exv10w1



Table of Contents








    Exhibit 10.1



 


 




    FMC
    FINANCE VI S.A.

    as Issuer

    U.S. BANK NATIONAL ASSOCIATION

    as Trustee

    DEUTSCHE BANK AKTIENGESELLSCHAFT 

    as Paying Agent

    FRESENIUS MEDICAL CARE AG & Co. KGaA,

    FRESENIUS MEDICAL CARE HOLDINGS, INC. and

    FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH

    as Guarantors

    INDENTURE

    DATED AS OF JANUARY 20, 2010

    with respect to the issuance of

    5.50% SENIOR NOTES DUE 2016



 













Table of Contents






 




    TABLE OF
    CONTENTS



 











	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
    Page

	 

	
    Article I

    

    DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	
    Section 1.1
    
	 
	
 
	
    Definitions
	
 
	 
	
    1
	 

	 
	
    Section 1.2
    
	 
	
 
	
    Rules of Construction
	
 
	 
	
    15
	 

	 
	
    Section 1.3
    
	 
	
 
	
    Incorporation by Reference of Trust Indenture Act
	
 
	 
	
    15
	 

	
 

	
    Article II

    

    THE NOTES

	 
	
    Section 2.1
    
	 
	
 
	
    Form and Dating
	
 
	 
	
    16
	 

	 
	
    Section 2.2
    
	 
	
 
	
    Execution and Authentication
	
 
	 
	
    16
	 

	 
	
    Section 2.3
    
	 
	
 
	
    Registrar and Paying Agent
	
 
	 
	
    17
	 

	 
	
    Section 2.4
    
	 
	
 
	
    Paying Agent To Hold Assets in Trust
	
 
	 
	
    18
	 

	 
	
    Section 2.5
    
	 
	
 
	
    List of Holders
	
 
	 
	
    18
	 

	 
	
    Section 2.6
    
	 
	
 
	
    Book-Entry Provisions for Global Notes
	
 
	 
	
    18
	 

	 
	
    Section 2.7
    
	 
	
 
	
    Registration of Transfer and Exchange
	
 
	 
	
    19
	 

	 
	
    Section 2.8
    
	 
	
 
	
    Replacement Notes
	
 
	 
	
    22
	 

	 
	
    Section 2.9
    
	 
	
 
	
    Outstanding Notes
	
 
	 
	
    22
	 

	 
	
    Section 2.10
    
	 
	
 
	
    Treasury Notes
	
 
	 
	
    23
	 

	 
	
    Section 2.11
    
	 
	
 
	
    Temporary Notes
	
 
	 
	
    23
	 

	 
	
    Section 2.12
    
	 
	
 
	
    Cancellation
	
 
	 
	
    23
	 

	 
	
    Section 2.13
    
	 
	
 
	
    Defaulted Interest
	
 
	 
	
    23
	 

	 
	
    Section 2.14
    
	 
	
 
	
    ISINs and Common Codes
	
 
	 
	
    24
	 

	 
	
    Section 2.15
    
	 
	
 
	
    Deposit of Moneys
	
 
	 
	
    24
	 

	 
	
    Section 2.16
    
	 
	
 
	
    Certain Matters Relating to Global Notes
	
 
	 
	
    24
	 

	 
	
    Section 2.17
    
	 
	
 
	
    Record Date
	
 
	 
	
    24
	 

	
 

	
    Article III

    

    REDEMPTION

	 
	
    Section 3.1
    
	 
	
 
	
    Optional Redemption
	
 
	 
	
    24
	 

	 
	
    Section 3.2
    
	 
	
 
	
    Notices to Trustee
	
 
	 
	
    25
	 

	 
	
    Section 3.3
    
	 
	
 
	
    Selection of Notes To Be Redeemed
	
 
	 
	
    25
	 

	 
	
    Section 3.4
    
	 
	
 
	
    Notice of Redemption
	
 
	 
	
    25
	 

	 
	
    Section 3.5
    
	 
	
 
	
    Effect of Notice of Redemption
	
 
	 
	
    26
	 

	 
	
    Section 3.6
    
	 
	
 
	
    Deposit of Redemption Price
	
 
	 
	
    26
	 

	 
	
    Section 3.7
    
	 
	
 
	
    Notes Redeemed in Part
	
 
	 
	
    26
	 

	 
	
    Section 3.8
    
	 
	
 
	
    Special Tax Redemption
	
 
	 
	
    27
	 

	
 

	
    Article IV

    

    COVENANTS

	 
	
    Section 4.1
    
	 
	
 
	
    Payment of Notes
	
 
	 
	
    27
	 

	 
	
    Section 4.2
    
	 
	
 
	
    Maintenance of Office or Agency
	
 
	 
	
    27
	 

	 
	
    Section 4.3
    
	 
	
 
	
    Limitation on Incurrence of Indebtedness
	
 
	 
	
    28
	 






    

    i








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    Page

	 

	 
	
    Section 4.4
    
	 
	
 
	
    Limitation on Liens
	
 
	 
	
    29
	 

	 
	
    Section 4.5
    
	 
	
 
	
    Ownership of the Issuer
	
 
	 
	
    29
	 

	 
	
    Section 4.6
    
	 
	
 
	
    Existence
	
 
	 
	
    29
	 

	 
	
    Section 4.7
    
	 
	
 
	
    Maintenance of Properties
	
 
	 
	
    29
	 

	 
	
    Section 4.8
    
	 
	
 
	
    Payment of Taxes and Other Claims
	
 
	 
	
    30
	 

	 
	
    Section 4.9
    
	 
	
 
	
    Maintenance of Insurance
	
 
	 
	
    30
	 

	 
	
    Section 4.10
    
	 
	
 
	
    Reports
	
 
	 
	
    30
	 

	 
	
    Section 4.11
    
	 
	
 
	
    Change of Control
	
 
	 
	
    31
	 

	 
	
    Section 4.12
    
	 
	
 
	
    Additional Amounts
	
 
	 
	
    32
	 

	 
	
    Section 4.13
    
	 
	
 
	
    Compliance Certificate; Notice of Default
	
 
	 
	
    33
	 

	 
	
    Section 4.14
    
	 
	
 
	
    Limitation on Sale and Leaseback Transactions
	
 
	 
	
    33
	 

	
 

	
    Article V

    

    SUCCESSOR ISSUER OR GUARANTOR

	 
	
    Section 5.1
    
	 
	
 
	
    Limitation on Mergers and Sales of Assets
	
 
	 
	
    33
	 

	 
	
    Section 5.2
    
	 
	
 
	
    Successor Entity Substituted
	
 
	 
	
    34
	 

	 
	
    Section 5.3
    
	 
	
 
	
    Substitution of the Issuer
	
 
	 
	
    34
	 

	
 

	
    Article VI

    

    DEFAULT AND REMEDIES

	 
	
    Section 6.1
    
	 
	
 
	
    Events of Default
	
 
	 
	
    35
	 

	 
	
    Section 6.2
    
	 
	
 
	
    Acceleration
	
 
	 
	
    36
	 

	 
	
    Section 6.3
    
	 
	
 
	
    Other Remedies
	
 
	 
