpaid
    interest, if any, and Additional Amounts, if any, on all the
    Notes to be due and payable. Upon such a declaration, such
    principal, premium, accrued and unpaid interest, and Additional
    Amounts, if any, will be due and payable




    

    34








 






    immediately. If an Event of Default described in clause (7)
    of section 6.1 above occurs and is continuing, the
    principal of, premium, if any, and accrued and unpaid interest
    on all the Notes will become and be immediately due and payable
    without any declaration or other act on the part of the Trustee
    or any Holders.



 



    Section 6.3  Other
    Remedies.  If an Event of Default of which the
    Trustee is aware occurs and is continuing, the Trustee may
    pursue any available remedy by proceeding at law or in equity to
    collect the payment of principal of or, premium, if any,
    interest, and Additional Amounts, if any, on the Notes or to
    enforce the performance of any provision of the Notes or this
    Indenture.



 



    Section 6.4  The
    Trustee May Enforce Claims Without Possession of
    Notes.  All rights of action and claims under
    this Indenture or the Notes may be prosecuted and enforced by
    the Trustee (without liability) without the possession of any of
    the Notes or the production thereof in any proceeding relating
    thereto.



 



    Section 6.5  Rights
    and Remedies Cumulative.  Except as otherwise
    provided with respect to the replacement or payment of
    mutilated, destroyed, lost or stolen Notes in Section 2.8,
    no right or remedy herein conferred upon or reserved to the
    Trustee or to the Holders of Notes is intended to be exclusive
    of any other right or remedy, and every right and remedy shall,
    to the extent permitted by law, be cumulative and in addition to
    every other right and remedy given hereunder or now or hereafter
    existing at law or in equity or otherwise. The assertion or
    employment of any right or remedy hereunder, or otherwise, shall
    not prevent the concurrent or subsequent assertion or employment
    of any other appropriate right or remedy.



 



    Section 6.6  Delay
    or Omission Not Waiver.  No delay or omission
    of the Trustee or of any Holder to exercise any right or remedy
    accruing upon any Event of Default shall impair any such right
    or remedy or constitute a waiver of any such Event of Default or
    an acquiescence therein. Every right and remedy given by the
    Indenture or by law to the Trustee or to the Holders of Notes
    may be exercised from time to time, and as often as may be
    deemed expedient, by the Trustee or by the Holders of Notes, in
    each case in accordance with the terms of this Indenture.



 



    Section 6.7  Waiver
    of Past Defaults.  Subject to
    Sections 2.10, 6.10 and 9.2, at any time after a
    declaration of acceleration with respect to the Notes as
    described in Section 6.2, the Holders of at least a
    majority in principal amount of the outstanding Notes by written
    notice to the Issuer and to the Trustee, may waive all past
    defaults (except with respect to nonpayment of principal,
    premium or interest) and rescind any such declaration of
    acceleration with respect to the Notes and its consequences if
    (i) the rescission would not conflict with any judgment or
    decree of a court of competent jurisdiction and (ii) all
    existing Events of Default, other than the nonpayment of the
    principal of, premium, if any, and interest on the Notes that
    have become due solely by such declaration of acceleration, have
    been cured or waived. Such waiver shall not excuse a continuing
    Event of Default in the payment of interest, premium, if any,
    principal or Additional Amounts, if any, on such Note held by a
    non-consenting Holder, or in respect of a covenant or a
    provision which cannot be amended or modified without the
    consent of each Holder affected thereby. The Issuer shall
    promptly deliver to the Trustee an Officers’ Certificate
    stating that the requisite percentage of Holders has consented
    to such waiver and attaching copies of such consents. When a
    Default or Event of Default is waived, it is cured and ceases.



 



    Section 6.8  Control
    by Majority.  Subject to Section 2.10,
    the Holders of not less than a majority in principal amount of
    the outstanding Notes may, by written notice to the Trustee,
    direct the time, method and place of conducting any proceeding
    for any remedy available to the Trustee or exercising any trust
    or power conferred on it. Subject to Section 7.1, however,
    the Trustee may refuse to follow any direction that conflicts
    with any law or this Indenture or that the Trustee determines is
    unduly prejudicial to the rights of another Holder of Notes, or
    that may involve the Trustee in personal liability;
    provided, however, that the Trustee may take any
    other action deemed proper by the Trustee which is not
    inconsistent with such direction. Prior to taking any action
    under this Indenture, the Trustee will be entitled to
    indemnification satisfactory to it in its sole discretion
    against all losses and expenses caused by taking or not taking
    such action in accordance with Section 7.7.



 



    Section 6.9  Limitation
    on Suits.  Subject to Section 6.10, no
    Holder of Notes may pursue any remedy with respect to this
    Indenture or the Notes unless:



 



    (1) such Holder has previously given the Trustee notice
    that an Event of Default is continuing;



 



    (2) Holders of at least 25% in principal amount of the
    outstanding Notes have requested the Trustee to pursue the
    remedy;




    

    35








 






    (3) such Holders have offered the Trustee reasonable
    security or indemnity satisfactory to the Trustee against any
    loss, liability or expense;



 



    (4) the Trustee has not complied with such request within
    60 days after the receipt of the request and the offer of
    satisfactory security or indemnity; and



 



    (5) the Holders of a majority in principal amount of the
    outstanding Notes have not given the Trustee a direction that,
    in the opinion of the Trustee, is inconsistent with such request
    within such
    60-day
    period.



 



    Section 6.10  Rights
    of Holders To Receive
    Payment.  Notwithstanding any other provision
    of this Indenture (including, without limitation,
    Section 8.9 hereof), the right of any Holder to receive
    payment of principal of, premium, if any, interest, and
    Additional Amounts, if any, on a Note, on or after the
    respective due dates expressed in such Note, or to bring suit
    for the enforcement of any such payment on or after such
    respective dates, shall not be impaired or affected without the
    consent of such Holder.



 



    Section 6.11  Collection
    Suit by Trustee.  If an Event of Default in
    payment of principal, premium, if any, interest and Additional
    Amounts, if any, specified in clause (1) or clause (2)
    of Section 6.1 occurs and is continuing, the Trustee may
    recover judgment in its own name and as trustee of an express
    trust against the Company or any other obligor on the Notes for
    the whole amount of principal, premium, if any, and accrued
    interest remaining unpaid, together with interest on overdue
    principal and, to the extent that payment of such interest is
    lawful, interest on overdue installments of interest, in each
    case at the rate per annum borne by the Notes and such further
    amount as shall be sufficient to cover the costs and expenses of
    collection, including the reasonable compensation, expenses,
    disbursements and advances of the Trustee, its agents and
    counsel, and any other amounts due the Trustee under
    Section 7.7.



 



    Section 6.12  Trustee
    May File Proofs of Claim.  The Trustee may
    file such proofs of claim and other papers or documents as may
    be necessary or advisable in order to have the claims of the
    Trustee (including any claim for the reasonable compensation,
    expenses, disbursements and advances of the Trustee, its agents
    and counsel and any other amount due to the Trustee under
    Section 7.7, accountants and experts) and the Holders
    allowed in any judicial proceedings relating to the Company, its
    creditors or its property or other obligor on the Notes, its
    creditors and its property and shall be entitled and empowered
    to collect and receive any monies or other property payable or
    deliverable on any such claims and to distribute the same, and
    any Custodian in any such judicial proceedings is hereby
    authorized by each Holder to make such payments to the Trustee
    and, in the event that the Trustee shall consent to the making
    of such payments directly to the Holders, to pay to the Trustee
    any amount due to it for the reasonable compensation, expenses,
    disbursements and advances of the Trustee, its agent and
    counsel, and any other amounts due the Trustee under
    Section 7.7. To the extent that the payment of any such
    compensation, expenses, disbursements and advances of the
    Trustee, its agents and counsel, and any other amounts due the
    Trustee under Section 7.7 hereof out of the estate in any
    such proceeding, shall be denied for any reason, payment of the
    same shall be secured by a Lien on, and shall be paid out of,
    any and all distributions, dividends, money, securities and
    other properties which the Holders of the Notes may be entitled
    to receive in such proceeding whether in liquidation or under
    any plan of reorganization or arrangement or otherwise.



 



    Section 6.13  Priorities.  If
    the Trustee collects any money or property pursuant to this
    Article VI, it shall pay out the money or property in the
    following order:



 



    First:  to the Trustee and the Agents for
    amounts due under Section 7.7, including (but not limited to)
    payment of all compensation, fees, expense and liabilities
    incurred, and all advances made, by the Trustee and the costs
    and expenses of collection;



 



    Second:  to Holders for amounts due and unpaid
    on the Notes for principal, premium, if any, interest and
    Additional Amounts, if any, ratably, without preference or
    priority of any kind, according to the amounts due and payable
    on the Notes for principal, premium, if any, interest and
    Additional Amounts, if any, respectively; and



 



    Third:  to the Issuer, the Guarantors or any
    other obligor on the Notes, as their interests may appear, or as
    a court of competent jurisdiction may direct.




    

    36








 






    The Trustee, upon prior notice to the Issuer, may fix a record
    date and payment date for any payment to Holders pursuant to
    this Section 6.13; provided that the failure to give
    any such notice shall not affect the establishment of such
    record date or payment date for Holders pursuant to this
    Section 6.13.



 



    Section 6.14  Restoration
    of Rights and Remedies.  If the Trustee or any
    Holder of any Note has instituted any proceeding to enforce any
    right or remedy under this Indenture and such proceeding has
    been discontinued or abandoned for any reason, or has been
    determined adversely to the Trustee or to such Holder, then and
    in every such case, subject to any determination in such
    proceeding, the Issuer, the Trustee and the Holders of Notes
    shall be restored severally and respectively to their former
    positions hereunder and thereafter all rights and remedies of
    the Trustee and the Holders of Notes shall continue as though no
    such proceeding had been instituted.



 



    Section 6.15  Undertaking
    for Costs.  In any suit for the enforcement of
    any right or remedy under this Indenture or in any suit against
    the Trustee for any action taken or omitted by it as Trustee, a
    court in its discretion may require the filing by any party
    litigant in the suit of an undertaking to pay the costs of the
    suit, and the court in its discretion may assess reasonable
    costs, including reasonable attorneys’ fees and expenses,
    against any party litigant in the suit, having due regard to the
    merits and good faith of the claims or defenses made by the
    party litigant. This Section 6.15 does not apply to a suit
    by the Trustee, a suit by a Holder pursuant to
    Section 6.10, or a suit by a Holder or Holders of more than
    10% in principal amount of the outstanding Notes.



 



    Section 6.16  Notices
    of Default.  If a Default occurs and is
    continuing and is known to the Trustee, the Trustee must mail to
    each Holder of Notes notice of the Default within 90 days
    after it has become known to the Trustee. Except in the case of
    a Default in the payment of principal of, premium, if any,
    interest and Additional Amounts, if any, on any Note, the
    Trustee may withhold notice if and so long as a committee of
    Trust Officers determines that withholding notice is in the
    interests of such Holders of Notes.



 




    ARTICLE VII

    



 




    TRUSTEE
    



 



    Section 7.1  Duties
    of Trustee.  If an Event of Default actually
    known to a Trust Officer of the Trustee has occurred and is
    continuing, the Trustee shall exercise such of the rights and
    powers vested in it by this Indenture and use the same degree of
    care and skill in their exercise as a prudent Person would
    exercise or use under the circumstances in the conduct of his or
    her own affairs. Subject to such provisions, the Trustee will be
    under no obligation to exercise any of its rights or powers
    under this Indenture at the request of any of the Holders of
    Notes, unless they shall have offered to the Trustee reasonable
    security and indemnity satisfactory to the Trustee against any
    loss, liability or expense in accordance with the sixth
    paragraph of Section 7.7.



 



    (a) Except during the continuance of an Event of Default
    actually known to the Trustee:



 



    (1) The Trustee and the Agents will perform only those
    duties as are specifically set forth herein and no others and no
    implied covenants or obligations shall be read into this
    Indenture against the Trustee or the Agents.



 



    (2) In the absence of willful misconduct on their part, the
    Trustee and the Agents may conclusively rely, as to the truth of
    the statements and the correctness of the opinions expressed
    therein, upon certificates or opinions and such other documents
    delivered to them pursuant to Section 11.2 and conforming
    to the requirements of this Indenture. However, in the case of
    any such certificates or opinions which by any provision hereof
    are required to be furnished to the Trustee, the Trustee shall
    examine the certificates and opinions to determine whether or
    not they conform to the requirements of this Indenture.



 



    (b) The Trustee may not be relieved from liability for its
    own negligent action, its own negligent failure to act, or its
    own willful misconduct, except that:



 



    (1) This paragraph does not limit the effect of
    subsection (a) of this Section 7.1.



 



    (2) Neither the Trustee nor Agent shall be liable for any
    error of judgment made in good faith by a Trust Officer of
    such Trustee or Agent, unless it is proved that the Trustee or
    such Agent was negligent in ascertaining the pertinent facts.




    

    37








 






    (3) The Trustee shall not be liable with respect to any
    action it takes or omits to take in good faith in accordance
    with a direction received by it pursuant to Section 6.2,
    6.7 or 6.8.



 



    (c) No provision of this Indenture shall require the
    Trustee or any Agent to expend or risk its own funds or
    otherwise incur any financial liability in the performance of
    any of its duties hereunder or to take or omit to take any
    action under this Indenture or take any action at the request or
    direction of Holders if it shall have reasonable grounds for
    believing that repayment of such funds is not assured to it or
    it does not receive an indemnity satisfactory to it in its sole
    discretion against such risk, liability, loss, fee or expense
    which might be incurred by it in the performance of any of its
    duties hereunder.



 



    (d) Whether or not therein expressly so provided, every
    provision of this Indenture that in any way relates to the
    Trustee is subject to the first paragraph and subsections (a),
    (b) and (c) of this Section 7.1.



 



    (e) Neither the Trustee nor the Agents shall be liable for
    interest on any money received by it except as the Trustee and
    any Agent may agree in writing with the Issuer. Money held in
    trust by the Trustee or any Agent need not be segregated from
    other funds except to the extent required by law.



 



    (f) Any provision hereof relating to the conduct or
    affecting the liability of or affording protection to the
    Trustee shall be subject to the provisions of this
    Section 7.1.



 



    Section 7.2  Rights
    of Trustee.  Subject to Section 7.1:



 



    (a) The Trustee and each Agent may rely conclusively on and
    shall be protected from acting or refraining from acting based
    upon any document believed by them to be genuine and to have
    been signed or presented by the proper Person. Neither the
    Trustee nor any Agent shall be bound to make any investigation
    into the facts or matters stated in any resolution, certificate,
    statement, instrument, opinion, report, notice, request, consent
    order, approval, appraisal, bond, debenture, note, coupon,
    security or other paper or document. The Trustee shall not be
    deemed to have notice or any knowledge of any matter (including
    without limitation Defaults or Events of Default) unless a
    Trust Officer assigned to and working in the Trustee’s
    Corporate Trust Office which is administering this
    Indenture has actual knowledge thereof or unless written notice
    thereof is received by the Trustee, attention: Corporate Trust
    and such notice clearly references the Notes, the Issuer or this
    Indenture.



 



    (b) Before the Trustee acts or refrains from acting, it may
    consult with counsel and may require an Officers’
    Certificate, Issuer Order (as applicable) or an Opinion of
    Counsel or both. Neither the Trustee nor any Agent shall be
    liable for any action it takes or omits to take in good faith in
    reliance on such certificate or opinion.



 



    (c) The Trustee and any Agent may act through their
    attorneys and agents and shall not be responsible for the
    misconduct or negligence of any agent (other than an agent who
    is an employee of the Trustee or such Agent) appointed with due
    care.



 



    (d) The Trustee shall not be liable for any action it takes
    or omits to take in good faith which it reasonably believes to
    be authorized or within its rights or powers conferred upon it
    by this Indenture; provided, however, that the
    Trustee’s conduct does not constitute willful misconduct,
    negligence or bad faith.



 



    (e) The Trustee or any Agent may consult with counsel of
    its selection and the advice or opinion of such counsel as to
    matters of law shall be full and complete authorization and
    protection from liability in respect of any action taken,
    omitted or suffered by it hereunder and in accordance with the
    advice or opinion of such counsel.



 



    (f) Except to the extent provided for in Section 9.1
    and subject to Section 9.2 hereof, the Trustee may (but
    shall not be obligated to), without the consent of the Holders,
    give any consent, waiver or approval required by the terms
    hereof, but shall not without the consent of the Holders of not
    less than a majority in aggregate principal amount of the Notes
    at the time outstanding (i) give any consent, waiver or
    approval or (ii) agree to any amendment or modification of
    this Indenture, in each case, that shall have a material adverse
    effect on the interests of any Holder. The Trustee shall be
    entitled to request and conclusively rely on an Opinion of
    Counsel with respect to whether any consent, waiver, approval,
    amendment or modification shall have a material adverse effect
    on the interests of any Holder.




    

    38








 






    Section 7.3  Individual
    Rights of Trustee.  The Trustee or any Agent
    in its respective individual or any other capacity may become
    the owner or pledgee of Notes and may otherwise deal with the
    Issuer, the Guarantors, their Subsidiaries, or their respective
    Affiliates with the same rights it would have if it were not the
    Trustee or an Agent. However, in the event that the Trustee
    acquires any conflicting interest it must eliminate such
    conflict within 90 days, apply to the SEC for permission to
    continue as trustee or resign. Any Agent may do the same with
    like rights.



 



    Section 7.4  Trustee’s
    Disclaimer.  The Trustee and the Agents shall
    not be responsible for and make no representation as to the
    validity, effectiveness or adequacy of this Indenture, the
    offering materials related to the Notes or the Notes; they shall
    not be accountable for the Issuer’s use of the proceeds
    from the Notes or any money paid to the Issuer or upon the
    Issuer’s direction under any provision hereof; and they
    shall not be responsible for any statement or recital herein of
    the Issuer or the Guarantors or any document issued in
    connection with the sale of Notes or any statement in the Notes
    other than the Trustee’s certificate of authentication.



 



    Section 7.5  Notice
    of Default.  If an Event of Default occurs and
    is continuing and a Trust Officer of the Trustee receives
    actual notice of such event, the Trustee shall mail to each
    Holder, as their names and addresses appear on the list of
    Holders described in Section 2.5, notice of the uncured
    Default or Event of Default within 90 days after the
    Trustee receives such notice. Except in the case of a Default in
    payment of principal of, premium, if any, or interest on any
    Note, the Trustee may withhold the notice if and so long as a
    committee of its Trust Officers determines that withholding
    the notice is in the interest of the Holders.



 



    Section 7.6  Reports
    by Trustee to Holders of the Notes.  Within
    60 days after each May 15 beginning with May 15, 2008,
    and for so long as Notes remain outstanding, the Trustee shall
    mail to the Holders a brief report dated as of such reporting
    date that complies with TIA § 313(a) (but if no event
    described in TIA § 313(a) has occurred within the
    twelve months preceding the reporting date, no report need be
    transmitted). The Trustee also shall comply with TIA
    § 313(b). The Trustee shall also transmit by mail all
    reports as required by TIA § 313(c).



 



    A copy of each report at the time of its mailing to the Holders
    shall be mailed to the Issuer and filed with the SEC and each
    stock exchange on which the Issuer has informed the Trustee in
    writing the Notes are listed in accordance with TIA
    § 313(d). The Issuer shall promptly notify the Trustee
    when the Notes are listed on any stock exchange and of any
    delisting thereof.



 



    Section 7.7  Compensation
    and Indemnity.  The Issuer shall pay to the
    Trustee and Agents from time to time such compensation as the
    Issuer and the Trustee shall from time to time agree in writing
    for its acceptance of this Indenture and services hereunder. The
    Trustee’s and the Agents’ compensation shall not be
    limited by any law on compensation of a trustee of an express
    trust. The Issuer shall reimburse the Trustee and Agents upon
    request for all reasonable and duly documented and invoiced
    disbursements, expenses and advances (including reasonable fees
    and expenses of counsel) incurred or made by it in addition to
    the compensation for their services, except any such
    disbursements, expenses and advances as may be attributable to
    the Trustee’s or any Agent’s negligence, willful
    misconduct or bad faith. Such expenses shall include the
    reasonable compensation, disbursements and expenses of the
    Trustee’s and Agents’ accountants, experts and counsel
    and any taxes or other expenses incurred by a trust created
    pursuant to Section 8.4 hereof.



 



    The Issuer agrees to pay the fees and expenses of the
    Trustee’s legal counsel in connection with its review,
    preparation and delivery of this Indenture and related
    documentation.



 



    The Issuer shall indemnify each of the Trustee, any predecessor
    Trustee and the Agents (which, for purposes of this paragraph,
    include such Trustee’s and Agents’ officers,
    directors, employees and agents) for, and hold them harmless
    against, any and all loss, damage, claim, proceedings, demands,
    costs, expense or liability including taxes (other than taxes
    based on the income of the Trustee) incurred by the Trustee or
    an Agent without negligence or willful misconduct on its part in
    connection with acceptance of administration of this trust and
    performance of any provisions under this Indenture, including
    the reasonable expenses and attorneys’ fees and expenses of
    defending itself against any claim of liability arising
    hereunder. The Trustee and the Agents shall notify the Issuer
    promptly of any claim asserted against the Trustee or such Agent
    for which it may seek indemnity. However, the failure by the
    Trustee or the Agent to so notify the Issuer shall not relieve
    the Issuer of its obligations hereunder. Subject to
    Section 7.1(b), the Issuer need not reimburse or indemnify
    against any loss liability or expense incurred by the




    

    39








 






    Trustee through its own willful misconduct or negligence. The
    Issuer shall defend the claim and the Trustee or such Agent
    shall cooperate in the defense (and may employ its own counsel
    reasonably satisfactory to the Trustee) at the Issuer’s
    expense. The Trustee or such Agent may have separate counsel and
    the Issuer shall pay the reasonable fees and expenses of such
    counsel. The Issuer need not pay for any settlement made without
    its written consent, which consent shall not be unreasonably
    withheld.



 



    To secure the Issuer’s payment obligations in this
    Section 7.7, the Trustee and the Agents shall have a senior
    Lien prior to the Notes against all money or property held or
    collected by the Trustee and the Agents, in its capacity as
    Trustee or Agent, except money or property held in trust to pay
    principal or premium, if any, and Additional Amounts, if any, or
    interest on particular Notes.



 



    When the Trustee or an Agent incurs expenses or renders services
    after the occurrence of an Event of Default specified in
    clause (7) of Section 6.1, the expenses (including the
    reasonable fees and expenses of its agents and counsel) and the
    compensation for the services shall be preferred over the status
    of the Holders in a proceeding under any Bankruptcy Law and are
    intended to constitute expenses of administration under any
    Bankruptcy Law. The Issuer’s obligations under this
    Section 7.7 and any claim or Lien arising hereunder shall
    survive the termination of this Indenture, the resignation or
    removal of any Trustee or Agent, the discharge of the
    Issuer’s obligations pursuant to Article VIII and any
    rejection or termination under any Bankruptcy Law.



 



    Save as otherwise expressly provided in this Indenture, the
    Trustee shall have absolute and uncontrolled discretion as to
    the exercise of the discretion vested in the Trustee by this
    Indenture but, whenever the Trustee is bound to act under this
    Indenture at the request or direction of the Holders of Notes,
    the Trustee shall nevertheless not be so bound unless first
    indemnified to its satisfaction against all proceedings, claims
    and demands to which it may render itself liable and all costs,
    charges, expenses and liabilities which it may incur by so doing.



 



    Whether or not therein expressly so provided, every provision of
    this Indenture that in any way relates to the Trustee, is
    subject to this Section 7.7.



 



    The Company shall be jointly and severally liable with the
    Issuer for all of the Issuer’s obligations pursuant to this
    Section 7.7.



 



    Section 7.8  Replacement
    of Trustee.  The Trustee and any Agent may
    resign at any time by so notifying the Issuer in writing. The
    Holders of a majority in principal amount of the outstanding
    Notes may remove the Trustee by so notifying the Issuer and the
    Trustee in writing and may appoint a successor trustee with the
    Issuer’s consent. A resignation or removal of the Trustee
    or any Agent and appointment of a successor Trustee or Agent, as
    the case may be, shall become effective only upon the successor
    Trustee’s acceptance of appointment as provided in this
    section. The Issuer may remove the Trustee if:



 



    (1) the Trustee is adjudged a bankrupt or an insolvent or
    an order for relief is entered with respect to the Trustee under
    any Bankruptcy Law;



 



    (2) a receiver or other public officer takes charge of the
    Trustee or its property; or



 



    (3) the Trustee becomes incapable of acting with respect to
    its duties hereunder.



 



    If the Trustee resigns or is removed or if a vacancy exists in
    the office of Trustee for any reason, the Issuer shall notify
    each Holder of such event and shall promptly appoint a successor
    Trustee. Within one year after the successor Trustee takes
    office, the Holders of a majority in principal amount of the
    then outstanding Notes may, with the Issuer’s consent,
    appoint a successor Trustee to replace the successor Trustee
    appointed by the Issuer. If the Issuer does not reasonably
    promptly appoint a successor Trustee, the Holders of a majority
    in principal amount of the then outstanding Notes may appoint a
    successor Trustee.



 



    A successor Trustee shall deliver a written acceptance of its
    appointment to the retiring Trustee and to the Issuer.
    Thereupon, the resignation or removal of the retiring Trustee
    shall become effective, and the successor Trustee shall have all
    the rights, powers and duties of the Trustee under this
    Indenture. Promptly after that, the retiring Trustee shall
    transfer, after payment of all sums then owing to the Trustee
    pursuant to Section 7.7, all property held by it as Trustee
    to the successor Trustee, subject to the Lien provided in
    Section 7.7. A successor Trustee shall mail notice of its
    succession to each Holder.




    

    40








 






    If a successor Trustee does not take office within 60 days
    after the retiring Trustee resigns or is removed, the retiring
    Trustee, the Issuer or the Holders of at least 10% in principal
    amount of the then outstanding Notes may petition any court of
    competent jurisdiction for the appointment of a successor
    Trustee.



 



    Notwithstanding replacement of the Trustee pursuant to this
    Section 7.8, the Issuer’s obligations under
    Section 7.7 shall continue for the benefit of the retiring
    Trustee and the Issuer shall pay to any replaced or removed
    Trustee all amounts owed under Section 7.7 upon such
    replacement or removal.



 



    Section 7.9  Successor
    Trustee by Merger, etc.  If the Trustee
    consolidates with, merges or converts into, or transfers all or
    substantially all of its corporate trust business to, another
    corporation or banking association, the resulting, surviving or
    transferee corporation without any further act shall, if such
    resulting, surviving or transferee corporation is otherwise
    eligible hereunder, be the successor Trustee. In case any Notes
    shall have been authenticated, but not delivered, by the Trustee
    then in office, any successor by consolidation, merger or
    conversion to such authenticating Trustee may adopt such
    authentication and deliver the Notes so authenticated with the
    same effect as if such successor Trustee had itself
    authenticated such Notes.



 



    Section 7.10  Eligibility;
    Disqualification.  There shall at all times be
    a Trustee hereunder that is a corporation organized and doing
    business under the laws of the United States of America or of
    any state thereof that is authorized under such laws to exercise
    corporate trustee power and that is subject to supervision or
    examination by federal or state authorities. The Trustee
    together with its affiliates shall at all times have a combined
    capital surplus of at least $50.0 million as set forth in
    its most recent annual report of condition.



 



    This Indenture shall always have a Trustee who satisfies the
    requirements of TIA §§ 310(a)(l), (2) and
    (5). The Trustee is subject to TIA § 310(b) including
    the provision in § 310(b)(1); provided that
    there shall be excluded from the operation of TIA
    § 310(b)(1) any indenture or indentures under which
    other securities, or conflicts of interest or participation in
    other securities, of the Issuer or the Guarantors are
    outstanding if the requirements for exclusion set forth in TIA
    § 310(b)(1) are met.



 



    Section 7.11  Preferential
    Collection of Claims Against the Company.  The
    Trustee is subject to TIA § 311(a), excluding any
    creditor relationship listed in TIA § 311(b). A
    Trustee who has resigned or been removed shall be subject to TIA
    § 311(a) to the extent indicated therein.



 




    ARTICLE VIII

    



 




    SATISFACTION
    AND DISCHARGE OF INDENTURE
    



 



    Section 8.1  Option
    To Effect Legal Defeasance or Covenant
    Defeasance.  The Issuer may, at the option of
    its Board of Directors evidenced by a Board Resolution, at any
    time, with respect to the Notes, elect to have either
    Section 8.2 or 8.3 be applied to all outstanding Notes upon
    compliance with the conditions set forth below in this
    Article VIII.



 



    Section 8.2  Legal
    Defeasance and Discharge.  Upon the
    Issuer’s exercise under Section 8.1 of the option
    applicable to this Section 8.2, the Issuer shall be deemed
    to have been discharged from its obligations with respect to all
    outstanding Notes on the date the conditions set forth below are
    satisfied (hereinafter, “Legal Defeasance”). For this
    purpose, such Legal Defeasance means that the Issuer shall be
    deemed to have paid and discharged all the obligations relating
    to the outstanding Notes and the Notes shall thereafter be
    deemed to be “outstanding” only for the purposes of
    Section 8.6, Section 8.8 and the other Sections of
    this Indenture referred to below in this Section 8.2, and
    to have satisfied all of their other obligations under such
    Notes and this Indenture and cured all then existing Events of
    Default (and the Trustee, on demand of and at the expense of the
    Issuer, shall execute proper instruments acknowledging the
    same), except for the following which shall survive until
    otherwise terminated or discharged hereunder: (a) the
    rights of Holders of outstanding Notes to receive payments in
    respect of the principal of, premium, if any, interest and
    Additional Amounts, if any, on such Notes when such payments are
    due or on the Redemption Date solely out of the Defeasance
    Trust created pursuant to this Indenture; (b) the
    Issuer’s obligations with respect to Notes concerning
    issuing temporary Notes, or, where relevant, registration of
    such Notes, mutilated, destroyed, lost or stolen Notes and the
    maintenance of an office or agency for payment and money for
    security payments held in trust; (c) the rights, powers,
    trusts, duties and immunities of the Trustee, and the
    Issuer’s or




    

    41








 






    Guarantors’ obligations in connection therewith; and
    (d) this Article VIII and the obligations set forth in
    Section 8.6 hereof.



 



    Subject to compliance with this Article VIII, the Issuer
    may exercise its option under Section 8.2 notwithstanding
    the prior exercise of its option under Section 8.3 with
    respect to the Notes.



 



    Section 8.3  Covenant
    Defeasance.  Upon the Issuer’s exercise
    under Section 8.1 of the option applicable to this
    Section 8.3, the Issuer, the Company and the other
    Guarantors shall be released from any obligations under the
    covenants contained in Article IV, Section 5.1(4),
    Sections 6.1(3), (4) and (5), and Section 6.1 (7)
    (with respect to the Company and the Subsidiaries other than the
    Issuer), hereof with respect to the outstanding Notes on and
    after the date the conditions set forth below are satisfied
    (hereinafter, “Covenant Defeasance”), and the Notes
    shall thereafter be deemed not “outstanding” for the
    purposes of any direction, waiver, consent or declaration or act
    of Holders (and the consequences of any thereof) in connection
    with such covenants, but shall continue to be deemed
    “outstanding” for all other purposes hereunder (it
    being understood that such Notes shall not be deemed outstanding
    for accounting purposes). For this purpose, such Covenant
    Defeasance means that, (i) with respect to the outstanding
    Notes, the Issuer may omit to comply with and shall have no
    liability in respect of any term, condition or limitation set
    forth in any such covenant, whether directly or indirectly, by
    reason of any reference elsewhere herein to any such covenant or
    by reason of any reference in any such covenant to any other
    provision herein or in any other document and (ii) payment
    on the Notes may not be accelerated because of an Event of
    Default specified in Sections 6.1 (3), (4) or (5), or
    Section 6.1 (7) (with respect only to the Company and the
    Subsidiaries other than the Issuer).



 



    Section 8.4  Conditions
    to Legal or Covenant Defeasance.  In order to
    exercise either of the defeasance options under Section 8.2
    or Section 8.3 hereof, the Issuer must comply with the
    following conditions:



 



    (1) the Issuer shall have irrevocably deposited in trust
    (the “Defeasance Trust”) with the Trustee for the
    benefit of the Holders Designated Government Obligations, for
    the payment of principal, premium, if any, interest on the Notes
    to redemption or maturity, as the case may be;



 



    (2) the Issuer shall have delivered to the Trustee an
    Opinion of Counsel (subject to customary exceptions and
    exclusions) to the effect that Holders of the Notes will not
    recognize income, gain or loss for U.S. federal income tax
    purposes as a result of such deposit and defeasance and will be
    subject to U.S. federal income tax on the same amount and
    in the same manner and at the same times as would have been the
    case if such deposit and defeasance had not occurred. In the
    case of legal defeasance only, such Opinion of Counsel must be
    based on a ruling of the Internal Revenue Service or other
    change in applicable U.S. federal income tax law;



 



    (3) the Issuer shall have delivered to the Trustee an
    Opinion of Counsel in the Federal Republic of Germany (subject
    to customary exceptions and exclusions) to the effect that
    Holders of the Notes will not recognize income, gain or loss for
    income tax purposes of the Federal Republic of Germany as a
    result of such deposit and defeasance and will be subject to
    income tax in the Federal Republic of Germany on the same amount
    and in the same manner and at the same times as would have been
    the case if such deposit and defeasance had not occurred;



 



    (4) the Issuer shall have delivered to the Trustee an
    Opinion of Counsel in Luxembourg (subject to customary
    exceptions and exclusions) to the effect that Holders of the
    Notes will not recognize income, gain or loss for income tax
    purposes of Luxembourg as a result of such deposit and
    defeasance and will be subject to income tax in Luxembourg on
    the same amount and in the same manner and at the same times as
    would have been the case if such deposit and defeasance had not
    occurred;



 



    (5) no Default or Event of Default (other than to Incur
    Indebtedness used to defease the Notes under this Article) shall
    have occurred and be continuing on the date of such deposit in
    the Defeasance Trust or insofar as Events of Default from
    bankruptcy or insolvency events are concerned, at any time in
    the period ending on the 91st day after the date of deposit;



 



    (6) such legal defeasance or covenant defeasance shall not
    result in a breach or violation of any other material agreement
    or instrument (other than this Indenture) to which the Company
    or any of its Subsidiaries is a party or by which the Company or
    any of its Subsidiaries is bound;




    

    42








 






    (7) the Issuer shall have delivered to the Trustee an
    Officers’ Certificate stating that the deposit was not made
    by the Issuer with the intent of preferring the Holders over any
    other creditors of the Issuer or with the intent of defeating,
    hindering, delaying or defrauding any other creditors of the
    Issuer or others; and



 



    (8) the Issuer shall have delivered to the Trustee an
    Officers’ Certificate and an Opinion of Counsel, each
    stating that all conditions precedent provided for or relating
    to the legal defeasance or the covenant defeasance have been
    complied with.