	
    36
	 

	 
	
    Section 6.4
    
	 
	
 
	
    The Trustee May Enforce Claims Without Possession of Notes
	
 
	 
	
    36
	 

	 
	
    Section 6.5
    
	 
	
 
	
    Rights and Remedies Cumulative
	
 
	 
	
    36
	 

	 
	
    Section 6.6
    
	 
	
 
	
    Delay or Omission Not Waiver
	
 
	 
	
    36
	 

	 
	
    Section 6.7
    
	 
	
 
	
    Waiver of Past Defaults
	
 
	 
	
    36
	 

	 
	
    Section 6.8
    
	 
	
 
	
    Control by Majority
	
 
	 
	
    36
	 

	 
	
    Section 6.9
    
	 
	
 
	
    Limitation on Suits
	
 
	 
	
    37
	 

	 
	
    Section 6.10
    
	 
	
 
	
    Rights of Holders To Receive Payment
	
 
	 
	
    37
	 

	 
	
    Section 6.11
    
	 
	
 
	
    Collection Suit by Trustee
	
 
	 
	
    37
	 

	 
	
    Section 6.12
    
	 
	
 
	
    Trustee May File Proofs of Claim
	
 
	 
	
    37
	 

	 
	
    Section 6.13
    
	 
	
 
	
    Priorities
	
 
	 
	
    38
	 

	 
	
    Section 6.14
    
	 
	
 
	
    Restoration of Rights and Remedies
	
 
	 
	
    38
	 

	 
	
    Section 6.15
    
	 
	
 
	
    Undertaking for Costs
	
 
	 
	
    38
	 

	 
	
    Section 6.16
    
	 
	
 
	
    Notices of Default
	
 
	 
	
    38
	 

	
 

	
    Article VII

    

    TRUSTEE

	 
	
    Section 7.1
    
	 
	
 
	
    Duties of Trustee
	
 
	 
	
    38
	 

	 
	
    Section 7.2
    
	 
	
 
	
    Rights of Trustee
	
 
	 
	
    39
	 

	 
	
    Section 7.3
    
	 
	
 
	
    Individual Rights of Trustee
	
 
	 
	
    40
	 

	 
	
    Section 7.4
    
	 
	
 
	
    Trustee’s Disclaimer
	
 
	 
	
    40
	 

	 
	
    Section 7.5
    
	 
	
 
	
    Notice of Default
	
 
	 
	
    40
	 






    

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    Page

	 

	 
	
    Section 7.6
    
	 
	
 
	
    Reports by Trustee to Holders of the Notes
	
 
	 
	
    40
	 

	 
	
    Section 7.7
    
	 
	
 
	
    Compensation and Indemnity
	
 
	 
	
    40
	 

	 
	
    Section 7.8
    
	 
	
 
	
    Replacement of Trustee
	
 
	 
	
    41
	 

	 
	
    Section 7.9
    
	 
	
 
	
    Successor Trustee by Merger, Etc
	
 
	 
	
    42
	 

	 
	
    Section 7.10
    
	 
	
 
	
    Eligibility; Disqualification
	
 
	 
	
    42
	 

	 
	
    Section 7.11
    
	 
	
 
	
    Preferential Collection of Claims Against the Company
	
 
	 
	
    43
	 

	
 

	
    Article VIII

    

    SATISFACTION AND DISCHARGE OF INDENTURE

	 
	
    Section 8.1
    
	 
	
 
	
    Option To Effect Legal Defeasance or Covenant Defeasance
	
 
	 
	
    43
	 

	 
	
    Section 8.2
    
	 
	
 
	
    Legal Defeasance and Discharge
	
 
	 
	
    43
	 

	 
	
    Section 8.3
    
	 
	
 
	
    Covenant Defeasance
	
 
	 
	
    43
	 

	 
	
    Section 8.4
    
	 
	
 
	
    Conditions to Legal or Covenant Defeasance
	
 
	 
	
    44
	 

	 
	
    Section 8.5
    
	 
	
 
	
    Satisfaction and Discharge of Indenture
	
 
	 
	
    44
	 

	 
	
    Section 8.6
    
	 
	
 
	
    Survival of Certain Obligations
	
 
	 
	
    45
	 

	 
	
    Section 8.7
    
	 
	
 
	
    Acknowledgment of Discharge by Trustee
	
 
	 
	
    45
	 

	 
	
    Section 8.8
    
	 
	
 
	
    Application of Trust Moneys
	
 
	 
	
    45
	 

	 
	
    Section 8.9
    
	 
	
 
	
    Repayment to the Issuer; Unclaimed Money
	
 
	 
	
    45
	 

	 
	
    Section 8.10
    
	 
	
 
	
    Reinstatement
	
 
	 
	
    46
	 

	
 

	
    Article IX

    

    AMENDMENTS, SUPPLEMENTS AND WAIVERS

	 
	
    Section 9.1
    
	 
	
 
	
    Without Consent of Holders of Notes
	
 
	 
	
    46
	 

	 
	
    Section 9.2
    
	 
	
 
	
    With Consent of Holders of Notes
	
 
	 
	
    47
	 

	 
	
    Section 9.3
    
	 
	
 
	
    Notice of Amendment, Supplement or Waiver
	
 
	 
	
    47
	 

	 
	
    Section 9.4
    
	 
	
 
	
    Revocation and Effect of Consents
	
 
	 
	
    47
	 

	 
	
    Section 9.5
    
	 
	
 
	
    Notation on or Exchange of Notes
	
 
	 
	
    48
	 

	 
	
    Section 9.6
    
	 
	
 
	
    Trustee To Sign Amendments, Etc
	
 
	 
	
    48
	 

	
 

	
    Article X

    

    NOTE GUARANTEE

	 
	
    Section 10.1
    
	 
	
 
	
    Note Guarantee
	
 
	 
	
    48
	 

	 
	
    Section 10.2
    
	 
	
 
	
    Execution and Delivery of Note Guarantees
	
 
	 
	
    50
	 

	 
	
    Section 10.3
    
	 
	
 
	
    Guarantors May Consolidate, Etc., On Certain Terms
	
 
	 
	
    51
	 

	 
	
    Section 10.4
    
	 
	
 
	
    Release of Guarantors
	
 
	 
	
    51
	 

	
 

	
    Article XI

    

    MISCELLANEOUS

	 
	
    Section 11.1
    
	 
	
 
	
    Notices
	
 
	 
	
    51
	 

	 
	
    Section 11.2
    
	 
	
 
	
    Certificate and Opinion as to Conditions Precedent
	
 
	 
	
    53
	 

	 
	
    Section 11.3
    
	 
	
 
	
    Statements Required in Certificate or Opinion
	
 
	 
	
    53
	 

	 
	
    Section 11.4
    
	 
	
 
	
    Rules by Trustee, Paying Agent, Registrar
	
 
	 
	
    54
	 

	 
	
    Section 11.5
    
	 
	
 
	
    Legal Holidays
	
 
	 
	
    54
	 

	 
	
    Section 11.6
    
	 
	
 
	
    Governing Law
	
 
	 
	
    54
	 






    

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    Page

	 

	 
	
    Section 11.7
    
	 
	