 



    Section 8.5  Satisfaction
    and Discharge of Indenture.  This Indenture
    will be discharged and will cease to be of further effect as to
    all Notes issued thereunder when either (i) all such Notes
    theretofore authenticated and delivered (except lost, stolen or
    destroyed Notes which have been replaced or paid and Notes for
    whose payment money has theretofore been deposited in trust and
    thereafter repaid to the Issuer) have been delivered to the
    Trustee for cancellation or (ii) (A) all such Notes not
    theretofore delivered to the Trustee for cancellation have
    become due and payable by reason of the making of a notice of
    redemption or otherwise or will become due and payable within
    one year and the Issuer has irrevocably deposited or caused to
    be deposited with the Trustee as trust funds in trust an amount
    of money sufficient to pay and discharge the entire indebtedness
    on such Notes not theretofore delivered to the Trustee for
    cancellation for principal, premium, if any, and accrued and
    unpaid interest and Additional Amounts, if any, to the date of
    maturity or redemption, (B) no Default (other than to Incur
    Indebtedness used to defease the Notes under this Article) with
    respect to this Indenture or the Notes shall have occurred and
    be continuing on the date of such deposit or shall occur as a
    result of such deposit and such deposit will not result in a
    breach or violation of, or constitute a default under, any other
    instrument to which the Issuer, the Company or any of the other
    Guarantors is a party or by which it is bound, (C) the
    Issuer has paid, or caused to be paid, all sums payable by it
    under this Indenture, and (D) the Issuer has delivered
    irrevocable instructions to the Trustee under this Indenture to
    give the notice of redemption and apply the deposited money
    toward the payment of such Notes at maturity or the
    Redemption Date, as the case may be. In addition, the
    Issuer must deliver an Officers’ Certificate and an Opinion
    of Counsel to the Trustee stating that all conditions precedent
    to satisfaction and discharge have been satisfied.



 



    Section 8.6  Survival
    of Certain Obligations.  Notwithstanding the
    satisfaction and discharge of this Indenture and of the Notes in
    the manner referred to in Section 8.1, 8.2, 8.3, 8.4 or
    8.5, the respective obligations of the Issuer, the Company, the
    other Guarantors and the Trustee under Sections 2.2, 2.3,
    2.4, 2.5, 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1 (with
    respect to the Trustee and, as far as the Issuer, the Company,
    and each of the other Guarantors is concerned, subject to
    Sections 8.2 and 8.5), 4.2, 4.6, 4.13 and 6.10,
    Article VII and Article VIII shall survive until the
    Notes are no longer outstanding, and thereafter the obligations
    of the Issuer the Company, the other Guarantors and the Trustee
    under Articles VII and VIII shall survive. Nothing
    contained in this Article VIII shall abrogate any of the
    obligations or duties of the Trustee under this Indenture.



 



    Section 8.7  Acknowledgment
    of Discharge by Trustee.  Subject to
    Section 8.10, after (i) the conditions of
    Section 8.4 or 8.5 have been satisfied, (ii) the
    Issuer has paid or caused to be paid all other sums payable
    hereunder by the Issuer and (iii) the Issuer has delivered
    to the Trustee an Officers’ Certificate and an Opinion of
    Counsel, each stating that all conditions precedent referred to
    in clause (i) above relating to the satisfaction and
    discharge of this Indenture have been complied with, the Trustee
    upon written request shall acknowledge in writing the discharge
    of all of the Issuer’s the Company’s, and the other
    Guarantors’ obligations under this Indenture except for
    those surviving obligations specified in this Article VIII.



 



    Section 8.8  Application
    of Trust Moneys.  All cash deposited with
    the Trustee pursuant to Section 8.4 or 8.5 in respect of
    Notes shall be held in trust and applied by it, in accordance
    with the provisions of such Notes and this Indenture, to the
    payment, either directly or through any Paying Agent as the
    Trustee may determine, to the Holders of the Notes of all sums
    due and to become due thereon for principal, premium, if any,
    interest and Additional Amounts, if any, but such money need not
    be segregated from other funds except to the extent required by
    law.



 



    The Issuer shall pay and indemnify the Trustee against any tax,
    fee or other charge imposed on or assessed against the cash
    deposited pursuant to Section 8.4 or 8.5 or the principal
    and interest received in respect thereof other than any such
    tax, fee or other charge which by law is for the account of the
    Holders of outstanding Notes.



 



    Section 8.9  Repayment
    to the Issuer; Unclaimed Money.  The Trustee
    and any Paying Agent shall promptly pay or return to the Issuer
    upon Issuer Order any cash held by them at any time that are not
    required for the payment




    

    43








 






    of the principal of, premium, if any, interest and Additional
    Amounts, if any, on the Notes for which cash has been deposited
    pursuant to Section 8.4 or 8.5.



 



    Any money held by the Trustee or any Paying Agent under this
    Article VIII, in trust for the payment of the principal of,
    premium, if any, interest and Additional Amounts, if any, on any
    Note and remaining unclaimed for two years after such principal,
    premium, if any, interest and Additional Amounts, if any, that
    has become due and payable shall be paid to the Issuer upon
    Issuer Order or if then held by the Issuer shall be discharged
    from such trust; and the Holder of such Note shall thereafter,
    as an unsecured general creditor, look only to the Issuer for
    payment thereof, and all liability of the Trustee or such Paying
    Agent with respect to such trust money, shall thereupon cease;
    provided, however, that the Trustee or such Paying
    Agent, before being required to make any such repayment, may at
    the expense of the Issuer give notice to the Holders or cause to
    be published notice once, in a leading newspaper having a
    general circulation in New York (which is expected to be The
    Wall Street Journal) (and, if and so long as the Notes are
    listed on the Luxembourg Stock Exchange and the rules of such
    stock exchange shall so require, a newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) or in the case of Definitive Notes, in
    addition to such publication, mail to Holders by first-class
    mail, postage prepaid, at their respective addresses as they
    appear on the registration books of the Registrar (and, if and
    so long as the Notes are listed on the Luxembourg Stock Exchange
    and the rules of such Stock Exchange shall so require, publish
    in a newspaper having a general circulation in Luxembourg (which
    is expected to be the Luxemburger Wort)), that such money
    remains unclaimed and that, after a date specified therein,
    which shall not be less than 30 days from the date of such
    notification, any unclaimed balance of such money then remaining
    will be repaid to the Issuer.



 



    Claims against the Issuer for the payment of principal or
    interest and Additional Amounts, if any, on the Notes will
    become void unless presentment for payment is made (where so
    required in this Indenture) within, in the case of principal and
    Additional Amounts, if any, a period of ten years, or, in the
    case of interest, a period of five years, in each case from the
    applicable original payment date therefor.



 



    Section 8.10  Reinstatement.  If
    the Trustee or Paying Agent is unable to apply any cash in
    accordance with Section 8.2, 8.3, 8.4 or 8.5 by reason of
    any legal proceeding or by reason of any order or judgment of
    any court or governmental authority enjoining, restraining or
    otherwise prohibiting such application, the Issuer’s and
    the Guarantors’ obligations under this Indenture and the
    Notes shall be revived and reinstated as though no deposit had
    occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until
    such time as the Trustee or Paying Agent is permitted to apply
    all such cash in accordance with Section 8.2, 8.3, 8.4 or
    8.5; provided, however, that if the Issuer has
    made any payment of interest on, premium, if any, principal and
    Additional Amounts, if any, of any Notes because of the
    reinstatement of its obligations, the Issuer shall be subrogated
    to the rights of the Holders of such Notes to receive such
    payment from the money held by the Trustee or Paying Agent.



 




    ARTICLE IX

    



 




    AMENDMENTS,
    SUPPLEMENTS AND WAIVERS
    



 



    Section 9.1  Without
    Consent of Holders of Notes.  Notwithstanding
    Section 9.2 hereof, the Issuer and the Trustee together may
    amend or supplement this Indenture or the Notes without the
    consent of any Holder of a Note to:



 



    (1) cure any ambiguity, omission, defect or inconsistency;



 



    (2) provide for the assumption by a successor entity of the
    obligations of the Issuer under and pursuant to this Indenture
    or of a Guarantor (other than the Company) under the Note
    Guarantees;



 



    (3) provide for uncertificated Notes in addition to or in
    place of certificated Notes (provided that the
    uncertificated Notes are issued in registered form for purposes
    of Section 163(f) of the Code, or in a manner such that the
    uncertificated Notes are described in Section 163(f)(B) of the
    Code);



 



    (4) add Note Guarantees with respect to the Notes;



 



    (5) secure the Notes;




    

    44








 






    (6) add to the covenants of the Issuer and the Guarantors
    for the benefit of the Holders or to surrender any right or
    power conferred upon the Issuer;



 



    (7) evidence and provide for the acceptance and appointment
    under this Indenture of any successor trustee;



 



    (8) comply with the rules of any applicable securities
    depositary;



 



    (9) issue Additional Notes in accordance with this
    Indenture; or



 



    (10) make any change that does not adversely affect the
    rights of any Holder of Notes under this Indenture.



 



    Section 9.2  With
    Consent of Holders of Notes.  The Issuer and
    the Trustee may amend or supplement this Indenture, the Notes or
    any amended or supplemental indenture with the written consent
    of the Holders of at least a majority in principal amount of the
    Notes then outstanding (including without limitation consents
    obtained in connection with a purchase of, or tender offer or
    exchange offer for the Notes), and, subject to Sections 6.7
    and 6.10, any existing Default or Event of Default and its
    consequences or compliance with any provision of this Indenture
    or the Notes may be waived with the consent of the Holders of at
    least a majority in principal amount of the Notes then
    outstanding (including without limitation consents obtained in
    connection with a purchase of, or tender offer or exchange offer
    for the Notes). However, without the consent of each Holder of
    an outstanding Note adversely affected, an amendment or waiver
    may not (with respect to any Notes held by a non-consenting
    Holder of Notes):



 



    (1) reduce the percentage of principal amount of Notes
    whose Holders must consent to an amendment;



 



    (2) reduce the stated rate of or extend the stated time for
    payment of interest on any such Note;



 



    (3) reduce the principal of or extend the Stated Maturity
    of any such Note;



 



    (4) reduce the premium payable upon the redemption of any
    such Note or change the time at which any such Note may be
    redeemed as described under Section 3.1;



 



    (5) reduce the premium payable upon the repurchase of any
    Note, change the time at which any Note may be repurchased, or
    change any of the associated definitions related to the
    provisions of Section 4.11 once the obligation to
    repurchase the Notes has arisen;



 



    (6) make any such Note payable in money other than that
    stated in such Note;



 



    (7) impair the right of any Holder to receive payment of
    premium, if any, principal of and interest on such Holder’s
    Notes on or after the due dates therefor or to institute suit
    for the enforcement of any payment on or with respect to such
    Holder’s Notes;



 



    (8) make any change in the amendment provisions which
    require each Holder’s consent or in the waiver
    provisions; or



 



    (9) release the Company from its Note Guarantee (other than
    in accordance with the terms of this Indenture).



 



    It shall not be necessary for the consent of the Holders of
    Notes under this Section 9.2 to approve the particular form
    of any proposed amendment or waiver, but it shall be sufficient
    if such consent approves the substance thereof.



 



    Section 9.3  Notice
    of Amendment, Supplement or Waiver.  After an
    amendment, supplement or waiver under Section 9.1 or 9.2
    hereto becomes effective, the Issuer shall mail to the Holders
    of Notes a notice briefly describing the amendment, supplement
    or waiver. Any failure of the Issuer to mail such notice, or any
    defect therein, shall not, however, in any way impair or affect
    the validity of any such amended or supplemental indenture or
    waiver.



 



    Section 9.4  Revocation
    and Effect of Consents.  Until an amendment,
    supplement or waiver becomes effective, a consent to it by a
    Holder of a Note is a continuing consent by the Holder of a Note
    and every subsequent Holder of a Note or portion of a Note that
    evidences the same debt as the consenting Holder’s Note,
    even if notation of the consent is not made on any Note.
    However, any such Holder of a Note or subsequent Holder of a
    Note may




    

    45








 






    revoke the consent as to its Note if the Trustee receives
    written notice of revocation before the date the waiver,
    supplement or amendment becomes effective. An amendment,
    supplement or waiver becomes effective in accordance with its
    terms and thereafter binds every Holder of a Note. An amendment
    or waiver becomes effective once the requisite number of
    consents is received by the Issuer or the Trustee.



 



    The Issuer may, but shall not be obligated to, fix a record date
    for determining which Holders of the Notes must consent to such
    amendment, supplement or waiver. If the Issuer fixes a record
    date, the record date shall be fixed at (i) the later of
    30 days prior to the first solicitation of such consent or
    the date of the most recent list of Holders of Notes furnished
    to the Trustee prior to such solicitation pursuant to
    Section 2.5 or (ii) such other date as the Issuer
    shall designate.



 



    Section 9.5  Notation
    on or Exchange of Notes.  The Trustee may
    place an appropriate notation about an amendment, supplement or
    waiver on any Note thereafter authenticated. The Issuer in
    exchange for all Notes may issue and the Trustee shall
    authenticate new Notes that reflect the amendment, supplement or
    waiver.



 



    Failure to make the appropriate notation or issue a new Note
    shall not affect the validity and effect of such amendment,
    supplement or waiver.



 



    Section 9.6  Trustee
    to Sign Amendments, etc.  The Trustee shall
    execute any amendment, supplement or waiver authorized pursuant
    to this Article IX; provided, however, that
    the Trustee may, but shall not be obligated to, execute any such
    amendment, supplement or waiver which adversely affects the
    Trustee’s own rights, duties or immunities under this
    Indenture. The Trustee shall be entitled to receive indemnity
    reasonably satisfactory to it, and shall be fully protected in
    relying upon, if delivered, an Opinion of Counsel and an
    Officers’ Certificate each stating that the execution of
    any such amendment, supplement or waiver is authorized or
    permitted by this Indenture and constitutes the legal, valid and
    binding obligations of the Issuer and the Guarantors enforceable
    in accordance with its terms. Any Opinion of Counsel shall not
    be an expense of the Trustee. With respect to any amendment,
    supplement or waiver under Section 9.2, the Trustee shall
    also be entitled to receive evidence satisfactory to it of the
    consent of the Holders.



 




    ARTICLE X

    



 




    NOTE GUARANTEE
    



 



    Section 10.1  Note
    Guarantee.



 



    (a) Each Guarantor hereby jointly and severally
    unconditionally Guarantees, on a senior unsecured basis, to each
    Holder of a Note authenticated and delivered by the Trustee, and
    to the Trustee on behalf of such Holder, the due and punctual
    payment of the principal of (and premium, if any) and interest
    (including Additional Amounts, if any) on such Note when and as
    the same shall become due and payable, whether at the Stated
    Maturity, by acceleration, call for redemption, purchase or
    otherwise, in accordance with the terms of such Note and of this
    Indenture. In case of the failure of the Issuer punctually to
    make any such payment, each Guarantor hereby jointly and
    severally agrees to cause such payment to be made punctually
    when and as the same shall become due and payable, whether at
    the Stated Maturity or by acceleration, call for redemption,
    purchase or otherwise, and as if such payment were made by the
    Issuer. The Note Guarantee extends to the Issuer’s
    repurchase obligations arising from a Change of Control pursuant
    to Section 4.11.



 



    Each Guarantor hereby jointly and severally agrees that its
    obligations hereunder shall be unconditional, irrespective of
    the validity, regularity or enforceability of such Note or this
    Indenture, the absence of any action to enforce the same, any
    exchange, release or non-perfection of any Lien on any
    collateral for, or any release or amendment or waiver of any
    term of any other Guarantee of, or any consent to departure from
    any requirement of any other Guarantee of all or any of the
    Notes, the effects of Bankruptcy Law applicable in the event of
    bankruptcy proceedings being opened with respect to the Issuer,
    of all or any portion of the claims of the Trustee or any of the
    Holders for payment of any of the Notes, any waiver or consent
    by the Holder of such Note or by the Trustee with respect to any
    provisions thereof or of this Indenture, the obtaining of any
    judgment against the Issuer or any action to enforce the same or
    any other circumstances which might otherwise constitute a legal
    or equitable discharge or defense of a guarantor. Each Guarantor
    hereby waives the benefits of diligence, presentment, demand for
    payment,




    

    46








 






    any requirement that the Trustee or any of the Holders protect,
    secure, perfect or insure any security interest in or other Lien
    on any property subject thereto or exhaust any right or take any
    action against the Issuer or any other Person or any collateral,
    filing of claims with a court in the event of insolvency or
    bankruptcy of the Issuer, any right to require a proceeding
    first against the Issuer, protest or notice with respect to such
    Note or the Indebtedness evidenced thereby and all demands
    whatsoever, and covenants that this Note Guarantee will not be
    discharged in respect of such Note except by complete
    performance of the obligations contained in such Note and in
    this Note Guarantee. Each Guarantor hereby agrees that, in the
    event of a default in payment of principal (or premium, if any)
    or interest (including Additional Amounts, if any) on such Note,
    whether at their Stated Maturity, by acceleration, call for
    redemption, purchase or otherwise, legal proceedings may be
    instituted by the Trustee on behalf of, or by, the Holder of
    such Note, subject to the terms and conditions set forth in this
    Indenture, directly against each Guarantor to enforce the Note
    Guarantee without first proceeding against the Issuer. Each
    Guarantor agrees that, to the extent permitted by applicable
    law, if, after the occurrence and during the continuance of an
    Event of Default, the Trustee or any of the Holders is prevented
    by applicable law from exercising its respective rights to
    accelerate the maturity of the Notes, to collect interest on the
    Notes, or to enforce or exercise any other right or remedy with
    respect to the Notes, or the Trustee or the Holders are
    prevented from taking any action to realize on any collateral,
    such Guarantor agrees to pay to the Trustee for the account of
    the Holders, upon demand therefor, the amount that would
    otherwise have been due and payable had such rights and remedies
    been permitted to be exercised by the Trustee or any of the
    Holders.



 



    No provision of the Note Guarantee or of this Indenture shall
    alter or impair the Note Guarantee of any Guarantor, which is
    absolute and unconditional, of the due and punctual payment of
    the principal of (and premium, if any) and interest (including
    Additional Amounts, if any) on the Note upon which such Note
    Guarantee is endorsed.



 



    Each Note Guarantee shall remain in full force and effect and
    continue to be effective should any petition be filed by or
    against the Issuer for liquidation or reorganization or
    equivalent proceeding under applicable law, should the Issuer
    become insolvent or make an assignment for the benefit of
    creditors or should a receiver or trustee be appointed for all
    or any significant part of the Issuer’s assets, or the
    equivalent of any of the foregoing under applicable law, and
    shall, to the fullest extent permitted by law, continue to be
    effective or be reinstated, as the case may be, if at any time
    payment and performance of the Notes, is, pursuant to applicable
    law, rescinded or reduced in amount, or must otherwise be
    restored or returned by any obligee on the Notes, whether as a
    voidable preference, fraudulent transfer, or as otherwise
    provided under similar laws affecting the rights of creditors
    generally or under applicable laws of the jurisdiction of
    formation of the Issuer, all as though such payment or
    performance had not been made. In the event that any payment, or
    any part thereof, is rescinded, reduced, restored or returned,
    the Notes shall, to the fullest extent permitted by law, be
    reinstated and deemed reduced only by such amount paid and not
    so rescinded, reduced, restored or returned.



 



    The Guarantors shall have the right to seek contribution from
    any non-paying Guarantor so long as the exercise of such right
    does not impair the rights of the Holders under the Note
    Guarantee.



 



    (b) Each Note Guarantee (other than the Company’s Note
    Guarantee) will be limited in amount to an amount not to exceed
    the maximum amount that can be guaranteed by the applicable
    Guarantor without rendering the Note Guarantee, as it relates to
    such Guarantor, voidable under applicable law relating to
    fraudulent conveyance or fraudulent transfer or similar laws
    affecting the rights of creditors generally or under applicable
    law of the jurisdiction of incorporation of such Guarantor.



 



    (c) In the case of Fresenius Medical Care Deutschland GmbH
    (“FMCD”), the following provisions apply:



 



    The Note Guarantee of FMCD will be limited if and to the extent
    payment under such Note Guarantee or the application of
    enforcement proceeds would cause such Guarantor’s net
    assets (Reinvermögen) calculated as the sum of the
    balance sheet positions shown under § 266(2)(A),
    (B) and (C) German Commercial Code
    (Handelsgesetzbuch), less the sum of the liabilities
    shown under the balance sheet positions pursuant to
    § 266(3)(B), (C) and (D) German Commercial
    Code to fall below the Guarantor’s registered share capital
    (Stammkapital). For the purposes of such calculation, the
    following adjustments will be made: (i) the amount of any
    increase of the registered share capital out of retained
    earnings (Kapitalerhöhung aus Gesellschaftsmitteln)
    after the Closing Date that has been effected without the prior
    consent of the Trustee shall be deducted




    

    47








 






    from the registered share capital; and (ii) liabilities
    incurred in violation of the provisions of the Notes and this
    Indenture shall be disregarded. In the event such
    Guarantor’s net assets fall below its registered share
    capital, such Guarantor, upon request of the Trustee will
    realize in due course, to the extent legally permitted, any and
    all of its assets that are shown in the balance sheet with a
    book value (Buchwert) that is significantly lower than
    the market value of the assets if the relevant assets are not
    necessary for such Guarantor’s business (nicht
    betriebsnotwendiges Vermögen).



 



    Section 10.2  Execution
    and Delivery of Note Guarantees.  The Note
    Guarantees to be endorsed on the Notes shall be in the form
    attached hereto as Exhibit C. Each Guarantor hereby
    agrees to execute its Note Guarantee, in the form attached
    hereto as Exhibit C, to be endorsed on each Note
    authenticated and delivered by the Trustee.



 



    The Note Guarantee shall be executed on behalf of the Company by
    two members of the Management Board of its General Partner and
    on behalf of any other Guarantor by such Person or Persons duly
    authorized by the Board of Directors or Management Board of such
    Guarantor. The signature of any or all of these Persons on the
    Note Guarantee may be manual or facsimile.



 



    A Note Guarantee bearing the manual or facsimile signature of
    individuals who were at any time the Responsible Officers of a
    Guarantor shall bind such Guarantor, notwithstanding that such
    individuals or any of them have ceased to hold such offices
    prior to the authentication and delivery of the Note on which
    such Note Guarantee is endorsed or did not hold such offices at
    the date of such Note Guarantee.



 



    The delivery of any Note by the Trustee, after the
    authentication thereof in accordance with this Indenture, shall
    constitute due delivery of the Note Guarantee endorsed thereon
    on behalf of the Guarantors. Each of the Guarantors hereby
    jointly and severally agrees that its Note Guarantee set forth
    in Section 10.1 shall remain in full force and effect
    notwithstanding any failure to endorse a Note Guarantee on any
    Note.



 



    Section 10.3  Guarantors
    May Consolidate, etc., on Certain
    Terms.  Except as set forth in
    Section 10.4 and in Article V hereof, nothing
    contained in this Indenture or in any of the Notes shall prevent
    any consolidation or merger of a Guarantor with or into the
    Company, the Issuer or another Guarantor or shall prevent any
    sale, transfer, assignment, lease, conveyance or other
    disposition of the property of a Guarantor as an entirety or
    substantially as an entirety to the Company, the Issuer or
    another Guarantor.



 



    Section 10.4  Release
    of Guarantors.  Subject to the limitations set
    forth in Sections 5.1 and 5.2 hereof,



 



    (a) Concurrently with any consolidation or merger of a
    Guarantor or any sale, transfer, assignment, lease, conveyance
    or other disposition of the property of a Guarantor as an
    entirety or substantially as an entirety, in each case as
    permitted by Sections 5.1, 5.2 and 10.3 hereof, and upon
    delivery by the Company or the Issuer to the Trustee of an
    Officers’ Certificate and an Opinion of Counsel to the
    effect that such consolidation, merger, sale, transfer,
    assignment, conveyance or other disposition was made in
    accordance with Sections 5.1, 5.2 and 10.3 hereof, the
    Trustee shall execute any documents reasonably required in order
    to acknowledge the release of such Guarantor from its
    obligations under its Note Guarantee endorsed on the Notes and
    under this Indenture. Any Guarantor not released from its
    obligations under its Note Guarantee endorsed on the Notes and
    under this Indenture shall remain liable for the full amount of
    principal of (premium, if any) and interest (including
    Additional Amounts, if any) on the Notes and for the other
    obligations of a Guarantor under its Note Guarantee endorsed on
    the Notes and under this Indenture. Concurrently with the
    defeasance of the Notes under Section 8.2 or satisfaction
    and discharge of this Indenture under Section 8.5 hereof,
    the Guarantors shall be released from all of their obligations
    under their Note Guarantees endorsed on the Notes and under this
    Indenture, without any action on the part of the Trustee or any
    Holder of Notes.



 



    (b) Upon the sale or other disposition (including by way of
    merger or consolidation) of any Guarantor or the sale,
    conveyance, transfer, assignment, lease or other disposition of
    all or substantially all the assets of a Guarantor pursuant to
    Section 5.1 hereof, such Guarantor shall automatically be
    released from all obligations under its Note Guarantees endorsed
    on the Notes and under this Indenture in accordance with
    Sections 5.1 and 5.2.




    

    48








 






    (c) At the time a Guarantor (other than the Company) is no
    longer a borrower or guarantor under the Credit Facility, such
    Guarantor will be released and relieved from all of its
    obligations under its Note Guarantee.



 




    ARTICLE XI

    



 




    MISCELLANEOUS
    



 



    Section 11.1  Notices.  Any
    notices or other communications required or permitted hereunder
    shall be in writing, and shall be sufficiently given if made by
    hand delivery, by telecopier or first-class mail, postage
    prepaid, addressed as follows:



 



         if to the Company or to FMCD, to
    it at:



 



              Else-Kröner
    Strasse 1




              61352
    Bad Homburg




              Germany




              Facsimile:
    011-49-6172-609-2280




              Attention:
    Chief Financial Officer



 



         if to the Issuer:



 



              FMC
    Finance III S.A.




              28-30,
    Val St. André,




              L-1128
    Luxembourg




              Facsimile:




              Attention:
    Mrs. Gabriele Dux



 



         if to FMCH:



 



              920
    Winter Street




              Waltham
    MA 02451-1457




              Facsimile:
    781 699-9713




              Attn:
    Ronald J. Kuerbitz, Esq.



 



         in each case, with a copy to:




              Fresenius
    Medical Care AG & Co. KGaA




              Else-Kröner
    Strasse 1




              61352
    Bad Homburg




              Germany




              Facsimile:
    011-49-6172-609-2422




              Attention:
    Dr. Rainer Runte



 



              if
    to the Trustee:



 



              U.S.
    Bank National Association




              225
    Asylum Street, 23rd Floor




              Hartford,
    CT 06103




              Attention:
    Elizabeth C. Hammer




              Telecopier:
    860-241-6897




              Telephone:
    860-241-6817



 



    Each of the Issuer and the Trustee by written notice to each
    other such Person may designate additional or different
    addresses for notices to such Person. Any notice or
    communication to the Issuer or the Trustee, shall be deemed to
    have been given or made as of the date so delivered if
    personally delivered; when receipt is acknowledged, if
    telecopied; and five (5) calendar days after mailing if
    sent by first class mail, postage prepaid (except that a notice
    of change of address shall not be deemed to have been given
    until actually received by the addressee).




    

    49








 






    Any notice or communication mailed to a Holder shall be mailed
    to such Person by first-class mail or other equivalent means at
    such Person’s address as it appears on the registration
    books of the Registrar and shall be sufficiently given to him if
    so mailed within the time prescribed.



 



    Failure to mail a notice or communication to a Holder or any
    defect in it shall not affect its sufficiency with respect to
    other Holders. If a notice or communication is mailed in the
    manner provided above, it is duly given, whether or not the
    addressee receives it.



 



    Notices regarding the Notes given to the Holders will be
    (a) sent to a leading newspaper having general circulation
    in New York (which is expected to be The Wall Street
    Journal)(and, if and so long as Notes are listed on the
    Luxembourg Stock Exchange and the rules of such Stock Exchange
    shall so require, published by the Issuer in a newspaper having
    general circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and (b) in the event the Notes
    are in the form of Definitive Notes, sent by the Issuer, by
    first-class mail, with a copy to the Trustee, to each Holder of
    the Notes at such Holder’s address as it appears on the
    registration books of the registrar. If and so long as such
    Notes are listed on any other securities exchange, notices will
    also be given by the Issuer in accordance with any applicable
    requirements of such securities exchange. If and so long as any
    Notes are represented by one or more Global Notes and ownership
    of Book-Entry Interests therein are shown on the records of DTC
    or any successor appointed by DTC at the request of the Issuer,
    notices will be delivered to DTC or such successor for
    communication to the owners of such Book-Entry Interests.
    Notices given by publication will be deemed given on the first
    date on which any of the required publications is made and
    notices given by first-class mail, postage prepaid, will be
    deemed given five calendar days after mailing.



 



    Section 11.2  Certificate
    and Opinion as to Conditions Precedent.  Upon
    any request or application by the Issuer to the Trustee or an
    Agent to take any action under this Indenture, the Issuer and
    the Guarantors shall furnish to the Trustee at the request of
    the Trustee:



 



    (1) an Officers’ Certificate, in form and substance
    reasonably acceptable to the Trustee (reasonableness to be
    determined objectively), stating that, in the opinion of the
    signers, all conditions precedent and covenants, if any,
    provided for in this Indenture relating to the proposed action
    have been satisfied or complied with; and



 



    (2) an Opinion of Counsel in form and substance reasonably
    acceptable to the Trustee or such Agent (reasonableness to be
    determined objectively) stating that, in the opinion of such
    counsel, all such conditions precedent and covenants have been
    satisfied or complied with.



 



    In any case where several matters are required to be certified
    by, or covered by an Opinion of Counsel of, any specified
    Person, it is not necessary that all such matters be certified
    by, or covered by the Opinion of Counsel of, only one such
    Person, or that they be so certified or covered by only one
    document, but one such Person may certify or give an Opinion of
    Counsel with respect to some matters and one or more such
    Persons as to other matters, and any such Person may certify or
    give an Opinion of Counsel as to such matters in one or several
    documents.



 



    Any certificate of a Responsible Officer of the Issuer may be
    based, insofar as it relates to legal matters, upon an Opinion
    of Counsel, unless such Responsible Officer knows, or in the
    exercise of reasonable care should know, that such Opinion of
    Counsel with respect to the matters upon which his certificate
    is based are erroneous. Any Opinion of Counsel may be based, and
    may state that it is so based, insofar as it relates to factual
    matters, upon a certificate of, or representations by, a
    Responsible Officer or Responsible Officers of the Issuer
    stating that the information with respect to such factual
    matters is in the possession of the Issuer, unless such counsel
    knows, or in the exercise of reasonable care should know, that
    the certificate or representations with respect to such matters
    are erroneous.



 



    Where any Person is required to make, give or execute two or
    more applications, requests, consents, certificates, statements,
    opinions or other instruments under this Indenture, they may,
    but need not, be consolidated and form one instrument.



 



    Section 11.3  Statements
    Required in Certificate or Opinion.  Each
    certificate or opinion with respect to compliance with a
    condition or covenant provided for in this Indenture shall
    include:



 



    (1) a statement that the Person making such certificate or
    opinion has read such covenant or condition;




    

    50








 






    (2) a brief statement as to the nature and scope of the
    examination or investigation upon which the statements or
    opinions contained in such certificate or opinion are based;



 



    (3) a statement that, in the opinion of such Person, such
    Person has made such examination or investigation as is
    necessary to enable such Person to express an informed opinion
    as to whether or not such covenant or condition has been
    complied with; and



 



    (4) a statement as to whether or not, in the opinion of
    each such Person, such condition or covenant has been complied
    with.



 



    Section 11.4  Rules
    by Trustee, Paying Agent, Registrar.  The
    Trustee, Paying Agent or Registrar may make reasonable rules for
    its functions.



 



    Section 11.5  Legal
    Holidays.  If a payment date is not a Business
    Day, payment may be made on the next succeeding day that is a
    Business Day, and no interest shall accrue for the intervening
    period.



 



    Section 11.6  Governing
    Law.  THIS INDENTURE AND THE NOTES, AND THE
    RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL
    BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
    THE STATE OF NEW YORK. THE NOTE GUARANTEES WILL BE GOVERNED
    BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
    NEW YORK EXCEPT THAT THE LIMITATIONS OF THE NOTE GUARANTEES
    EXPRESSED IN SECTIONS 10.1(c) HEREOF (AND THE EQUIVALENT
    PROVISION CONTAINED IN THE NOTE GUARANTEE ENDORSED ON THE
    NOTES) WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
    FEDERAL REPUBLIC OF GERMANY.



 



    Section 11.7  Submission
    to Jurisdiction.  To the fullest extent
    permitted by applicable law, each of the Issuer and the
    Guarantors irrevocably submits to the non-exclusive jurisdiction
    of any federal or state court in the Borough of Manhattan in the
    City of New York, County and State of New York, United States of
    America, in any suit or proceeding based on or arising under
    this Indenture or the Notes, and irrevocably agrees that all
    claims in respect of such suit or proceeding may be determined
    in any such court. Each of the Issuer and the Guarantors, to the
    fullest extent permitted by applicable law, irrevocably and
    fully waives the defense of an inconvenient forum to the
    maintenance of such suit or proceeding and irrevocably waives to
    the fullest extent it may effectively do so any objection which
    it may now or hereafter have to the laying of venue of any such
    proceeding, and each of the Issuer and the Guarantors hereby
    irrevocably consents to be served with notice and service of
    process by delivery or by registered mail with return receipt
    requested addressed to FMCH’s registered agent, which as of
    the date hereof is CT Corporation System, 111 Eighth Avenue, New
    York, NY 10011 (which service of process by registered mail
    shall be effective with respect to the Issuer and the Guarantors
    so long as such return receipt is obtained, or in the event of a
    refusal to sign such receipt any Holder or the Trustee is able
    to produce evidence of attempted delivery by such means). Each
    of the Issuer and the Guarantors further agrees that such
    service of process and written notice of such service to the
    Issuer and the Guarantors in the circumstances described above
    shall be deemed in every respect effective notice and service of
    process upon each of the Issuer and the Guarantors in any such
    action or proceeding. Nothing herein shall affect the right of
    any Person to serve process in any other manner permitted by
    law. Each of the Issuer and the Guarantors agrees that a final
    action in any such suit or proceeding shall be conclusive and
    may be enforced in other jurisdictions by suit on the judgment
    or in any other lawful manner. Notwithstanding the foregoing,
    each of the Issuer and the Guarantors hereby agrees that any
    action arising out of or based on this Indenture or the Notes
    may also be instituted in any competent court in Germany, and it
    expressly accepts the jurisdiction of any such court in any such
    action.



 



    Each of the Issuer and the Guarantors hereby irrevocably waives,
    to the extent permitted by law, any immunity to jurisdiction to
    which it may otherwise be entitled (including, without
    limitation, immunity to pre-judgment attachment, post-judgment
    attachment and execution) in any legal suit, action or
    proceeding against it arising out of or based on this Indenture
    or the Notes.



 



    The provisions of this Section 11.7 are intended to be
    effective upon the execution of this Indenture without any
    further action by the Issuer and the Gurantors and the
    introduction of a true copy of this Indenture into evidence
    shall be conclusive and final evidence as to such matters.