 
	
    Submission to Jurisdiction
	
 
	 
	
    54
	 

	 
	
    Section 11.8
    
	 
	
 
	
    No Personal Liability of Directors, Officers, Employees and
    Stockholders
	
 
	 
	
    55
	 

	 
	
    Section 11.9
    
	 
	
 
	
    Successors
	
 
	 
	
    55
	 

	 
	
    Section 11.10
    
	 
	
 
	
    Counterpart Originals
	
 
	 
	
    55
	 

	 
	
    Section 11.11
    
	 
	
 
	
    Severability
	
 
	 
	
    55
	 

	 
	
    Section 11.12
    
	 
	
 
	
    Table of Contents, Headings, etc
	
 
	 
	
    55
	 

	 
	
    Section 11.13
    
	 
	
 
	
    Trust Indenture Act Controls
	
 
	 
	
    55
	 

	 
	
    Section 11.14
    
	 
	
 
	
    Currency Indemnity
	
 
	 
	
    55
	 

	 
	
    Section 11.15
    
	 
	
 
	
    Information
	
 
	 
	
    55
	 

	 
	
    EXHIBITS
	 
	
 
	
 
	
 
	 
	
 
	 

	 
	
    Exhibit A —
	 
	
 
	
    Form of Initial Global Note
	
 
	 
	
    A-1
	 

	 
	
    Exhibit B —
	 
	
 
	
    Form of Initial Definitive Note
	
 
	 
	
    B-1
	 

	 
	
    Exhibit C —
	 
	
 
	
    Form of Note Guarantee
	
 
	 
	
    C-1
	 

	 
	
    Exhibit D —
	 
	
 
	
    Form of Transfer Certificate for Transfer from Rule 144A
    Global Note to Regulation S Global Note
	
 
	 
	
    D-1
	 

	 
	
    Exhibit E —
	 
	
 
	
    Form of Transfer Certificate for Transfer from Regulation S
    Global Note to Rule 144A Global Note
	
 
	 
	
    E-1
	 














 



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





    

    iv








Table of Contents







    INDENTURE dated as of January 20, 2010, among FMC FINANCE
    VI S.A., a société anonyme organized 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”), U.S. BANK NATIONAL ASSOCIATION, a
    national banking association, as trustee (the
    “Trustee”) and DEUTSCHE BANK AKTIENGESELLSCHAFT, as
    the paying agent (the “Paying Agent”).



 



    The Issuer has duly authorized the creation and issuance of its
    5.50% Senior Notes due 2016. The Notes consist of (i)
    €250,000,000 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 5.50% Senior
    Notes due 2016.



 



    “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.














Table of Contents







    “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 Fifth Amended and Restated Transfer
    and Administration Agreement dated as of November 17, 2009
    by and among NMC Funding Corporation, as transferor, National
    Medical Care, Inc., as initial collection agent, Paradigm
    Funding LLC, and other conduit investors party thereto, the
    financial institutions party thereto, The Bank of Nova Scotia,
    Barclays Bank PLC, Bayerische Landesbank, New York Branch,
    Calyon New York Branch and Royal Bank of Canada, as
    administrative agents, and WestLB AG, New York Branch, as
    administrative agent and as 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






    

    2








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    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.



 



    “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 Board of
    Directors or 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.



 



    “Bund Rate” means the yield to maturity at the time of
    computation of direct obligations of the Federal Republic of
    Germany (Bund or Bundesanleihen) with a constant maturity (as
    officially compiled and published in the most recent financial
    statistics that have become publicly available at least two
    Business Days (but not more than five Business Days) prior to
    the redemption date (or, if such financial statistics are not so
    published or available, any publicly available source of similar
    market data selected by the Issuer in good faith)) most nearly
    equal to the period from the redemption date to July 15,
    2016; provided, however that if the period from the
    redemption date to July 15, 2016 is not equal to the
    constant maturity of the direct obligations of the Federal
    Republic of Germany for which a weekly average yield is given,
    the Bund Rate shall be obtained by linear interpolation
    (calculated to the nearest one-twelfth of a year) from the
    weekly average yields of direct obligations of the Federal
    Republic of Germany for which such yields are given, except that
    if the period from such redemption date to July 15, 2016 is
    less than one year, the weekly average yield on actually traded
    direct obligations of the Federal Republic of Germany adjusted
    to a constant maturity of one year shall be used.



 



    “Business Day” means any day other than:



 



    (1) a Saturday or Sunday,



 



    (2) a day on which banking institutions in 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.





    

    3








Table of Contents







    “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
    SE, or if Fresenius SE 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 Fresenius SE, 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) Fresenius SE does 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).



 



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



 



    “Clearing Agency” means one or more of Euroclear,
    Clearstream, or the successor of either of them, in each case
    acting directly, or through a custodian, nominee or depository,
    as holder of the Global Notes.



 



    “Clearstream” shall have the meaning set forth in
    Section 2.6.



 



    “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






    

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    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 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 (including, for any period after
    January 1, 2009, any net income attributable to
    non-controlling interest of such Person and its consolidated
    Subsidiaries), in each case as 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






    

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    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.



 



    “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.



 



    “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.





    

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    “€” or “euro” means the single currency
    of the Participating Member States.



 



    “Euroclear” shall have the meaning set forth in
    Section 2.6.



 



    “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.



 



    “Fresenius SE” means Fresenius SE, a European Company
    (Societas Europaea) previously called Fresenius AG, a German
    stock corporation.



 



    “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
    Gesellschafter) 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.



 



    “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,





    

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    (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 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.





    

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    “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 VI 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).



 



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



 



    “Maturity Date” means July 15, 2016.



 



    “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.



 



    “Participating Member State” means a member state of
    the European Union which has adopted or adopts the single
    currency in accordance with the Treaty establishing the European
    Community (as that Treaty is amended from time to time).



 



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



 



    “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






    

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    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 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 (other than Liens
    under clause (19));



 



    (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;





    

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    (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 (other than Liens under
    clause (19)); 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 Indebtedness and other obligations
    under the Credit Facility in an aggregate principal amount of
    Indebtedness secured thereby not to exceed the greater of
    (x) $4.6 billion, the maximum amount of Indebtedness
    that could be incurred under the Credit Facility as of
    March 31, 2006, and (y) 2.5 times the Company’s
    aggregate EBITDA for the most recently ended four full fiscal
    quarters for which internal financial statements are available;



 



    (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.



 



    “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),





    

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    (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.



 



    “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





    

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    (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 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” means, with respect to any
    Person, 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.





    

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    “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.



 



    “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.



 



    “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.



 



    “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,






    

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    including opinions and pronouncements in staff accounting
    bulletins and similar written statements from the accounting
    staff of the SEC.



 



    “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 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) 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.



 



    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.





    

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    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 (1) and (2) 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
    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






    

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    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 €250,000,000 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. 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 €1,000
    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”),
    (ii) an office or agency where Notes may be presented for
    payment to Deutsche Bank Aktiengesellschaft and (iii) upon
    issuance of Definitive Notes, an office or agency where
    Definitive Notes may be presented for payment to the Luxembourg
    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, the
    Company or any of its Subsidiaries may act as Paying Agent or
    Registrar to the extent permitted under applicable laws or
    regulations.