    

    51








 






    Section 11.8  No
    Personal Liability of Directors, Officers, Employees and
    Stockholders.  No director, officer, employee,
    incorporator or stockholder of the Issuer, Fresenius AG, or of
    the Board of Directors of the Company or the Guarantors, as
    such, shall have any liability for any obligations of the Issuer
    or any Guarantor under the Notes, this Indenture or the Note
    Guarantees or for any claim based on, in respect of, or by
    reason of, such obligations or their creation. Each Holder by
    accepting a Note waives and releases all such liability. The
    waiver and release are part of the consideration for issuance of
    the Notes and the Note Guarantees. Such waiver and release may
    not be effective to waive liabilities under the
    U.S. federal securities laws and it is the view of the SEC
    that such a waiver is against public policy. In addition, such
    waiver and release may not be effective under the laws of the
    Federal Republic of Germany.



 



    Section 11.9  Successors.  All
    agreements of the Issuer in this Indenture and the Notes and the
    Guarantors in this Indenture and the Note Guarantees shall bind
    their respective successors. All agreements of the Trustee in
    this Indenture shall bind its successors.



 



    Section 11.10  Counterpart
    Originals.  All parties hereto may sign any
    number of copies of this Indenture. Each signed copy or
    counterpart shall be an original, but all of them together shall
    represent one and the same agreement.



 



    Section 11.11  Severability.  In
    case any one or more of the provisions in this Indenture or in
    the Notes shall be held invalid, illegal or unenforceable, in
    any respect for any reason, the validity, legality and
    enforceability of any such provision in every other respect and
    of the remaining provisions shall not in any way be affected or
    impaired thereby, it being intended that all of the provisions
    hereof shall be enforceable to the full extent permitted by law.



 



    Section 11.12  Table
    of Contents, Headings, etc.  The Table of
    Contents, Cross-Reference Table and headings of the Articles and
    Sections of this Indenture have been inserted for convenience of
    reference only, are not to be considered a part of this
    Indenture and shall in no way modify or restrict any of the
    terms or provisions hereof.



 



    Section 11.13  Trust Indenture
    Act Controls.  If any provision of this
    Indenture limits, qualifies or conflicts with the duties imposed
    by TIA § 318(c), the imposed duties shall control.



 



    Section 11.14  Currency
    Indemnity.  The U.S. dollar (or any of
    its successor currencies) is the sole currency of account and
    payment for all sums payable by the Issuer under this Indenture.
    Any amount received or recovered in a currency other than the
    U.S. dollar in respect of the Notes (whether as a result
    of, or of the enforcement of, a judgment or order of a court of
    any jurisdiction, in the
    winding-up
    or dissolution of the Issuer, any Guarantor, any Subsidiary or
    otherwise) by the Holder in respect of any sum expressed to be
    due to it from the Issuer will constitute a discharge of the
    Issuer only to the extent of the U.S. dollar amount which
    the recipient is able to purchase with the amount so received or
    recovered in that other currency on the date of that receipt or
    recovery (or, if it is not possible to make that purchase on
    that date, on the first date on which it is possible to do so).
    If that U.S. dollar amount is less than the
    U.S. dollar amount expressed to be due to the recipient
    under any Note, the Issuer will indemnify the recipient against
    any loss sustained by it as a result. In any event the Issuer
    will indemnify the recipient against the cost of making any such
    purchase.



 



    For the purposes of this indemnity, it will be sufficient for
    the Holder to certify that it would have suffered a loss had an
    actual purchase of U.S. dollars been made with the amount
    so received in that other currency on the date of receipt or
    recovery (or, if a purchase of U.S. dollars on such date
    had not been practicable, on the first date on which it would
    have been practicable). These indemnities constitute a separate
    and independent obligation from the other obligations of the
    Issuer, will give rise to a separate and independent cause of
    action, will apply irrespective of any waiver granted by any
    holder and will continue in full force and effect despite any
    other judgment, order, claim or proof for a liquidated amount in
    respect of any sum due under any Note or any other judgment or
    order.




    

    52








 






    IN WITNESS WHEREOF, the parties hereto have caused this
    Indenture to be duly executed, as of the date first written
    above.



 



    FMC FINANCE III S.A.



 


			
	 	    By: 
	
    /s/  Gabriele
    Dux









    Name: Gabriele Dux



			
	 	    Title: 
	
    Director




 



    FRESENIUS MEDICAL CARE AG & CO. KGaA, a partnership
    limited by shares, represented by FRESENIUS MEDICAL CARE
    MANAGEMENT AG, its general partner



 


			
	 	    By: 
	
    /s/  Emanuele
    Gatti









    Name: Emanuele Gatti



			
	 	    Title: 
	
    Member of the Management Board




 


			
	 	    By: 
	
    /s/  Rainer
    Runte









    Name: Dr. Rainer Runte



			
	 	    Title: 
	
    Member of the Management Board




 



    FRESENIUS MEDICAL CARE HOLDINGS, INC.



 


			
	 	    By: 
	
    /s/  Mark
    Fawcett









    Name: Mark Fawcett



			
	 	    Title: 
	
    Assistant Treasurer





    

    53








 






    FRESENIUS MEDICAL CARE 

    DEUTSCHLAND GmbH



 


			
	 	    By: 
	
    /s/  Roberto
    Fusté









    Name: Roberto Fusté



			
	 	    Title: 
	
    Managing Director




 


			
	 	    By: 
	
    /s/  Rolf
    Groos









    Name: Dr. Rolf Groos



			
	 	    Title: 
	
    Managing Director




 



    U.S. BANK NATIONAL ASSOCIATION,

    as Trustee



 


			
	 	    By: 
	
    /s/  E.C.
    Hammer









    Name: Elizabeth C. Hammer



			
	 	    Title: 
	
    Vice President





    

    54








 







    EXHIBIT A




    TO THE INDENTURE



 




    [FORM OF
    FACE OF GLOBAL NOTE]



 


 




    [Global
    Note Legend]



 



    THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
    INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
    OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE
    DEPOSITORY TRUST COMPANY. THIS NOTE IS NOT
    EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
    OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
    EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
    AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
    NOTE AS A WHOLE TO THE DEPOSITORY TRUST COMPANY OR A
    NOMINEE OF THE DTC) MAY BE REGISTERED EXCEPT IN THE LIMITED
    CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



 




    [Private
    Placement Legend]



 



    THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
    U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
    “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
    OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST
    OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
    TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
    ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
    EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
    THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
    OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE
    “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO
    YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE AND THE LAST
    DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
    THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) ONLY
    (A) TO THE COMPANY OR ANY OF ITS RESPECTIVE SUBSIDIARIES,
    (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
    DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
    LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
    RULE 144A UNDER THE SECURITIES ACT
    (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES
    IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
    RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
    ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
    GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
    RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
    NON-U.S. PERSONS
    THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
    REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
    “ACCREDITED INVESTOR” WITHIN THE MEANING OF
    RULE 501(a)(1), (2), (3) OR (7) UNDER THE
    SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
    ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
    OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
    MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
    INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
    IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
    SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
    SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
    TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
    PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
    DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
    INFORMATION SATISFACTORY TO EITHER OF THEM. THIS LEGEND WILL BE
    REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
    RESTRICTION TERMINATION DATE.




    

    A-1








 







    FMC
    FINANCE III S.A.



 



    67/8% Senior
    Note due 2017



 




    Common Code
    No.:          
    



 




    CUSIP
    No.:          
    



 


	 	 	 
	

    No.          
    


	
 
	
    $          
    









 



    FMC FINANCE III S.A., a corporation organized under the laws of
    Luxembourg (the “Issuer”, which term includes any
    successor entity), for value received, promises to pay to
    Cede & Co. or its registered assigns upon surrender
    hereof the principal sum indicated on Schedule A hereof, on
    July 15, 2017.



 



    Interest Payment Dates: January 15 and July 15, commencing
    January 15, 2008



 



    Record Dates: January 1 and July 1 immediately preceding the
    Interest Payment Dates



 



    Reference is made to the further provisions of this Note
    contained herein, which will for all purposes have the same
    effect as if set forth at this place.



 



    IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
    manually or by facsimile by its duly authorized Responsible
    Officers.



 



    FMC FINANCE III S.A.



 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	





 








    This is one of the Notes referred to

    in the within-mentioned Indenture:




 



    U.S. BANK NATIONAL ASSOCIATION, as Trustee



 


		
	    By: 	
        









    Name: 



			
	 	    Title: 
	





 



    Dated:




    

    A-2








 







    [FORM OF
    REVERSE]



 



    FMC FINANCE III S.A.



 



    67/8% Senior
    Note due 2017



 



    1. Interest.  FMC FINANCE III S.A.,
    a corporation organized under the laws of Luxembourg (the
    “Issuer”), promises to pay interest on the principal
    amount of this Note at the rate and in the manner specified
    below. Interest on the Notes will accrue at
    67/8%
    per annum on the principal amount then outstanding, and be
    payable semi-annually in cash in arrears on each January 15 and
    July 15, or if any such day is not a Business Day, on the
    next succeeding Business Day, commencing January 15, 2008,
    to the Holder hereof. Notwithstanding any exchange of this Note
    for a Definitive Note during the period starting on a Record
    Date relating to such Definitive Note and ending on the
    immediately succeeding interest payment date, the interest due
    on such interest payment date shall be payable to the Person in
    whose name this Global Note is registered at the close of
    business on the Record Date for such interest. Interest on the
    Notes will accrue from the most recent date to which interest
    has been paid. Interest will be computed on the basis of a
    360-day year
    of twelve
    30-day
    months.



 



    The Issuer shall pay interest on overdue principal and on
    overdue installments of interest (without regard to any
    applicable grace periods) and on any Additional Amounts, from
    time to time on demand at the rate borne by the Notes. Any
    interest paid on this Note shall be increased to the extent
    necessary to pay Additional Amounts as set forth herein.



 



    2. Additional Amounts.  All
    payments made under or with respect to the Notes under the
    Indenture or pursuant to any Note Guarantee must be made free
    and clear of and without withholding or deduction for or on
    account of any present or future tax, duty, levy, impost,
    assessment or other governmental charge (including penalties,
    interest and other liabilities related thereto) imposed or
    levied by or on behalf of (1) the United States, Germany,
    Luxembourg, the United Kingdom or any political subdivision or
    governmental authority thereof or therein having the power to
    tax, (2) any jurisdiction from or through which payment on
    the Notes is made, or any political subdivision or governmental
    authority thereof or therein having the power to tax or
    (3) any other jurisdiction in which the payor is organized
    or otherwise considered to be a resident for tax purposes, or
    any political subdivision or governmental authority thereof or
    therein having the power to tax (each a “Relevant Taxing
    Jurisdiction”), collectively, “Taxes,” unless the
    Issuer or any Guarantor is required to withhold or deduct Taxes
    by law or by the interpretation or administration thereof by the
    relevant government authority or agency provided, however, that
    in determining what withholding is required by law for
    U.S. federal income and withholding tax purposes, the
    Issuer and any Guarantor shall be entitled to treat any payments
    on or in respect of the Notes as if the Notes were issued by a
    U.S. person as defined in section 7701(a)(30) of the
    Code. If the Issuer or any Guarantor is so required to withhold
    or deduct any amount for or on account of Taxes from any payment
    made under or with respect to the Notes, the Issuer or such
    Guarantor, as the case may be, will be required to pay such
    amount — “Additional Amounts” — as
    may be necessary so that the net amount (including Additional
    Amounts) received by each Holder after such withholding or
    deduction (including any withholding or deduction on such
    Additional Amounts) will not be less than the amount such Holder
    would have received if such Taxes had not been withheld or
    deducted; provided, however, that no Additional
    Amounts will be payable with respect to payments made to any
    Holder or beneficial owner to the extent such Taxes are imposed
    by reason of (i) its being or having been connected with
    the Relevant Taxing Jurisdiction or any political subdivision or
    governmental authority thereof or therein having the power to
    tax, otherwise than by the acquisition, ownership, holding,
    disposition or enforcement of the Notes or the receipt of
    payments thereunder, or (ii) such Holder or beneficial
    owner not cooperating with the Issuer or the Guarantors in
    completing any procedural formalities that it is legally
    eligible to complete and are necessary for the Issuer or the
    Guarantors to pay or obtain authorization to make payments
    without such Taxes (including, without limitation, providing
    prior to the receipt of any payment on or in respect of a Note a
    complete, correct and executed IRS
    Form W-8
    or W-9 or
    successor form, as applicable, with all appropriate
    attachments); provided, however, that for purposes of
    this obligation to pay Additional Amounts, the Issuer and any
    Guarantor shall be entitled, for U.S. federal income and
    withholding tax purposes, to treat any payments on or in respect
    of the Notes as if the Notes were issued by a U.S. person
    as defined in section 7701(a)(30) of the Code. Further, no
    Additional Amounts shall be payable with respect to (i) any
    Tax imposed by the United States or any political subdivision or
    governmental authority thereof or therein on interest by reason
    of any Holder or beneficial owner holding or owning, actually or




    

    A-3








 






    constructively, 10 percent or more of the total combined
    voting power of all classes of stock of the Issuer or any
    Guarantor entitled to vote or (ii) any Tax imposed by the
    United States or any political subdivi sion or governmental
    authority thereof or therein on interest by reason of any Holder
    or beneficial owner being a controlled foreign corporation that
    is a related person within the meaning of Section 864(d)(4)
    of the Code with respect to the Issuer or any Guarantor. The
    Issuer will also make such withholding or deduction and remit
    the full amount deducted or withheld to the relevant authority
    as and when required in accordance with applicable law. The
    Issuer will furnish to the Trustee, within 30 days after
    the date the payment of any Taxes is due under applicable law,
    certified copies of tax receipts evidencing such payment by the
    Issuer.



 



    Wherever in the Indenture or the Notes there are mentioned, in
    any context, (1) the payment of principal,
    (2) purchase prices in connection with a purchase of Notes
    under the Indenture or the Notes, (3) interest or
    (4) any other amount payable on or with respect to any of
    the Notes, such reference shall be deemed to include payment of
    Additional Amounts as described under this heading to the extent
    that, in such context, Additional Amounts are, were or would be
    payable in respect thereof.



 



    The Issuer will pay any present stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in Luxembourg (or any
    political subdivision thereof or therein) from the execution,
    delivery and registration of Notes upon original issuance and
    initial resale of the Notes or any other document or instrument
    referred to therein. If at any time the Issuer changes its place
    of organization to outside of Luxembourg or there is a new
    issuer organized outside of Luxembourg, the Issuer or new
    issuer, as applicable, will pay any stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in the jurisdiction in
    which the Issuer or new issuer is organized (or any political
    subdivision thereof or therein) and are payable by the Holders
    of the Notes in respect of the Notes or any other document or
    instrument referred to therein under any law, rule or regulation
    in effect at the time of such change, or in connection with, the
    enforcement of the Notes or any such other document or
    instrument.



 



    The foregoing obligations will survive any termination,
    defeasance or discharge of the Indenture. References in this
    section (“Additional Amounts”) to the Issuer or
    Guarantor shall apply to any successor(s) thereto.



 



    3.  Method of Payment.  The
    Issuer shall pay interest on the Notes (except defaulted
    interest) to the Person in whose name this Note is registered at
    the close of business on the Record Date for such interest.
    Holders must surrender Notes to a Paying Agent to collect
    principal payments. The Issuer shall pay principal and interest
    in U.S. dollars. Immediately available funds for the
    payment of the principal of (and premium, if any), interest and
    Additional Amounts, if any, on this Note due on any interest
    payment date, Maturity Date, Redemption Date or other
    repurchase date will be made available to the Paying Agent to
    permit the Paying Agent to pay such funds to the Holders on such
    respective dates.



 



    4.  Paying Agent and
    Registrar.  Initially, U.S. Bank National
    Association will act as Paying Agent and as Registrar. In the
    event that a Paying Agent or transfer agent is replaced, the
    Issuer will provide notice thereof (so long as the Notes are
    Global Notes) published in a leading newspaper having general
    circulation in New York City (which is expected to be The
    Wall Street Journal) (and, if and so long as the Notes are
    listed on the Luxembourg Stock Exchange and the rules of such
    stock exchange shall so require, published in a newspaper having
    a general circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and (in the case of Definitive Notes),
    in addition to such publication, mailed by first-class mail to
    each Holder’s registered address. The Issuer may change any
    Registrar without notice to the Holders. The Issuer, the Company
    or any of their Subsidiaries may, subject to certain exceptions,
    act in the capacity of Registrar or transfer agent.



 



    5.  Indenture.  The Issuer
    issued the Notes under an Indenture, dated as of July 2,
    2007 (the “Indenture”), among the Issuer, Fresenius
    Medical Care AG & Co. KGaA (the “Company”),
    Fresenius Medical Care Holdings, Inc. (“FMCH”),
    Fresenius Medical Care Deutschland GmbH (“FMCD” and
    together with the Company and FMCH, the “Guarantors”),
    and U.S. Bank National Association (the
    “Trustee”) as Trustee. This Note is one of a duly
    authorized issue of Notes (as defined in the Indenture) of the
    Issuer designated as its
    67/8% Senior
    Notes due 2017. The terms of the Notes include those stated in
    the Indenture. Notwithstanding anything to the contrary herein,
    the Notes are subject to all such terms, and Holders of Notes
    are referred to the Indenture for a statement of them. The Notes
    are general obligations of the Issuer. The Notes are not limited
    in aggregate principal amount and




    

    A-4








 






    Additional Notes (as defined in the Indenture) may be issued
    from time to time under the Indenture, in each case subject to
    the terms of the Indenture; provided that the aggregate
    principal amount of Notes that will be issued on the Closing
    Date (as defined in the Indenture) will not exceed $500,000,000.
    Each Holder, by accepting a Note, agrees to be bound by all of
    the terms and provisions of the Indenture, as the same may be
    amended from time to time.