 



    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 and the Notes
    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.





    

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    The Issuer initially appoints Deutsche Bank Aktiengesellschaft
    to act as the paying agent (together with its successor in such
    capacity, the “Paying Agent”) and the Trustee to act
    as the Registrar. If and so long as the Notes are listed on the
    Euro MTF Market of the Luxembourg Stock Exchange and the rules
    of such stock exchange so require, the Issuer shall appoint BGL
    BNP Paribas Société Anonyme, or such other Person
    located in Luxembourg and reasonably acceptable to the Trustee
    (reasonableness to be determined objectively), as the Luxembourg
    paying and transfer agent (together with its successor in such
    capacity, the “Luxembourg Paying Agent”).



 



    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 deposited with and registered in the name of
    BT Globenet Nominees Limited as nominee for Deutsche Bank
    Aktiengesellschaft, as the common depository, for the accounts
    of Euroclear Bank S.A./N.V. (“Euroclear”) and
    Clearstream Banking, société anonyme
    (“Clearstream”) and (ii) 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 CLEARING AGENCY OR A NOMINEE OF THE CLEARING AGENCY. THIS
    NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
    NAME OF A PERSON OTHER THAN THE CLEARING AGENCY 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 CLEARING AGENCY OR A NOMINEE OF THE
    CLEARING AGENCY) 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
    Clearing Agency to a nominee of the Clearing Agency or by a
    nominee of the Clearing Agency to the Clearing Agency or another
    successor of the Clearing Agency 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 Clearing Agency 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 Clearing Agency
    (i) has notified the Issuer that it is unwilling or unable
    to continue as a Clearing Agency and (ii) a successor to
    the Clearing Agency has not been appointed by the Issuer within
    120 days of such notification, (b) the Clearing Agency
    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 a Clearing Agency of the Holder thereof or
    of the holder of an interest therein, 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 €1,000 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 be surrendered by the Holder thereof to the Registrar for
    cancellation. Whenever a part of a Global Note is exchanged for
    one






    

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    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 Clearing Agency, 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 office in Frankfurt,
    Germany or, so long as the Notes are listed on the Euro MTF
    Market of the Luxembourg Stock Exchange and the rules of that
    exchange so require, upon receipt by the Luxembourg Paying
    Agent, as transfer agent, at its office in Luxembourg of
    (1) written instructions given in accordance with the
    procedures of the Clearing Agency, 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 Clearing Agency, 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 Clearing Agency, 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 Clearing
    Agency 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. The Clearing Agency will
    promptly notify the Trustee of any increases or decreases in the
    amount of each 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 Clearing Agency, 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 office in






    

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    Frankfurt, Germany or, so long as the Notes are listed on the
    Euro MTF Market of the Luxembourg Stock Exchange and the rules
    of that exchange so require, upon receipt by the Luxembourg
    Paying Agent, as transfer agent, at its office in Luxembourg of
    (l) instructions given in accordance with the procedures of
    the Clearing Agency, 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 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 Clearing Agency, 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
    Clearing Agency 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 Clearing Agency 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. The Clearing Agency will promptly notify the Trustee
    of any increases or decreases in the amount of each Global Note.



 



    (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






    

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    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.



 



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



 



    “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
    ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
    UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
    1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
    SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
    TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
    EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
    EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
    RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
    SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
    THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
    FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
    RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE
    UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
    A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
    UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR
    THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
    MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
    ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
    TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
    RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
    (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
    THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
    APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
    SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
    TO THE ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER
    OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
    IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
    OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
    JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
    HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
    EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE
    (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE
    AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
    RESALE OF THE SECURITY EVIDENCED HEREBY.”



 



    (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.





    

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    (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 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.





    

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    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 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






    

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    defaulted interest later than 10:00 a.m. Frankfurt
    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, the
    payment date and the amount of defaulted interest, and interest
    payable on such defaulted interest, if any, to be paid.



 



    Section 2.14 ISINs
    and Common Codes. The Issuer in issuing the Notes may
    use ISINs
    and/or
    Common Codes, and if it does so, the Trustee shall use the ISIN
    and/or
    Common Code 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 ISIN
    and/or
    Common Code 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 changes in any ISINs
    and/or
    Common Codes.



 



    Section 2.15 Deposit
    of Moneys. Prior to 10:00 a.m. Frankfurt time
    on each interest payment date and Maturity Date, the Issuer
    shall have deposited with the Trustee or the Paying Agent (which
    shall be the Paying Agent or its successor) 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. 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 a Clearing Agency (“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
    Clearing Agency or its nominee, and the Clearing Agency 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 Clearing Agency or its nominee or
    impair, as between the Clearing Agency 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 Euroclear and
    Clearstream and their 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 Bund 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 Bund
    Rate at the time of any such redemption.





    

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    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 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, 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 €1,000 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 and are listed on the Euro MTF
    Market of 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) or, to the extent and in the manner
    permitted by such rules, posted on the official website of the
    Luxembourg Stock Exchange (www.bourse.lu) 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






    

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    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;



 



    (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 ISIN
    and/or
    Common Code, and that no representation is made as to the
    correctness or accuracy of the ISIN
    and/or
    Common Code, 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. Frankfurt time on the Redemption Date
    or the Tax Redemption Date, as applicable, the Issuer shall
    deposit with the Trustee or the Paying Agent (which shall be the
    Paying Agent or its successor) euro in
    same-day
    funds 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. 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 €1,000 or integral multiples of €1,000 in
    excess thereof. Upon surrender of a Global Note that is redeemed
    in part, the Paying






    

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    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 €1,000 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, treaties,
    regulations or rulings of any Relevant Taxing
    Jurisdiction; 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 by virtue
    of 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; provided, further, that at the
    time such notice is given, such obligation to pay Additional
    Amounts remains in effect.



 



    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. Frankfurt 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
    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 Euro MTF Market of the Luxembourg Stock
    Exchange and the rules of such exchange so require, the Issuer
    will appoint BGL BNP Paribas Société Anonyme, or such
    other Person located in Luxembourg






    

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    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
    outstanding at any time;



 



    (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 (other than Indebtedness of the type
    covered by clause (1) or clause (2)) 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






    

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    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 the
    Issuer’s Guarantee of the Credit Facility and any
    Additional Notes), 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






    

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    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 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






    

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    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.



 



    If and so long as the Notes are listed on the Euro MTF Market of
    the Luxembourg Stock Exchange, copies of such reports shall also
    be available at the specified office of the Luxembourg Paying
    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
    integral multiples of €1,000; 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;





    

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    (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



 



    (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
    €1,000 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 and 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






    

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    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 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, and, in the case of a Default in the
    payment of interest, principal, redemption payments or any other
    amount due on the Notes or the Guarantees, such same notice to
    the Paying Agent.



 



    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
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    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 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 this Indenture and the
    Notes.





    

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    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



 



    (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.





    

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    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 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






    

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    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;



 



    (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.





    

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    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.



 



    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.





    

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    (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.



 



    (3) 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:



 



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



 



    (5) 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.



 



    (b) 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.





    

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    (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.



 



    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, 2011, 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 or Agent, as applicable, shall from time to time agree
    in writing for






    

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    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 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






    

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



 



    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.





    

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    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 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).





    

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    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 or the
    Paying Agent 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;



 



    (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
    Paying Agent or Trustee for cancellation or (ii) (A) all
    such Notes not theretofore delivered to the Paying Agent or
    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 Paying
    Agent or 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 Paying Agent or 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






    

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    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. Upon such
    discharge, the Paying Agent shall deliver the Notes to the
    Issuer, marked “paid”, or at the option of the Paying
    Agent, destroy the Notes and provide a certificate to the Issuer
    and the Trustee certifying such destruction.



 



    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 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 newspaper having general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort), if and so long as the Notes are listed
    on the Euro MTF Market of the Luxembourg Stock Exchange and the
    rules of such stock exchange shall so require, or, to the extent
    and in the manner permitted by such rules, posted on the
    official website of the Luxembourg Stock Exchange
    (www.bourse.lu), or in the case of Definitive Notes, in
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    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
    Euro MTF Market of 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) or, to the extent and in the
    manner permitted by such rules, posted on the official website
    of the Luxembourg Stock Exchange (www.bourse.lu), 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;



 



    (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.





    

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    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 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.





    

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    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, 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 its Stated Maturity, by acceleration, call
    for redemption, purchase or otherwise, legal proceedings may be
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    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 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 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:



 



    Without limiting the agreements set forth in Section 11.8,
    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 (i) FMCD’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 FMCD’s
    registered share capital (Stammkapital) or (ii) (if the
    amount of the net assets is already an amount less than the
    registered share capital) cause such amount to be further
    reduced and, in either case, thereby affecting the assets
    required for the obligatory preservation of its registered share
    capital according to section 30, 31 of the German Limited
    Liability Company Act (GmbHG) (such event a “Capital
    Impairment”). For the purposes of calculating the Capital
    Impairment, 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 this Indenture shall be disregarded. In the event
    FMCD’s net assets fall below its registered share capital,
    FMCD, upon request of the Trustee will realize in due course, to
    the extent legally permitted, any and all of its assets that are
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    value (Buchwert) that is significantly lower than the
    market value of the assets if the relevant assets are not
    necessary for FMCD’s business (nicht betriebsnotwendiges
    Vermögen).



 



    If FMCD objects to the amount demanded by the Trustee under the
    Note Guarantee within twenty (20) business days after the
    Trustee has submitted to FMCD a payment demand FMCD shall
    appoint within five (5) business days a reputable
    international auditor to determine the exact amount. The auditor
    shall notify FMCD and the Trustee of the maximum amount payable
    under the Note Guarantee within forty (40) business days
    after its appointment. The costs of such auditor’s
    determination shall be borne by FMCD. The determination of the
    auditor shall be binding for FMCD, and the Holders (except for
    manifest error). To the extent that any payment has been made
    under the Note Guarantee by FMCD that would be necessary for
    FMCD to be able to cure any Capital Impairment or Liquidity
    Impairment such payment shall immediately — upon
    FMCD’s demand — be returned to FMCD by any person
    receiving such payment, provided, however, in no event shall the
    Trustee or Paying Agent have any responsibility or liability for
    the return of any amount distributed to any Holder or beneficial
    owner of the Notes by the Trustee or Paying Agent, including,
    without limitation, any obligation to seek return of such
    amounts from such Holder or beneficial owner.



 



    If (i) FMCD does not object to the payment amount within
    the 20 business days period or (ii) if FMCD does not
    appoint the auditor within the 5 business days period or
    (iii) if the auditor fails to notify the amount payable
    within the 40 days period, then the Trustee shall be
    entitled to enforce the Note Guarantee without further delay.
    The burden of demonstration and proof (Darlegungs- und
    Beweislast) regarding the Capital Impairment and the maximum
    amount payable under the Note Guarantee shall remain with FMCD.



 



    The maximum amount payable under the guarantee shall be limited
    to the extent and as long as FMCD as a consequence of the
    payment would become unable to pay its debts when due
    (zahlungsunfähig) within the meaning of
    section 64 GmbHG (such event a “Liquidity
    Impairment”). For the purpose of establishing whether a
    Liquidity Impairment would occur, payments made by FMCD after
    the Trustee has notified FMCD of its intention to enforce the
    Note Guarantee with respect to payment obligations that are not
    due at the time of the payment shall be disregarded, unless the
    Trustee has consented to such payments (at the direction of the
    Holders of at least a majority in principal amount of the Notes
    then outstanding). From the time the Trustee has notified FMCD
    and the Company of its intention to enforce the Note Guarantee,
    the Company may not make any payment demands against FMCD under
    shareholder loans and all such payment obligations of FMCD
    towards the Company shall be deferred, subordinated or waived as
    the Company sees fit, until the Trustee notifies FMCD that it is
    no longer enforcing the Note Guarantee or the Trustee consents
    (at the direction of the Holders of at least a majority in
    principal amount of the Notes then outstanding) to the payments
    to be made to the Company. Such notice may be delivered by the
    Trustee at any time and, if not previously delivered, will be
    delivered by the Trustee after the Notes have been repaid in
    full and all other obligations under this Indenture are
    satisfied.



 



    The limitations in this Section 10.1(c) as to the Capital
    Impairment shall not apply to the extent FMCD has an adequate
    compensation claim (vollwertiger Gegenleistungs- oder
    Rückgewähranspruch) against the Company that
    compensates for any loss incurred due to any payment by FMCD
    under the Note Guarantee.



 



    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.





    

    50








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    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.



 



    (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:






    

    51








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    FMC Finance VI S.A.

    28-30, Val
    St. André,

    L-1128 Luxembourg

    Facsimile:
    011-352-263375-909

    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



 



    if to the Paying Agent:



 



    Deutsche Bank Aktiengesellschaft

    Grosse Gallusstrasse
    10-14

    60262 Frankfurt

    Germany

    Attention: Debt Services

    Telecopier.: +49 69 910 38672

    Telephone: +49 69 910 30094



 



    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).



 



    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.





    52








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    If and so long as Notes are listed on the Euro MTF Market of the
    Luxembourg Stock Exchange and the rules of such Stock Exchange
    shall so require, notices regarding the Notes given to the
    Holders will be published by the Issuer in a newspaper having
    general circulation in Luxembourg (which is expected to be the
    Luxemburger Wort) or, to the extent and in the manner
    permitted by such rules, posted on the official website of the
    Luxembourg Stock Exchange (www.bourse.lu), and 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 the
    Clearing Agency or any successor appointed by the Clearing
    Agency at the request of the Issuer, notices will be delivered
    to the Clearing Agency 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;



 



    (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;





    

    53








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    (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
    U.S. 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 Guarantors and the
    introduction of a true copy of this Indenture into evidence
    shall be conclusive and final evidence as to such matters.