 



    6.  Ranking.  The Notes will
    be senior unsecured obligations of the Issuer. The payment of
    the principal of, premium, if any, and interest on the Notes
    (and the Guarantees of such obligations under the Note
    Guarantees) will:



 


			
	 	    • 
	
    rank pari passu in right of payment with all other
    Indebtedness of the Issuer and the Guarantors, as applicable,
    that is not by its terms expressly subordinated to other
    Indebtedness of the Issuer and the Guarantors, as applicable;




 


			
	 	    • 
	
    rank senior in right of payment to all Indebtedness of the
    Issuer and the Guarantors, as applicable, that is, by its terms,
    expressly subordinated to the senior Indebtedness of the Issuer
    and the Guarantors, as applicable; and




 


			
	 	    • 
	
    be effectively subordinated to the Secured Indebtedness of the
    Issuer and the Guarantors, as applicable, to the extent of the
    value of the collateral securing such Indebtedness, and to the
    Indebtedness of the Subsidiaries that are not Guarantors of the
    Notes.




 



    7.  Note Guarantee.  As
    provided in the Indenture and subject to certain limitations set
    forth therein, the obligations of the Issuer under the Indenture
    and this Note are Guaranteed on a senior unsecured basis
    pursuant to Note Guarantees endorsed hereon. The Indenture
    provides that a Guarantor shall be released from its Note
    Guarantee upon compliance with certain conditions.



 



    8.  Optional Redemption.  The
    Issuer may redeem all or, from time to time, a part of the
    Notes, at its option, at a redemption price equal to 100% of the
    principal amount of the Notes plus accrued interest to the
    redemption date, plus the excess of:



 



    (a) as determined by the calculation agent (which shall
    initially be the Trustee), the sum of the present values of the
    remaining scheduled payments of principal and interest on the
    Notes being redeemed not including any portion of such payment
    of interest accrued on the date of redemption, from the
    redemption date to the maturity date, discounted to the
    redemption date on a semi-annual basis (assuming a
    360-day year
    consisting of twelve
    30-day
    months) at the Treasury Rate plus 50 basis points; over



 



    (b) 100% of the principal amount of the Notes being
    redeemed.



 



    If the optional redemption date is on or after an interest
    record date and on or before the related interest payment date,
    the accrued and unpaid interest, if any, will be paid to the
    Person in whose name the Note is registered at the close of
    business on such record date, and no additional interest will be
    payable to beneficial Holders whose Notes will be subject to
    redemption by the Issuer.



 



    In the case of any partial redemption, the Trustee will select
    the Notes for redemption in compliance with the requirements of
    the principal securities exchange, if any, on which the Notes
    are listed or, if the Notes are not listed, then by lot, on a
    pro rata basis, or by such other method as the Trustee in its
    sole discretion will deem to be fair and appropriate, although
    no Note of $75,000 in original principal amount or less will be
    redeemed in part. If any Note is to be redeemed in part only,
    the notice of redemption relating to that Note will state the
    portion of the principal amount thereof to be redeemed. A new
    Note in principal amount equal to the unredeemed portion thereof
    will be issued and delivered to the Trustee, or in the case of
    Definitive Notes, issued in the name of the Holder thereof upon
    cancellation of the original Note.



 



    9.  Special Tax
    Redemption.  The Issuer is entitled to redeem
    the Notes, at its option, at any time in whole but not in part,
    upon not less than 30 nor more than 60 days’ notice,
    at 100% of the principal amount of the Notes, plus accrued and
    unpaid interest (if any) to the date of redemption (a “Tax
    Redemption Date”) (subject to the right of Holders of
    record on the relevant record date to receive interest due on
    the relevant interest payment date), in the event the Issuer has
    become or would become obligated to pay, on the next date on
    which any amount would be payable with respect to the Notes, any
    additional amounts as a result of:



 



    (a) a change in or an amendment to the laws (including any
    regulations promulgated under such laws) of any Relevant Taxing
    Jurisdiction; or




    

    A-5








 






    (b) any change in or amendment to any official position
    regarding the application, administration or interpretation of
    such laws, treaties, regulations or rulings (including a
    holding, judgment or order by a court of competent jurisdiction);



 



    which change or amendment to such laws or official position is
    announced and becomes effective on or after the date of issuance
    of the Notes; provided that the Issuer determines, in its
    reasonable judgment, that the obligation to pay such additional
    amounts cannot be avoided by the use of reasonable measures
    available to it.



 



    Notice of any such redemption must be given within 270 days
    of the earlier of the announcement or effectiveness of any such
    change.



 



    10.  Notice of
    Redemption.  Notice of redemption will be
    given at least 30 days but not more than 60 days
    before the Redemption Date or Tax Redemption Date, as
    the case may be, (i) so long as the Notes are in global
    form, by publishing in a leading newspaper having a general
    circulation in New York (which is expected to be The Wall
    Street Journal) (and, if and so long as the Notes are listed
    on the Luxembourg Stock Exchange and the rules of such stock
    exchange shall so require, a newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and notify the Holders, the Trustee
    and the Luxembourg Stock Exchange, if applicable and
    (ii) in the case of Definitive Notes, in addition to such
    publication, by mailing first-class mail to each Holder’s
    registered address. Notes in denominations of $75,000 may be
    redeemed only in whole. The Trustee may select for redemption
    portions (equal to $75,000 or any integral multiple of $1,000 in
    excess thereof) of the principal of Notes that have
    denominations larger than $75,000.



 



    Except as set forth in the Indenture, from and after any
    Redemption Date or Tax Redemption Date, as the case
    may be, if monies for the redemption of the Notes called for
    redemption shall have been deposited with the Paying Agent for
    redemption on such Redemption Date or Tax
    Redemption Date, as the case may be, then, unless the
    Issuer defaults in the payment of such Redemption Price,
    the Notes called for redemption will cease to bear interest and
    Additional Amounts, if any, and the only right of the Holders of
    such Notes will be to receive payment of the
    Redemption Price.



 



    11.  Change of Control.  Each
    Holder of the Notes, upon the occurrence of a Change of Control
    Triggering Event, will have the right to require that the Issuer
    repurchase such Holder’s Notes, at a purchase price in cash
    equal to 101% of the principal amount thereof plus accrued and
    unpaid interest, if any, to the date of purchase (subject to the
    right of Holders of record on the relevant record date to
    receive interest due on the relevant interest payment date).
    Holders of Notes that are subject to an offer to purchase will
    receive a Change of Control offer from the Company prior to any
    related Change of Control payment date and may elect to have
    such Notes purchased by completing the form entitled
    “Option of Holder to Elect Purchase” appearing below.



 



    12.  Denominations; Form.  The
    Global Notes are in registered global form, without coupons, in
    denominations of $75,000 and integral multiples of $1,000 in
    excess thereof.



 



    13.  Persons Deemed
    Owners.  The registered Holder of this Note
    shall be treated as the owner of it for all purposes, subject to
    the terms of the Indenture.



 



    14.  Unclaimed Funds.  If
    funds for the payment of principal, interest, premium or
    Additional Amounts remain unclaimed for two years, the Trustee
    and the Paying Agents will repay the funds to the Issuer at its
    written request. After that, all liability of the Trustee and
    such Paying Agents with respect to such funds shall cease.



 



    15.  Legal Defeasance and Covenant
    Defeasance.  The Issuer may be discharged from
    its obligations under the Indenture and the Notes except for
    certain provisions thereof (“Legal Defeasance”), and
    may be discharged from its obligations to comply with certain
    covenants contained in the Indenture (“Covenant
    Defeasance”), in each case upon satisfaction of certain
    conditions specified in the Indenture.



 



    16.  Amendment; Supplement;
    Waiver.  Subject to certain exceptions
    specified in the Indenture, the Indenture or the Notes may be
    amended or supplemented with the written consent of the Holders
    of at least a majority in principal amount of the Notes then
    outstanding, and any existing Default or Event of Default or
    compliance with any provision of the Indenture or the Notes may
    be waived with the consent of the Holders of a majority in
    principal amount of the Notes then outstanding.




    

    A-6








 






    17.  Restrictive
    Covenants.  The Indenture imposes certain
    covenants that, among other things, limit the ability of the
    Issuer, the Company, the Guarantors and their Subsidiaries to
    incur additional Indebtedness, to incur additional Liens, to
    enter into Sale and Leaseback Transactions and enter into
    certain consolidations or mergers. The limitations are subject
    to a number of important qualifications and exceptions. The
    Issuer must annually report to the Trustee on compliance with
    such limitations.



 



    18.  Successors.  When a
    successor assumes all the obligations of its predecessor under
    the Notes and the Indenture in accordance with the terms of the
    Indenture, the predecessor will be released from those
    obligations.



 



    19.  Defaults and
    Remedies.  If an Event of Default (other than
    an Event of Default specified in clause (7) of
    Section 6.1 of the Indenture) occurs and is continuing, the
    Trustee or the Holders of at least 25% in principal amount of
    the then outstanding Notes may declare all the Notes to be due
    and payable immediately in the manner and with the effect
    provided in the Indenture. Holders of Notes may not enforce the
    Indenture or the Notes except as provided in the Indenture. The
    Trustee is not obligated to enforce the Indenture or the Notes
    unless it has received full indemnity. The Indenture permits,
    subject to certain limitations therein provided, Holders of a
    majority in aggregate principal amount of the Notes then
    outstanding to direct the Trustee in its exercise of any trust
    or power. The Trustee may withhold from Holders of Notes notice
    of any continuing Default or Event of Default (except a Default
    in payment of principal, premium, interest and Additional
    Amounts, if any, including an accelerated payment) if it
    determines that withholding notice is in their interest.



 



    20.  Trustee Dealings with
    Issuer.  The Trustee under the Indenture, in
    its individual or any other capacity, may become the owner or
    pledgee of Notes and may otherwise deal with the Company, its
    Subsidiaries or their respective Affiliates as if it were not
    the Trustee.



 



    21.  No Recourse Against
    Others.  No director, officer, employee,
    incorporator or stockholder of the Issuer, Fresenius AG, or of
    the Board of Directors of the Company or the Guarantors, as
    such, shall have any liability for any obligations of the Issuer
    or any Guarantor under the Notes, the Indenture or the Note
    Guarantees or for any claim based on, in respect of, or by
    reason of, such obligations or their creation. Each Holder by
    accepting a Note waives and releases all such liability. The
    waiver and release are part of the consideration for issuance of
    the Notes and the Note Guarantees. Such waiver and release may
    not be effective to waive liabilities under the
    U.S. federal securities laws and it is the view of the SEC
    that such a waiver is against public policy. In addition, such
    waiver and release may not be effective under the laws of the
    Federal Republic of Germany. The waiver and release are part of
    the consideration for issuance of the Notes.



 



    22.  Authentication.  This
    Note shall not be valid until the Trustee or authenticating
    agent signs the certificate of authentication on this Note.



 



    23.  Abbreviations and Defined
    Terms.  Customary abbreviations may be used in
    the name of a Holder of a Note or an assignee, such as: TEN COM
    (= tenants in common), TEN ENT (= tenants by the entireties), JT
    TEN (= joint tenants with right of survivorship and not as
    tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
    Gifts to Minors Act). Unless otherwise defined herein, terms
    defined in the Indenture are used herein as defined therein.



 



    24.  CUSIP Numbers.  The
    Issuer will cause the CUSIP number to be printed on the Notes as
    a convenience to the Holders of the Notes. No representation is
    made as to the accuracy of such numbers as printed on the Notes
    and reliance may be placed only on the other identification
    numbers printed hereon.



 



    25.  Governing Law.  THIS
    NOTE AND THE INDENTURE, AND THE RIGHTS AND DUTIES OF THE
    PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
    CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
    THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN
    ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK EXCEPT
    CERTAIN MATTERS CONCERNING LIMITATION THEREOF WILL BE CONSTRUED
    IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.




    

    A-7








 







    SCHEDULE A

    



 




    SCHEDULE OF
    PRINCIPAL AMOUNT



 



    The initial principal amount at maturity of this Note shall be
    $[principal amount]. The following decreases/increases in the
    principal amount at maturity of this Note have been made:



 


	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Total Principal

    
	
 
	
    Notation

    

	
 
	
 
	
 
	
 
	
 
	
 
	
    Amount

    
	
 
	
    Made by

    

	
    Date of

    
	
 
	
    Decrease in

    
	
 
	
    Increase in

    
	
 
	
    Following Such

    
	
 
	
    or on

    

	
    Decrease/

    
	
 
	
    Principal

    
	
 
	
    Principal

    
	
 
	
    Decrease/

    
	
 
	
    Behalf of

    

	

    Increase


	
 
	

    Amount


	
 
	

    Amount


	
 
	

    Increase


	
 
	

    Trustee












    

    A-8








 







    OPTION OF
    HOLDER TO ELECT PURCHASE
    



 



    If you want to elect to have this Note purchased by the Issuer
    pursuant to Section 4.11 of the Indenture, check the box
    below:



 



    o
    



 


			
	 	    If you want to elect to have only part of this Note purchased by
    the Issuer pursuant to Section 4.11 of the Indenture, state
    the amount: $ 
	
    
    




 


		
	    Date: 	
    

    




 


		
	    Your Signature: 	
    

    





    (Sign exactly as your name appears on the other side of this
    Note)



 


		
	    Signature Guarantee: 	
    

    





    Participant in a recognized Signature Guarantee Medallion Program




    (or other signature guarantor program reasonably acceptable to
    the Trustee)




    

    A-9








 





 




    EXHIBIT B

    TO THE INDENTURE



 




    [FORM OF
    FACE OF DEFINITIVE NOTE]



 



    THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF
    THE INDENTURE HEREINAFTER REFERRED TO.



 




    [Private
    Placement Legend]



 



    THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
    U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
    “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
    OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST
    OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
    TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
    ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
    EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
    THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
    OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE
    “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO
    YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE AND THE LAST
    DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
    THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) ONLY
    (A) TO THE COMPANY OR ANY OF ITS RESPECTIVE SUBSIDIARIES,
    (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
    DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
    LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
    RULE 144A UNDER THE SECURITIES ACT
    (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES
    IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
    RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
    ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
    GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
    RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
    NON-U.S. PERSONS
    THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
    REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
    “ACCREDITED INVESTOR” WITHIN THE MEANING OF
    RULE 501(a)(1), (2), (3) OR (7) UNDER THE
    SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
    ACQUIRING THE NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
    OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
    MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
    INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
    IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
    SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
    SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
    TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
    PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
    DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
    INFORMATION SATISFACTORY TO EITHER OF THEM. THIS LEGEND WILL BE
    REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
    RESTRICTION TERMINATION DATE.



 


 




    FMC
    FINANCE III S.A.

    



 




    67/8% Senior
    Note due 2017
    



 




    Common Code
    No.:          

    



 




    CUSIP
    No.:          
    



 


	 	 	 
	

    No.          
    


	
 
	
    $          
    









 



    FMC FINANCE III S.A., a corporation organized under the laws of
    Luxembourg (the “Issuer”, which term includes any
    successor entity), for value received, promises to pay to
    Cede & Co. or its registered assigns upon surrender
    hereof the principal sum of $     , on
    July 15, 2017.



 



    Interest Payment Dates: January 15 and July 15,
    commencing January 15, 2008



 



    Record Dates: January 1 and July 1 immediately preceding
    the related Interest Payment Dates



 



    Reference is made to the further provisions of this Note
    contained herein, which will for all purposes have the same
    effect as if set forth at this place.













 






    IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
    manually or by facsimile by its duly authorized Responsible
    Officers.



 



    FMC FINANCE III S.A.



 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	





 



    This is one of the Notes referred to




    in the within-mentioned Indenture:



 



    U.S. BANK NATIONAL ASSOCIATION, as Trustee



 


			
	    By: 
	
        

	 




    
    ­
    ­
    




    Name: 



				
	 	    Title: 
	

	 



 



    Dated:




    

    B-2








 







    [FORM OF
    REVERSE]



 



    FMC FINANCE III S.A.



 



    67/8% Senior
    Note due 2017



 



    1.  Interest.  FMC FINANCE III
    S.A., a corporation organized under the laws of Luxembourg (the
    “Issuer”), promises to pay interest on the principal
    amount of this Note at the rate and in the manner specified
    below. Interest on the Notes will accrue at 6% per annum on the
    principal amount then outstanding, and be payable semi-annually
    in cash in arrears on each January 15 and July 15, or if
    any such day is not a Business Day, on the next succeeding
    Business Day, commencing January 15, 2008, to the Holder
    hereof. Notwithstanding any exchange of this Note for a
    Definitive Note during the period starting on a Record Date
    relating to such Definitive Note and ending on the immediately
    succeeding interest payment date, the interest due on such
    interest payment date shall be payable to the Person in whose
    name this Global Note is registered at the close of business on
    the Record Date for such interest. Interest on the Notes will
    accrue from the most recent date to which interest has been
    paid. Interest will be computed on the basis of a
    360-day year
    of twelve
    30-day
    months.



 



    The Issuer shall pay interest on overdue principal and on
    overdue installments of interest (without regard to any
    applicable grace periods) and on any Additional Amounts, from
    time to time on demand at the rate borne by the Notes. Any
    interest paid on this Note shall be increased to the extent
    necessary to pay Additional Amounts as set forth herein.



 



    2.  Additional Amounts.  All
    payments made under or with respect to the Notes under the
    Indenture or pursuant to any Note Guarantee must be made free
    and clear of and without withholding or deduction for or on
    account of any present or future tax, duty, levy, impost,
    assessment or other governmental charge (including penalties,
    interest and other liabilities related thereto) imposed or
    levied by or on behalf of (1) the United States, Germany,
    Luxembourg, the United Kingdom or any political subdivision or
    governmental authority thereof or therein having the power to
    tax, (2) any jurisdiction from or through which payment on
    the Notes is made, or any political subdivision or governmental
    authority thereof or therein having the power to tax or
    (3) any other jurisdiction in which the payor is organized
    or otherwise considered to be a resident for tax purposes, or
    any political subdivision or governmental authority thereof or
    therein having the power to tax (each a “Relevant Taxing
    Jurisdiction”), collectively, “Taxes,” unless the
    Issuer or any Guarantor is required to withhold or deduct Taxes
    by law or by the interpretation or administration thereof by the
    relevant government authority or agency provided, however, that
    in determining what withholding is required by law for
    U.S. federal income and withholding tax purposes, the
    Issuer and any Guarantor shall be entitled to treat any payments
    on or in respect of the Notes as if the Notes were issued by a
    U.S. person as defined in section 7701(a)(30) of the
    Code. If the Issuer or any Guarantor is so required to withhold
    or deduct any amount for or on account of Taxes from any payment
    made under or with respect to the Notes, the Issuer or such
    Guarantor, as the case may be, will be required to pay such
    amount — “Additional Amounts” — as
    may be necessary so that the net amount (including Additional
    Amounts) received by each Holder after such withholding or
    deduction (including any withholding or deduction on such
    Additional Amounts) will not be less than the amount such Holder
    would have received if such Taxes had not been withheld or
    deducted; provided, however, that no Additional
    Amounts will be payable with respect to payments made to any
    Holder or beneficial owner to the extent such Taxes are imposed
    by reason of (i) its being or having been connected with
    the Relevant Taxing Jurisdiction or any political subdivision or
    governmental authority thereof or therein having the power to
    tax, otherwise than by the acquisition, ownership, holding,
    disposition or enforcement of the Notes or the receipt of
    payments thereunder, or (ii) such Holder or beneficial
    owner not cooperating with the Issuer or the Guarantors in
    completing any procedural formalities that it is legally
    eligible to complete and are necessary for the Issuer or the
    Guarantors to pay or obtain authorization to make payments
    without such Taxes (including, without limitation, providing
    prior to the receipt of any payment on or in respect of a Note a
    complete, correct and executed IRS
    Form W-8
    or W-9 or
    successor form, as applicable, with all appropriate
    attachments); provided, however, that for purposes of
    this obligation to pay Additional Amounts, the Issuer and any
    Guarantor shall be entitled, for U.S. federal income and
    withholding tax purposes, to treat any payments on or in respect
    of the Notes as if the Notes were issued by a U.S. person
    as defined in section 7701(a)(30) of the Code. Further, no
    Additional Amounts shall be payable with respect to (i) any
    Tax imposed by the United States or any political subdivision or
    governmental authority thereof or therein on interest by reason
    of any Holder or beneficial owner holding or owning, actually or
    constructively, 10 percent or more of the total combined
    voting power of all classes of stock of the Issuer or any




    

    B-3








 






    Guarantor entitled to vote or (ii) any Tax imposed by the
    United States or any political subdivision or governmental
    authority thereof or therein on interest by reason of any Holder
    or beneficial owner being a controlled foreign corporation that
    is a related person within the meaning of Section 864(d)(4)
    of the Code with respect to the Issuer or any Guarantor. The
    Issuer will also make such withholding or deduction and remit
    the full amount deducted or withheld to the relevant authority
    as and when required in accordance with applicable law. The
    Issuer will furnish to the Trustee, within 30 days after
    the date the payment of any Taxes is due under applicable law,
    certified copies of tax receipts evidencing such payment by the
    Issuer.



 



    Wherever in the Indenture or the Notes there are mentioned, in
    any context, (1) the payment of principal,
    (2) purchase prices in connection with a purchase of Notes
    under the Indenture or the Notes, (3) interest or
    (4) any other amount payable on or with respect to any of
    the Notes, such reference shall be deemed to include payment of
    Additional Amounts as described under this heading to the extent
    that, in such context, Additional Amounts are, were or would be
    payable in respect thereof.



 



    The Issuer will pay any present stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in Luxembourg (or any
    political subdivision thereof or therein) from the execution,
    delivery and registration of Notes upon original issuance and
    initial resale of the Notes or any other document or instrument
    referred to therein. If at any time the Issuer changes its place
    of organization to outside of Luxembourg or there is a new
    issuer organized outside of Luxembourg, the Issuer or new
    issuer, as applicable, will pay any stamp, court or documentary
    taxes, or any other excise, property or similar taxes, charges
    or levies (including any penalties, interest or other
    liabilities related thereto) which arise in the jurisdiction in
    which the Issuer or new issuer is organized (or any political
    subdivision thereof or therein) and are payable by the Holders
    of the Notes in respect of the Notes or any other document or
    instrument referred to therein under any law, rule or regulation
    in effect at the time of such change, or in connection with, the
    enforcement of the Notes or any such other document or
    instrument.



 



    The foregoing obligations will survive any termination,
    defeasance or discharge of the Indenture. References in this
    section (“Additional Amounts”) to the Issuer or
    Guarantor shall apply to any successor(s) thereto.



 



    3.  Method of Payment.  The
    Issuer shall pay interest on the Notes (except defaulted
    interest) to the Person in whose name this Note is registered at
    the close of business on the Record Date for such interest.
    Holders must surrender Notes to a Paying Agent to collect
    principal payments. The Issuer shall pay principal and interest
    in U.S. dollars. Immediately available funds for the
    payment of the principal of (and premium, if any), interest and
    Additional Amounts, if any, on this Note due on any interest
    payment date, Maturity Date, Redemption Date or other
    repurchase date will be made available to the Paying Agent to
    permit the Paying Agent to pay such funds to the Holders on such
    respective dates.



 



    4.  Paying Agent and
    Registrar.  Initially, U.S. Bank National
    Association will act as Paying Agent and as Registrar. In the
    event that a Paying Agent or transfer agent is replaced, the
    Issuer will provide notice thereof (so long as the Notes are
    Global Notes) published in a leading newspaper having general
    circulation in New York City (which is expected to be The
    Wall Street Journal) (and, if and so long as the Notes are
    listed on the Luxembourg Stock Exchange and the rules of such
    stock exchange shall so require, a newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and (in the case of Definitive Notes),
    in addition to such publication, mailed by first-class mail to
    each Holder’s registered address. The Issuer may change any
    Registrar without notice to the Holders. The Issuer, the Company
    or any of their Subsidiaries may, subject to certain exceptions,
    act in the capacity of Registrar or transfer agent.



 



    5.  Indenture.  The Issuer
    issued the Notes under an Indenture, dated as of July 2,
    2007 (the “Indenture”), among the Issuer, Fresenius
    Medical Care AG & Co. KGaA (the “Company”),
    Fresenius Medical Care Holdings, Inc. (“FMCH”),
    Fresenius Medical Care Deutschland GmbH (“FMCD” and
    together with the Company and FMCH, the “Guarantors”),
    and U.S. Bank National Association (the
    “Trustee”) as Trustee. This Note is one of a duly
    authorized issue of Notes (as defined in the Indenture) of the
    Issuer designated as its
    67/8% Senior
    Notes due 2017. The terms of the Notes include those stated in
    the Indenture. Notwithstanding anything to the contrary herein,
    the Notes are subject to all such terms, and Holders of Notes
    are referred to the Indenture for a statement of them. The Notes
    are general obligations of the Issuer. The Notes are not limited
    in aggregate principal amount and Additional Notes (as defined
    in the Indenture) may be issued from time to time under the
    Indenture, in each case




    

    B-4








 






    subject to the terms of the Indenture; provided that the
    aggregate principal amount of Notes that will be issued on the
    Closing Date (as defined in the Indenture) will not exceed
    $500,000,000. Each Holder, by accepting a Note, agrees to be
    bound by all of the terms and provisions of the Indenture, as
    the same may be amended from time to time.



 



    6.  Ranking.  The Notes will
    be senior unsecured obligations of the Issuer. The payment of
    the principal of, premium, if any, and interest on the Notes and
    the Guarantees of such obligations under the Note Guarantees)
    will:



 


			
	 	    • 
	
    rank pari passu in right of payment with all other
    Indebtedness of the Issuer and the Guarantors, as applicable,
    that is not by its terms expressly subordinated to other
    Indebtedness of the Issuer and the Guarantors, as applicable;

	 
	 	    • 
	
    rank senior in right of payment to all Indebtedness of the
    Issuer and the Guarantors, as applicable, that is, by its terms,
    expressly subordinated to the senior Indebtedness of the Issuer
    and the Guarantors, as applicable; and

	 
	 	    • 
	
    be effectively subordinated to the Secured Indebtedness of the
    Issuer and the Guarantors, as applicable, to the extent of the
    value of the collateral securing such Indebtedness, and to the
    Indebtedness of the Subsidiaries that are not Guarantors of the
    Notes.




 



    7.  Note Guarantee.  As
    provided in the Indenture and subject to certain limitations set
    forth therein, the obligations of the Issuer under the Indenture
    and this Note are Guaranteed on a senior unsecured basis
    pursuant to Note Guarantees endorsed hereon. The Indenture
    provides that a Guarantor shall be released from its Note
    Guarantee upon compliance with certain conditions.



 



    8.  Optional Redemption.  The
    Issuer may redeem all or, from time to time, a part of the
    Notes, at its option, at a redemption price equal to 100% of the
    principal amount of the Notes plus accrued interest to the
    redemption date, plus the excess of:



 



    (a) as determined by the calculation agent (which shall
    initially be the Trustee), the sum of the present values of the
    remaining scheduled payments of principal and interest on the
    Notes being redeemed not including any portion of such payment
    of interest accrued on the date of redemption, from the
    redemption date to the maturity date, discounted to the
    redemption date on a semi-annual basis (assuming a
    360-day year
    consisting of twelve
    30-day
    months) at the Treasury Rate plus 50 basis points; over



 



    (b) 100% of the principal amount of the Notes being
    redeemed.



 



    If the optional redemption date is on or after an interest
    record date and on or before the related interest payment date,
    the accrued and unpaid interest, if any, will be paid to the
    Person in whose name the Note is registered at the close of
    business on such record date, and no additional interest will be
    payable to beneficial Holders whose Notes will be subject to
    redemption by the Issuer.



 



    In the case of any partial redemption, the Trustee will select
    the Notes for redemption in compliance with the requirements of
    the principal securities exchange, if any, on which the Notes
    are listed or, if the Notes are not listed, then by lot, on a
    pro rata basis, or by such other method as the Trustee in its
    sole discretion will deem to be fair and appropriate, although
    no Note of $75,000 in original principal amount or less will be
    redeemed in part. If any Note is to be redeemed in part only,
    the notice of redemption relating to that Note will state the
    portion of the principal amount thereof to be redeemed. A new
    Note in principal amount equal to the unredeemed portion thereof
    will be issued and delivered to the Trustee, or in the case of
    Definitive Notes, issued in the name of the Holder thereof upon
    cancellation of the original Note.



 



    9.  Special Tax
    Redemption.  The Issuer is entitled to redeem
    the Notes, at its option, at any time in whole but not in part,
    upon not less than 30 nor more than 60 days’ notice,
    at 100% of the principal amount of the Notes, plus accrued and
    unpaid interest (if any) to the date of redemption (a “Tax
    Redemption Date”) (subject to the right of Holders of
    record on the relevant record date to receive interest due on
    the relevant interest payment date), in the event the Issuer has
    become or would become obligated to pay, on the next date on
    which any amount would be payable with respect to the Notes, any
    additional amounts as a result of:



 



    (a) a change in or an amendment to the laws (including any
    regulations promulgated under such laws) of any Relevant Taxing
    Jurisdiction; or




    

    B-5








 






    (b) any change in or amendment to any official position
    regarding the application, administration or interpretation of
    such laws, treaties, regulations or rulings (including a
    holding, judgment or order by a court of competent jurisdiction);



 



    which change or amendment to such laws or official position is
    announced and becomes effective on or after the date of issuance
    of the Notes; provided that the Issuer determines, in its
    reasonable judgment, that the obligation to pay such additional
    amounts cannot be avoided by the use of reasonable measures
    available to it.



 



    Notice of any such redemption must be given within 270 days
    of the earlier of the announcement or effectiveness of any such
    change.



 



    10.  Notice of
    Redemption.  Notice of redemption will be
    given at least 30 days but not more than 60 days
    before the Redemption Date or Tax Redemption Date, as
    the case may be, (i) so long as the Notes are in global
    form, by publishing in a leading newspaper having a general
    circulation in New York (which is expected to be The Wall
    Street Journal) (and, if and so long as the Notes are listed
    on the Luxembourg Stock Exchange and the rules of such stock
    exchange shall so require, a newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort)) and notify the Holders, the Trustee
    and the Luxembourg Stock Exchange, if applicable and
    (ii) in the case of Definitive Notes, in addition to such
    publication, by mailing first-class mail to each Holder’s
    registered address. Notes in denominations of $75,000 may be
    redeemed only in whole. The Trustee may select for redemption
    portions (equal to $75,000 or any integral multiple of $1,000 in
    excess thereof) of the principal of Notes that have
    denominations larger than $75,000.



 



    Except as set forth in the Indenture, from and after any
    Redemption Date or Tax Redemption Date, as the case
    may be, if monies for the redemption of the Notes called for
    redemption shall have been deposited with the Paying Agent for
    redemption on such Redemption Date or Tax
    Redemption Date, as the case may be, then, unless the
    Issuer defaults in the payment of such Redemption Price,
    the Notes called for redemption will cease to bear interest and
    Additional Amounts, if any, and the only right of the Holders of
    such Notes will be to receive payment of the
    Redemption Price.



 



    11.  Change of Control.  Each
    Holder of the Notes, upon the occurrence of a Change of Control
    Triggering Event, will have the right to require that the Issuer
    repurchase such Holder’s Notes, at a purchase price in cash
    equal to 101% of the principal amount thereof plus accrued and
    unpaid interest, if any, to the date of purchase (subject to the
    right of Holders of record on the relevant record date to
    receive interest due on the relevant interest payment date).
    Holders of Notes that are subject to an offer to purchase will
    receive a Change of Control offer from the Company prior to any
    related Change of Control payment date and may elect to have
    such Notes purchased by completing the form entitled
    “Option of Holder to Elect Purchase” appearing below.



 



    12.  Denominations; Form.  The
    Global Notes are in registered global form, without coupons, in
    denominations of $75,000 and integral multiples of $1,000 in
    excess thereof.



 



    13.  Persons Deemed
    Owners.  The registered Holder of this Note
    shall be treated as the owner of it for all purposes, subject to
    the terms of the Indenture.



 



    14.  Unclaimed Funds.  If
    funds for the payment of principal, interest, premium or
    Additional Amounts remain unclaimed for two years, the Trustee
    and the Paying Agents will repay the funds to the Issuer at its
    written request. After that, all liability of the Trustee and
    such Paying Agents with respect to such funds shall cease.



 



    15.  Legal Defeasance and Covenant
    Defeasance.  The Issuer may be discharged from
    its obligations under the Indenture and the Notes except for
    certain provisions thereof (“Legal Defeasance”), and
    may be discharged from its obligations to comply with certain
    covenants contained in the Indenture (“Covenant
    Defeasance”), in each case upon satisfaction of certain
    conditions specified in the Indenture.



 



    16.  Amendment; Supplement;
    Waiver.  Subject to certain exceptions
    specified in the Indenture, the Indenture or the Notes may be
    amended or supplemented with the written consent of the Holders
    of at least a majority in principal amount of the Notes then
    outstanding, and any existing Default or Event of Default or
    compliance with any provision of the Indenture or the Notes may
    be waived with the consent of the Holders of a majority in
    principal amount of the Notes then outstanding.




    

    B-6








 






    17.  Restrictive
    Covenants.  The Indenture imposes certain
    covenants that, among other things, limit the ability of the
    Issuer, the Company, the Guarantors and their Subsidiaries to
    incur additional Indebtedness, to incur additional Liens, to
    enter into Sale and Leaseback Transactions and enter into
    certain consolidations or mergers. The limitations are subject
    to a number of important qualifications and exceptions. The
    Issuer must annually report to the Trustee on compliance with
    such limitations.



 



    18.  Successors.  When a
    successor assumes all the obligations of its predecessor under
    the Notes and the Indenture in accordance with the terms of the
    Indenture, the predecessor will be released from those
    obligations.



 



    19.  Defaults and
    Remedies.  If an Event of Default (other than
    an Event of Default specified in clause (7) of
    Section 6.1 of the Indenture) occurs and is continuing, the
    Trustee or the Holders of at least 25% in principal amount of
    the then outstanding Notes may declare all the Notes to be due
    and payable immediately in the manner and with the effect
    provided in the Indenture. Holders of Notes may not enforce the
    Indenture or the Notes except as provided in the Indenture. The
    Trustee is not obligated to enforce the Indenture or the Notes
    unless it has received full indemnity. The Indenture permits,
    subject to certain limitations therein provided, Holders of a
    majority in aggregate principal amount of the Notes then
    outstanding to direct the Trustee in its exercise of any trust
    or power. The Trustee may withhold from Holders of Notes notice
    of any continuing Default or Event of Default (except a Default
    in payment of principal, premium, interest and Additional
    Amounts, if any, including an accelerated payment) if it
    determines that withholding notice is in their interest.



 



    20.  Trustee Dealings with
    Issuer.  The Trustee under the Indenture, in
    its individual or any other capacity, may become the owner or
    pledgee of Notes and may otherwise deal with the Company, its
    Subsidiaries or their respective Affiliates as if it were not
    the Trustee.



 



    21.  No Recourse Against
    Others.  No director, officer, employee,
    incorporator or stockholder of the Issuer, Fresenius AG, or of
    the Board of Directors of the Company or the Guarantors, as
    such, shall have any liability for any obligations of the Issuer
    or any Guarantor under the Notes, the Indenture or the Note
    Guarantees or for any claim based on, in respect of, or by
    reason of, such obligations or their creation. Each Holder by
    accepting a Note waives and releases all such liability. The
    waiver and release are part of the consideration for issuance of
    the Notes and the Note Guarantees. Such waiver and release may
    not be effective to waive liabilities under the
    U.S. federal securities laws and it is the view of the SEC
    that such a waiver is against public policy. In addition, such
    waiver and release may not be effective under the laws of the
    Federal Republic of Germany. The waiver and release are part of
    the consideration for issuance of the Notes.