    

    54








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    Section 11.8 No
    Personal Liability of Directors, Officers, Employees and
    Stockholders No member of the Board of Directors, officer,
    employee, incorporator or stockholder of the Issuer, Fresenius
    SE, 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 and agrees not to enforce
    any claim in respect of the Notes, the Indenture or the Notes
    Guarantees to the extent that it would give rise to such
    personal 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. Any payment on account of an amount that is
    payable in euros (the “Required Currency”),
    which is made to or for the account of any Holder of the Notes
    or the Trustee in lawful currency of any other jurisdiction (the
    “Judgment Currency”), whether as a result of
    any judgment or order or the enforcement thereof or the
    liquidation of the Issuer or a Guarantor, shall constitute a
    discharge of the Issuer or the Guarantor’s obligation under
    this Indenture and the Notes or Note Guarantee, as the case may
    be, only to the extent of the amount of the Required Currency
    which such holder or the Trustee, as the case may be, could
    purchase in the London foreign exchange markets with the amount
    of the Judgment Currency in accordance with normal banking
    procedures at the rate of exchange prevailing on the first
    Business Day following receipt of the payment in the Judgment
    Currency. If the amount of the Required Currency that could be
    so purchased is less than the amount of the Required Currency
    originally due to such Holder or the Trustee, as the case may
    be, the Issuer shall indemnify and hold harmless the Holder or
    the Trustee, as the case may be, from and against all loss or
    damage arising out of, or as a result of, such deficiency. This
    indemnity shall constitute an obligation separate and
    independent from the other obligations contained in this
    Indenture or the Notes, shall give rise to a separate and
    independent cause of action, shall apply irrespective of any
    indulgence granted by any Holder or the Trustee from time to
    time and shall continue in full force and effect notwithstanding
    any judgment or order for a liquidated sum in respect of an
    amount due hereunder or under any judgment or order.



 



    Section 11.15 Information. For
    so long as the Notes are listed on the Euro MTF Market of the
    Luxembourg Stock Exchange, and the rules of such stock exchange
    so require, copies of this Indenture will be made available in
    Luxembourg through the offices of the Luxembourg Paying Agent in
    such city.





    

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



 



    Very truly yours,



 



    FMC FINANCE VI S.A.



 


			
	 	    By: 
	
    /s/  Gabriele
    Dux








			
	 	        
	
    Gabriele Dux

    Director




 



    FRESENIUS MEDICAL CARE AG & CO. KGaA,

    a partnership limited by shares, represented by



 



    FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner



 


			
	 	    By: 
	
    /s/  Ben
    Lipps








			
	 	        
	
    Dr. Ben J. Lipps

    Member of the Management Board




 


			
	 	    By: 
	
    /s/  Roberto
    Fusté








			
	 	        
	
    Roberto Fusté

    Member of the Management Board




 



    FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH



 


			
	 	    By: 
	
    /s/  Rolf
    Groos








			
	 	        
	
    Rolf Groos

    Managing Director




 


			
	 	    By: 
	
    /s/  Angelo
    Mößlang








			
	 	        
	
    Angelo Mößlang

    Managing Director




 



    FRESENIUS MEDICAL CARE HOLDINGS, INC.



 


			
	 	    By: 
	
    /s/  Mark
    Fawcett










    

    56








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        Mark Fawcett

    Assistant Treasurer



 








    U.S. BANK NATIONAL ASSOCIATION,

    as Trustee



 


			
	 	    By: 
	
    /s/  Elizaberth
    C. Hammer








			
	 	        
	
    Elizabeth C. Hammer

    Vice President




 








    DEUTSCHE BANK AKTIENGESELLSCHAFT,

    as Paying Agent



 


			
	 	    By: 
	
    /s/  B.
    Birck









    B. Birck



 


			
	 	    By: 
	
    /s/  Vivien
    Wichmann









    Vivien Wichmann

    Vice President





    

    57








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    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 CLEARING AGENCY OR A NOMINEE OF THE CLEARING AGENCY. THIS
    NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
    NAME OF A PERSON OTHER THAN THE CLEARING AGENCY 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 CLEARING AGENCY OR A NOMINEE OF THE
    CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN THE LIMITED
    CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



 




    [Private
    Placement Legend]



 



    THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
    ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
    UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
    1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
    SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
    TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
    EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
    EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
    RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
    SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
    THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
    FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
    RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE
    UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
    A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
    UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR
    THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
    MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
    ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
    TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
    RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
    (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
    THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
    APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
    SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
    TO THE ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER
    OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
    IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
    OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
    JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
    HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
    EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE
    (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE
    AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
    RESALE OF THE SECURITY EVIDENCED HEREBY.





    

    A-1








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    FMC
    FINANCE VI S.A.

    



 




    5.50% Senior
    Note due 2016



 




    Common Code
    No.:          
    



 




    ISIN
    No.:          
    




    No. ­
    ­                             € ­
    ­



 



    FMC FINANCE VI S.A., a société anonyme organized under
    the laws of Luxembourg (the “Issuer”, which term
    includes any successor entity), for value received, promises to
    pay to BT Globenet Nominees Limited or its registered assigns
    upon surrender hereof the principal sum indicated on
    Schedule A hereof, on July 15, 2016.



 



    Interest Payment Dates: January 15 and July 15, commencing
    July 15, 2010



 



    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.





    

    A-2








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    IN WITNESS WHEREOF, the Company has caused this instrument to be
    duly executed.



 



    Dated: ­
    ­



 



    FMC FINANCE VI S.A.



 


			
	 	    By: 
	
        









    Name:     




    Title:



 




    Trustee’s
    Certificate of Authentication



 



    This is one of the Securities with the Guarantees endorsed
    thereon referred to in the within-mentioned Indenture.



 



    U.S. BANK NATIONAL ASSOCIATION, as Trustee



 


			
	 	    By: 
	
        









    Name:     




    Title:





    

    A-3








Table of Contents








    [FORM OF
    REVERSE]



 




    FMC
    FINANCE VI S.A.



 




    5.50% Senior
    Note due 2016



 



    1. Interest. FMC FINANCE VI S.A., a
    société anonyme 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 5.50% 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 July 15, 2010, 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 or any
    Note Guarantee 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 or engaged in
    business 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 or any Note Guarantee as if the
    Notes or any Note Guarantee 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 or any Note Guarantee, 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 a
    Relevant Taxing Jurisdiction, otherwise than by the acquisition,
    ownership, holding or disposition of the Notes, the enforcement
    of the rights under the Notes or under any Note Guarantee or the
    receipt of payments in respect of the Notes or any Note
    Guarantee, 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 or any Note Guarantee,
    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.






    

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    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% 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 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 or Guarantor (as applicable) 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 or Guarantor (as
    applicable) will use all reasonable efforts to obtain certified
    copies of tax receipts evidencing the payment by the Issuer or
    Guarantor (as applicable) of any Taxes so deducted or withheld
    from each Relevant Taxing Jurisdiction imposing such Taxes and
    will provide such certified copies to the Trustee.