 



    22.  Authentication.  This
    Note shall not be valid until the Trustee or authenticating
    agent signs the certificate of authentication on this Note.



 



    23.  Abbreviations and Defined
    Terms.  Customary abbreviations may be used in
    the name of a Holder of a Note or an assignee, such as: TEN COM
    (= tenants in common), TEN ENT (= tenants by the entireties),
    JT TEN (= joint tenants with right of
    survivorship and not as tenants in common),
    CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
    Minors Act). Unless otherwise defined herein, terms defined in
    the Indenture are used herein as defined therein.



 



    24.  CUSIP Numbers.  The
    Issuer will cause CUSIP number to be printed on the Notes as a
    convenience to the Holders of the Notes. No representation is
    made as to the accuracy of such numbers as printed on the Notes
    and reliance may be placed only on the other identification
    numbers printed hereon.



 



    25.  Governing Law.  THIS
    NOTE AND THE INDENTURE, AND THE RIGHTS AND DUTIES OF THE
    PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
    CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
    THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN
    ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK EXCEPT
    CERTAIN MATTERS CONCERNING LIMITATION THEREOF WILL BE CONSTRUED
    IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.




    

    B-7








 







    ASSIGNMENT
    FORM
    



 



    To assign this Note fill in the form below:



 



    I or we assign and transfer this Note to



 



    
    ­
    ­
    




    (Print or type assignee’s name, address and zip code)



 





    
    ­
    ­
    




    (Insert assignee’s social security or tax I.D. No.)



 



    and irrevocably
    appoint          
    agent to transfer this Note on the books of the Issuer. The
    agent may substitute another to act for him.



 



    Date: 
    ­
    ­
     Your Signature: 
    ­
    ­
              



 



    
    ­
    ­
    




    Sign exactly as your name appears on the other side of this Note.




    

    B-8








 







    OPTION OF
    HOLDER TO ELECT PURCHASE
    



 



    If you want to elect to have this Note purchased by the Issuer
    pursuant to Section 4.11 of the Indenture, check the box
    below:



 



    o
    



 


			
	 	    If you want to elect to have only part of this Note purchased by
    the Issuer pursuant to Section 4.11 of the Indenture, state
    the amount: $ 
	
    
    




 


		
	    Date: 	
    

    




 


		
	
    Your
    Signature: 
    
	
    

    





    (Sign exactly as your name appears on the other side of this
    Note)



 


		
	    Signature Guarantee: 	
    

    





    Participant in a recognized Signature Guarantee Medallion Program




    (or other signature guarantor program reasonably acceptable to
    the Trustee)




    

    B-9








 







    EXHIBIT C

    TO THE INDENTURE



 




    FORM OF
    NOTE GUARANTEE



 



    For value received, each of the Guarantors hereby jointly and
    severally unconditionally Guarantees, on a senior unsecured
    basis, to each Holder of a Note authenticated and delivered by
    the Trustee, and to the Trustee on behalf of such Holder, the
    due and punctual payment of the principal of (and premium, if
    any) and interest (including Additional Amounts, if any) on such
    Note when and as the same shall become due and payable, whether
    at the Stated Maturity, by acceleration, call for redemption,
    purchase or otherwise, in accordance with the terms of such Note
    and of the Indenture.



 



    In case of the failure of the Issuer punctually to make any such
    payment, each of the Guarantors hereby jointly and severally
    agrees to cause such payment to be made punctually when and as
    the same shall become due and payable, whether at the Stated
    Maturity or by acceleration, call for redemption, purchase or
    otherwise, and as if such payment were made by the Issuer. The
    Note Guarantee extends to the Issuer’s repurchase
    obligations arising from a Change of Control pursuant to the
    Indenture.



 



    Each of the Guarantors hereby jointly and severally agrees that
    its obligations hereunder shall be unconditional, irrespective
    of the validity, regularity or enforceability of such Note or
    the Indenture, the absence of any action to enforce the same,
    any exchange, release or non-perfection of any Lien on any
    collateral for, or any release or amendment or waiver of any
    term of any other Guarantee of, or any consent to departure from
    any requirement of any other Guarantee of, all or any of the
    Notes, the effects of Bankruptcy Law applicable in the event of
    bankruptcy proceedings being opened with respect to the Issuer,
    of all or any portion of the claims of the Trustee or any of the
    Holders for payment of any of the Notes, any waiver or consent
    by the Holder of such Note or by the Trustee with respect to any
    provisions thereof or of the Indenture, the obtaining of any
    judgment against the Issuer or any action to enforce the same or
    any other circumstances which might otherwise constitute a legal
    or equitable discharge or defense of a guarantor. Each of the
    Guarantors hereby waives the benefits of diligence, presentment,
    demand for payment, any requirement that the Trustee or any of
    the Holders protect, secure, perfect or insure any security
    interest in or other Lien on any property subject thereto or
    exhaust any right or take any action against the Issuer or any
    other Person or any collateral, filing of claims with a court in
    the event of insolvency or bankruptcy of the Issuer, any right
    to require a proceeding first against the Issuer, protest or
    notice with respect to such Note or the Indebtedness evidenced
    thereby and all demands whatsoever, and covenants that this Note
    Guarantee will not be discharged in respect of such Note except
    by complete performance of the obligations contained in such
    Note and in this Note Guarantee. Each of the Guarantors hereby
    agrees that, in the event of a default in payment of principal
    (or premium, if any) or interest (including Additional Amounts,
    if any) on such Note, whether at its Stated Maturity, by
    acceleration, call for redemption, purchase or otherwise, legal
    proceedings may be instituted by the Trustee on behalf of, or
    by, the Holder of such Note, subject to the terms and conditions
    set forth in the Indenture, directly against each of the
    Guarantors to enforce this Note Guarantee without first
    proceeding against the Issuer. Each Guarantor agrees that, to
    the extent permitted by applicable law, if, after the occurrence
    and during the continuance of an Event of Default, the Trustee
    or any of the Holders is prevented by applicable law from
    exercising its respective rights to accelerate the maturity of
    the Notes, to collect interest on the Notes, or to enforce or
    exercise any other right or remedy with respect to the Notes, or
    the Trustee or the Holders are prevented from taking any action
    to realize on any collateral, such Guarantor agrees to pay to
    the Trustee for the account of the Holders, upon demand
    therefor, the amount that would otherwise have been due and
    payable had such rights and remedies been permitted to be
    exercised by the Trustee or any of the Holders.



 



    No reference herein to the Indenture and no provision of this
    Note Guarantee or of the Indenture shall alter or impair the
    Note Guarantee of any Guarantor, which is absolute and
    unconditional, of the due and punctual payment of the principal
    of (and premium, if any) and interest (including Additional
    Amounts, if any) on the Note upon which this Note Guarantee is
    endorsed.



 



    This Note Guarantee shall remain in full force and effect and
    continue to be effective should any petition be filed by or
    against the Issuer for liquidation or reorganization, or
    equivalent proceeding under applicable law, should the Issuer
    become insolvent or make an assignment for the benefit of
    creditors or should a receiver or trustee be




    

    C-1








 






    appointed for all or any significant part of the Issuer’s
    assets, or the equivalent of any of the foregoing under
    applicable law, and shall, to the fullest extent permitted by
    applicable law, continue to be effective or be reinstated, as
    the case may be, if at any time payment and performance of the
    Notes is, pursuant to applicable law, rescinded or reduced in
    amount, or must otherwise be restored or returned by any obligee
    on the Notes whether as a voidable preference, fraudulent
    transfer, or as otherwise provided under similar laws affecting
    the rights of creditors generally or under applicable laws of
    the jurisdiction of formation of the Issuer, all as though such
    payment or performance had not been made. In the event that any
    payment, or any part thereof, is rescinded, reduced, restored or
    returned, the Notes shall, to the fullest extent permitted by
    applicable law, be reinstated and deemed reduced only by such
    amount paid and not so rescinded, reduced, restored or returned.



 



    The Guarantors shall have the right to seek contribution from
    any non-paying Guarantor so long as the exercise of such right
    does not impair the rights of the Holders under this Note
    Guarantee. The Guarantors or any particular Guarantor shall be
    released from this Note Guarantee upon the terms and subject to
    certain conditions provided in the Indenture.



 



    By delivery of a supplemental indenture to the Trustee in
    accordance with the terms of the Indenture or the execution of a
    Guarantee Agreement, each Person that becomes, or assumes the
    obligations of, a Guarantor after the date of the Indenture will
    be deemed to have executed and delivered this Note Guarantee for
    the benefit of the Holder of this Note with the same effect as
    if such Guarantor were named below.



 



    All terms used in this Note Guarantee which are defined in the
    Indenture referred to in the Note upon which this Note Guarantee
    is endorsed shall have the meanings assigned to them in such
    Indenture.



 



    This Note Guarantee shall not be valid or obligatory for any
    purpose until the certificate of authentication on the Note upon
    which this Note Guarantee is endorsed shall have been executed
    by the Trustee under the Indenture by manual signature.



 



    Each Note Guarantee (other than that of the Company) will be
    limited in amount to an amount not to exceed the maximum amount
    that can be guaranteed by the applicable Guarantor without
    rendering the Note Guarantee, as it relates to such Guarantor,
    voidable under applicable law relating to fraudulent conveyance
    or fraudulent transfer or similar laws affecting the rights of
    creditors generally or under applicable law of the jurisdiction
    of incorporation of such Guarantor.



 



    In the case of Fresenius Medical Care Deutschland GmbH
    (“FMCD”), the following provisions apply:



 



    The Note Guarantee of FMCD will be limited if and to the extent
    payment under such Note Guarantee or the application of
    enforcement proceeds would cause such Guarantor’s net
    assets (Reinvermögen) calculated as the sum of the
    balance sheet positions shown under § 266(2)(A),
    (B) and (C) German Commercial Code
    (Handelsgesetzbuch), less the sum of the liabilities
    shown under the balance sheet positions pursuant to
    § 266(3)(B), (C) and (D) German Commercial
    Code to fall below the Guarantor’s registered share capital
    (Stammkapital). For the purposes of such calculation, the
    following adjustments will be made: (i) the amount of any
    increase of the registered share capital out of retained
    earnings (Kapitalerhöhung aus Gesellschaftsmitteln)
    after the Closing Date that has been effected without the
    prior consent of the Trustee shall be deducted from the
    registered share capital; and (ii) liabilities incurred in
    violation of the provisions of the Notes and the Indenture shall
    be disregarded. In the event such Guarantor’s net assets
    fall below its registered share capital, such Guarantor, upon
    request of the Trustee, will realize in due course, to the
    extent legally permitted, any and all of its assets that are
    shown in the balance sheet with a book value (Buchwert)
    that is significantly lower than the market value of the assets
    if the relevant assets are not necessary for such
    Guarantor’s business (nicht betriebsnotwendiges
    Vermögen).



 



    Reference is made to Article X of the Indenture for further
    provisions with respect to this Note Guarantee.



 



    THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN
    ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK EXCEPT THAT
    THE LIMITATIONS OF THE NOTE GUARANTEES EXPRESSED IN
    SECTION 10.1(c) OF THE INDENTURE (AND THE EQUIVALENT
    PROVISIONS IN THE ELEVENTH PARAGRAPH HEREOF) WILL BE
    CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF
    GERMANY.




    

    C-2








 






    IN WITNESS WHEREOF, each of the Guarantors has caused this Note
    Guarantee to be duly executed.



 



    FRESENIUS MEDICAL CARE AG & CO. KGaA,

    a German partnership limited by shares, represented

    by FRESENIUS MEDICAL CARE

    MANAGEMENT AG, a German corporation, its

    general partner, as a Guarantor



 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	
    Member of the Management Board




 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	
    Member of the Management Board




 



    FRESENIUS MEDICAL CARE HOLDINGS,

    INC., as a Guarantor



 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	





 



    FRESENIUS MEDICAL CARE DEUTSCHLAND

    GMBH, as a Guarantor



 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	





 


			
	 	    By: 
	
        









    Name: 



			
	 	    Title: 
	






    

    C-3








 







    EXHIBIT D

    TO THE INDENTURE



 




    FORM OF
    TRANSFER CERTIFICATE FOR TRANSFER FROM

    RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL
    NOTE

    (Transfers pursuant to Section 2.7(a) of the
    Indenture)



 



    FMC Finance III S.A.




    c/o U.S.
    Bank National Association

    [




 



                                      ]



 



    Attention: [Corporate Trust and Agency Services]



 


			
	 	    RE:  
	
    67/8% Senior
    Notes due 2017

    (the “Notes”) of FMC Finance III S.A.




 



    Reference is hereby made to the Indenture dated as of
    July 2, 2007 (the “Indenture”) between FMC
    Finance III S.A., Fresenius Medical Care AG & Co.
    KGaA, Fresenius Medical Care Holdings, Inc., Fresenius Medical
    Care Deutschland GmbH, and U.S. Bank National Association,
    as Trustee. Capitalized terms used but not defined herein shall
    have the meanings given them in the Indenture.



 



    This letter relates to $      (being in
    a minimum amount of $75,000 and any integral multiple of $1,000
    in excess thereof) principal amount of Notes beneficially held
    through interests in the Rule 144A Global Note (CUSIP No.
    [          ])with
    DTC in the name
    of          (the
    “Transferor”), account
    number          .
    The Transferor hereby requests that on [INSERT DATE] such
    beneficial interest in the Rule 144A Global Note be
    transferred or exchanged for an interest in the
    Regulation S Global Note (CUSIP No.
    [          ])
    in the same principal denomination and transferred
    to          (account
    no.          ).
    If this is a partial transfer, a minimum amount of $75,000 and
    any integral multiple of $1,000 in excess thereof of the
    Rule 144A Global Note will remain outstanding.



 



    In connection with such request and in respect of such Notes,
    the Transferor does hereby certify that such transfer has been
    effected in accordance with the transfer restrictions set forth
    in the Indenture and the Notes and pursuant to and in accordance
    with Rule 903 or 904 of Regulation S under the
    Securities Act, and accordingly the Transferor further certifies
    that:



 



    (A) (1) the offer of the Notes was not made to a
    Person in the United States;



 



    (2) either (a) at the time the buy order was
    originated, the transferee was outside the United States or we
    and any Person acting on our behalf reasonably believed that the
    transferee was outside the United States or (b) the
    transaction was executed in, on or through the facilities of a
    designated offshore securities market and neither the Transferor
    nor any Person acting on our behalf knows that the transaction
    was prearranged with a buyer in the United States;



 



    (3) no directed selling efforts have been made in
    contravention of the requirements of Rule 903(b) or 904(a)
    of Regulation S, as applicable; and



 



    (4) the transaction is not part of a plan or scheme to
    evade the registration requirements of the Securities Act.



 



    OR



 



    (B) such transfer is being made in accordance with
    Rule 144 under the Securities Act.




    

    D-1








 






    This certificate and the statements contained herein are made
    for your benefit and the benefit of the Issuer. Terms used in
    this certificate and not otherwise defined in the Indenture have
    the meanings set forth in Regulation S under the Securities
    Act.



 


		
	    Dated: 	
    

    




 



    [Name of Transferor]



 


			
	 	    By: 
	
        









    Name: 




    Title:




    Telephone No.:



 



    Please print name and address (including zip code number)






 





 






    

    D-2








 







    EXHIBIT E

    TO THE INDENTURE



 




    FORM OF
    TRANSFER CERTIFICATE FOR TRANSFER FROM

    REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL
    NOTE

    (Transfers pursuant to Section 2.7(b) of the
    Indenture)



 



    FMC Finance III S.A.




    c/o U.S.
    Bank National Association




    [




 



                                      ]



 



    Attention: [Corporate Trust and Agency Services]



 


			
	 	    RE: 
	
    67/8% Senior
    Notes due 2017

    (the “Notes”) of FMC Finance III S.A.




 



    Reference is hereby made to the Indenture dated as of
    July 2, 2007 (the “Indenture”) between FMC
    Finance III S.A., Fresenius Medical Care AG & Co.
    KGaA, Fresenius Medical Care Holdings, Inc., Fresenius Medical
    Care Deutschland GmbH, and U.S. Bank National Association,
    as Trustee. Capitalized terms used but not defined herein shall
    have the meanings given them in the Indenture.



 



    This letter relates to $      (being in
    a minimum amount of $75,000 and in an integral multiple of
    $1,000 in excess thereof) principal amount of Notes beneficially
    held through interests in the Regulation S Global Note
    (CUSIP No.
    [          ])
    with DTC in the name
    of          
    (the “Transferor”), account
    number          .
    The Transferor hereby requests that on [INSERT DATE] such
    beneficial interest in the Regulation S Global Note be
    transferred or exchanged for an interest in the Rule 144A
    Global Note (CUSIP No.
    [          ])in
    the same principal denomination and transferred
    to          
    (account
    no.          ).
    If this is a partial transfer, a minimum of $75,000 and any
    integral multiple of $1,000 in excess thereof of the
    Regulation S Global will remain outstanding.



 



    In connection with such request, and in respect of such Notes,
    the Transferor does hereby certify that such Notes are being
    transferred in accordance with Rule 144A under the
    Securities Act to a transferee that the Transferor knows or
    reasonably believes is purchasing the Notes for its own account
    or an account with respect to which the transferee exercises
    sole investment discretion and the transferee and any such
    account is a “qualified institutional buyer” within
    the meaning of Rule 144A, in each case in a transaction
    meeting the requirements of Rule 144A and in accordance
    with any applicable securities laws of any state of the United
    States or any other jurisdiction.




    

    E-1








 






    This certificate and the statements contained herein are made
    for your benefit and the benefit of the Issuer.



 


		
	    Dated: 	
    

    




 



    [Name of Transferor]



 


			
	 	    By: 
	
        









    Name: 




    Title:




    Telephone No.:



 



    Please print name and address (including zip code number)






 





 






    

    E-2