 



    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. The Issuer shall pay
    principal and interest in euros. 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,
    Deutsche Bank Aktiengesellschaft will act as Paying Agent and
    U.S. Bank National Association will act 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 newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort), or posted on the official website of
    the Luxembourg Stock Exchange (www.bourse.lu), if and so long as
    the Notes are listed on the Euro MTF Market of the Luxembourg
    Stock Exchange and the rules of such stock exchange shall so
    require, 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 January 20, 2010 (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






    

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    FMCH, the “Guarantors”), U.S. Bank National
    Association (the “Trustee”) as Trustee and Deutsche
    Bank Aktiengesellschaft (the “Paying Agent”) as Paying
    Agent. This Note is one of a duly authorized issue of Notes (as
    defined in the Indenture) of the Issuer designated as its
    5.50% Senior Notes due 2016. 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 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
    €250,000,000. 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;

	 
	 	    • 
	
    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; and

	 
	 	    • 
	
    in the case of the Note Guarantee of Fresenius Medical Care
    Deutschland GmbH, be effectively subordinated to the claims of
    such Guarantor’s third-party creditors as a result of
    limitations applicable to the Note Guarantee as set forth in
    Section 10.1(c) of the Indenture.




 



    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 Bund 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 €1,000 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






    

    A-6








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    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, treaties,
    regulations or rulings of any Relevant Taxing
    Jurisdiction; 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 by virtue
    of 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; provided, further, that at the
    time such notice is given, such obligation to pay Additional
    Amounts remains in effect.



 



    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 newspaper
    having a general circulation in Luxembourg (which is expected to
    be the Luxemburger Wort), or posted on the official
    website of the Luxembourg Stock Exchange (www.bourse.lu), if and
    so long as the Notes are listed on the Euro MTF Market of the
    Luxembourg Stock Exchange and the rules of such stock exchange
    shall so require, 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 €1,000 may be redeemed
    only in whole. The Trustee may select for redemption portions
    (equal to €1,000 or any integral multiple of €1,000 in
    excess thereof) of the principal of Notes that have
    denominations larger than €1,000.



 



    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
    €1,000 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.





    

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    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.



 



    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 member of
    the Board of Directors, officer, employee, incorporator or
    stockholder of the Issuer, Fresenius SE, 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 and agrees not to enforce any claim in respect of the
    Notes, the Indenture or the Notes Guarantees to the extent that
    it would give rise to such personal 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 (=






    

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    Uniform Gifts to Minors Act). Unless otherwise defined herein,
    terms defined in the Indenture are used herein as defined
    therein.



 



    24. ISINs and Common Codes. The Issuer will
    cause ISINs
    and/or
    Common Codes 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.





    

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    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



	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 











    

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    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-11








Table of Contents








    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]



 



    THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
    ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
    UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
    1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
    SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
    TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
    EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
    EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
    RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
    SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
    THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
    FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
    RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE
    UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
    A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
    UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR
    THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
    MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
    ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
    TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
    RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
    (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
    THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
    APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER
    EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
    SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
    TO THE ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER
    OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
    IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
    OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
    JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
    HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
    EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE
    (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE
    AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR
    RESALE OF THE SECURITY EVIDENCED HEREBY.





    

    B-1








Table of Contents








    FMC
    FINANCE VI S.A.



 




    5.50% Senior
    Note due 2016



 




    Common Code
    No.:          
    



 




    ISIN
    No.:          
    




    No. ­
    ­                         € ­
    ­



 



    FMC FINANCE VI S.A., a société anonyme organized under
    the laws of Luxembourg (the “Issuer”, which term
    includes any successor entity), for value received, promises to
    pay to BT Globenet Nominees Limited or its registered assigns
    upon surrender hereof the principal sum of
    €          ,
    on July 15, 2016.



 



    Interest Payment Dates: January 15 and July 15, commencing
    July 15, 2010



 



    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.





    

    B-2








Table of Contents







    IN WITNESS WHEREOF, the Company has caused this instrument to be
    duly executed.



 



    Dated:          



 



    FMC FINANCE VI S.A.



 


			
	 	    By: 
	
        









    Name:     




    Title:



 




    Trustee’s
    Certificate of Authentication



 



    This is one of the Securities with the Guarantees endorsed
    thereon referred to in the within-mentioned Indenture.



 



    U.S. BANK NATIONAL ASSOCIATION, as Trustee



 


			
	 	    By: 
	
        









    Name:     




    Title:





    

    B-3








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    [FORM OF
    REVERSE]



 




    FMC
    FINANCE VI S.A.



 




    5.50% Senior
    Note due 2016



 



    1. Interest. FMC FINANCE VI S.A., a
    société anonyme 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 5.50% 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 July 15, 2010, 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 or any
    Note Guarantee 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 or engaged in
    business 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 or any Note Guarantee as if the
    Notes or any Note Guarantee 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 or any Note Guarantee, 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 a
    Relevant Taxing Jurisdiction, otherwise than by the acquisition,
    ownership, holding or disposition of the Notes, the enforcement
    of the rights under the Notes or under any Note Guarantee or the
    receipt of payments in respect of the Notes or any Note
    Guarantee, 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 or any Note Guarantee,
    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.






    

    B-4








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    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% 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 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 or Guarantor (as applicable) 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 or Guarantor (as
    applicable) will use all reasonable efforts to obtain certified
    copies of tax receipts evidencing the payment by the Issuer or
    Guarantor (as applicable) of any Taxes so deducted or withheld
    from each Relevant Taxing Jurisdiction imposing such Taxes and
    will provide such certified copies to the Trustee.



 



    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 euros. 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,
    Deutsche Bank Aktiengesellschaft will act as Paying Agent and
    U.S. Bank National Association will act 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 newspaper having a general
    circulation in Luxembourg (which is expected to be the
    Luxemburger Wort), or posted on the official website of
    the Luxembourg Stock Exchange (www.bourse.lu), if and so long as
    the Notes are listed on the Euro MTF Market of the Luxembourg
    Stock Exchange and the rules of such stock exchange shall so
    require, 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 January 20, 2010 (the
    “Indenture”), among the Issuer, Fresenius Medical Care
    AG & Co. KGaA (the “Company”), Fresenius
    Medical Care Holdings,






    

    B-5








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    Inc. (“FMCH”), Fresenius Medical Care Deutschland GmbH
    (“FMCD” and together with the Company and FMCH, the
    “Guarantors”), U.S. Bank National Association
    (the “Trustee”) as Trustee and Deutsche Bank
    Aktiengesellschaft (the “Paying Agent”) as Paying
    Agent. This Note is one of a duly authorized issue of Notes (as
    defined in the Indenture) of the Issuer designated as its
    5.50% Senior Notes due 2016. 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 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
    €250,000,000. 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;

	 
	 	    • 
	
    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; and

	 
	 	    • 
	
    in the case of the Note Guarantee of Fresenius Medical Care
    Deutschland GmbH, be effectively subordinated to the claims of
    such Guarantor’s third-party creditors as a result of
    limitations applicable to the Note Guarantee as set forth in
    Section 10.1(c) of the Indenture.




 



    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 Bund 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 €1,000 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






    

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    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, treaties,
    regulations or rulings of any Relevant Taxing
    Jurisdiction; 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 by virtue
    of 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; provided, further, that at the
    time such notice is given, such obligation to pay Additional
    Amounts remains in effect.



 



    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 newspaper
    having a general circulation in Luxembourg (which is expected to
    be the Luxemburger Wort), or posted on the official
    website of the Luxembourg Stock Exchange (www.bourse.lu), if and
    so long as the Notes are listed on the Euro MTF Market of the
    Luxembourg Stock Exchange and the rules of such stock exchange
    shall so require, 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 €1,000 may be redeemed
    only in whole. The Trustee may select for redemption portions
    (equal to €1,000 or any integral multiple of €1,000 in
    excess thereof) of the principal of Notes that have
    denominations larger than €1,000.



 



    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
    €1,000 and integral multiples of €1,000 in excess
    thereof.





    

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    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.



 



    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 member of
    the Board of Directors, officer, employee, incorporator or
    stockholder of the Issuer, Fresenius SE, 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 and agrees not to enforce any claim in respect of the
    Notes, the Indenture or the Notes Guarantees to the extent that
    it would give rise to such personal 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.





    

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    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. ISINs and Common Codes. The Issuer will
    cause ISINs
    and/or
    Common Codes 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-9








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    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-10








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    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-11








Table of Contents








    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.





    

    C-1








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    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 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:



 



    Without limiting the agreements set forth in Section 11.8,
    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 (i) FMCD’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 FMCD’s registered share capital
    (Stammkapital) or (ii) (if the amount of the net assets
    is already an amount less than the registered share capital)
    cause such amount to be further reduced and, in either case,
    thereby affecting the assets required for the obligatory
    preservation of its registered share capital according to
    section 30, 31 of the German Limited Liability Company Act
    (GmbHG) (such event a “Capital Impairment”). For the
    purposes of calculating the Capital Impairment, 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 this Indenture shall be disregarded.
    In the event FMCD’s net assets fall below its registered
    share capital, FMCD, 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






    

    C-2








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    the market value of the assets if the relevant assets are not
    necessary for FMCD’s business (nicht betriebsnotwendiges
    Vermögen).



 



    If FMCD objects to the amount demanded by the Trustee under the
    Note Guarantee within twenty (20) business days after the
    Trustee has submitted to FMCD a payment demand FMCD shall
    appoint within five (5) business days a reputable
    international auditor to determine the exact amount. The auditor
    shall notify FMCD and the Trustee of the maximum amount payable
    under the Note Guarantee within forty (40) business days
    after its appointment. The costs of such auditor’s
    determination shall be borne by FMCD. The determination of the
    auditor shall be binding for FMCD, and the Holders (except for
    manifest error). To the extent that any payment has been made
    under the Note Guarantee by FMCD that would be necessary for
    FMCD to be able to cure any Capital Impairment or Liquidity
    Impairment such payment shall immediately — upon
    FMCD’s demand — be returned to FMCD by any person
    receiving such payment, provided, however, in no event shall the
    Trustee or Paying Agent have any responsibility or liability for
    the return of any amount distributed to any Holder or beneficial
    owner of the Notes by the Trustee or Paying Agent, including,
    without limitation, any obligation to seek return of such
    amounts from such Holder or beneficial owner.



 



    If (i) FMCD does not object to the payment amount within
    the 20 business days period or (ii) if FMCD does not
    appoint the auditor within the 5 business days period or
    (iii) if the auditor fails to notify the amount payable
    within the 40 days period, then the Trustee shall be
    entitled to enforce the Note Guarantee without further delay.
    The burden of demonstration and proof (Darlegungs- und
    Beweislast) regarding the Capital Impairment and the maximum
    amount payable under the Note Guarantee shall remain with FMCD.



 



    The maximum amount payable under the guarantee shall be limited
    to the extent and as long as FMCD as a consequence of the
    payment would become unable to pay its debts when due
    (zahlungsunfähig) within the meaning of
    section 64 GmbHG (such event a “Liquidity
    Impairment”). For the purpose of establishing whether a
    Liquidity Impairment would occur, payments made by FMCD after
    the Trustee has notified FMCD of its intention to enforce the
    Note Guarantee with respect to payment obligations that are not
    due at the time of the payment shall be disregarded, unless the
    Trustee has consented to such payments (at the direction of the
    Holders of at least a majority in principal amount of the Notes
    then outstanding). From the time the Trustee has notified FMCD
    and the Company of its intention to enforce the Note Guarantee,
    the Company may not make any payment demands against FMCD under
    shareholder loans and all such payment obligations of FMCD
    towards the Company shall be deferred, subordinated or waived as
    the Company sees fit, until the Trustee notifies FMCD that it is
    no longer enforcing the Note Guarantee or the Trustee consents
    (at the direction of the Holders of at least a majority in
    principal amount of the Notes then outstanding) to the payments
    to be made to the Company. Such notice may be delivered by the
    Trustee at any time and, if not previously delivered, will be
    delivered by the Trustee after the Notes have been repaid in
    full and all other obligations under this Indenture are
    satisfied.



 



    The limitations as to the Capital Impairment shall not apply to
    the extent FMCD has an adequate compensation claim
    (vollwertiger Gegenleistungs- oder
    Rückgewähranspruch) against the Company that
    compensates for any loss incurred due to any payment by FMCD
    under this Note Guarantee.



 



    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-3








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    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-4








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    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 VI S.A.




    c/o U.S.
    Bank National Association




    225 Asylum Street, 23rd Floor




    Hartford, CT 06103



 


		
	    Attention: 	
    Corporate Trust and Agency Services





    Elizabeth C. Hammer



 




    RE: 5.50% Senior
    Notes due 2016
    




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



 



    Reference is hereby made to the Indenture dated as of
    January 20, 2010 (the “Indenture”) between FMC
    Finance VI 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 €1,000 and any integral
    multiple of €1,000 in excess thereof) principal amount of
    Notes beneficially held through interests in the Rule 144A
    Global Note (ISIN: XS0477568553 Common Code:
    047756855) with Euroclear and Clearstream Banking 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 (ISIN: XS0477568637 Common Code:
    047756863) in the same principal denomination and
    transferred
    to          
    (account
    no.          ).
    If this is a partial transfer, a minimum amount of €1,000
    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








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    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








Table of Contents








    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 VI S.A.




    c/o U.S.
    Bank National Association




    225 Asylum Street, 23rd Floor




    Hartford, CT 06103



 


		
	    Attention: 	
    Corporate Trust and Agency Services





    Elizabeth C. Hammer



 




    RE: 5.50% Senior
    Notes due 2016

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



 



    Reference is hereby made to the Indenture dated as of January
    20] 2010 (the “Indenture”) between FMC Finance
    VI 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 €1,000 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 (ISIN: XS0477568637 Common Code:
    047756863) with Euroclear and Clearstream Banking 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 (ISIN: XS0477568553 Common Code: 047756855)in the
    same principal denomination and transferred
    to          
    (account
    no.          ).
    If this is a partial transfer, a minimum of €1,000 and any
    integral multiple of €1,000 in excess thereof of the
    Regulation S Global Note 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.



 



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



 



    Dated: ­
    ­





    

    E-1








Table of Contents







    [Name of Transferor]



 


			
	 	    By: 
	
        









    Name:     




    Title:




    Telephone No.:



 


		
	    Please print name and address (including zip code number) 	
    

    





 





 







    

    E-2