exv4w1



 




Exhibit 4.1




EXECUTION VERSION




Published CUSIP Number: 35803GAD1




 





 





BANK CREDIT AGREEMENT




Dated as of March 31, 2006




among




FRESENIUS MEDICAL CARE AG & Co. KGaA,




FRESENIUS MEDICAL CARE HOLDINGS, INC.




and the other Borrowers and Guarantors identified herein,




BANK OF AMERICA, N.A.,




as Administrative Agent,




DEUTSCHE BANK AG NEW YORK BRANCH,




as Sole Syndication Agent,




THE BANK OF NOVA SCOTIA,




CREDIT SUISSE, CAYMAN ISLANDS BRANCH,




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,




as Co-Documentation Agents,




and




THE LENDERS PARTY HERETO




BANC OF AMERICA SECURITIES LLC




and




DEUTSCHE BANK SECURITIES INC.,




as Joint Lead Arrangers and Book Running Managers




 





 








 




TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	Page	
	 	 	 	
	
    
    ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

    	 	 	1	 
	 	
    
    SECTION 1.01 Defined Terms

    	 	 	1	 
	 	
    
    SECTION 1.02 Interpretive Provisions

    	 	 	42	 
	 	
    
    SECTION 1.03 Accounting Terms

    	 	 	43	 
	 	
    
    SECTION 1.04 Rounding

    	 	 	43	 
	 	
    
    SECTION 1.05 References to Agreements and Laws

    	 	 	43	 
	 	
    
    SECTION 1.06 Times of Day

    	 	 	44	 
	 	
    
    SECTION 1.07 Exchange Rates; Currency Equivalents

    	 	 	44	 
	 	
    
    SECTION 1.08 Additional Foreign Currencies

    	 	 	44	 
	 	
    
    SECTION 1.09 Redenomination of Certain Foreign Currencies

    	 	 	45	 
	 	
    
    SECTION 1.10 Letter of Credit Amounts

    	 	 	45	 
	 
	
    
    ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

    	 	 	45	 
	 	
    
    SECTION 2.01 Commitments

    	 	 	45	 
	 	
    
    SECTION 2.02 Borrowings, Conversions and Continuations of
    Loans

    	 	 	52	 
	 	
    
    SECTION 2.03 Interest

    	 	 	54	 
	 	
    
    SECTION 2.04 Fees

    	 	 	55	 
	 	
    
    SECTION 2.05 Repayment of Loans

    	 	 	56	 
	 	
    
    SECTION 2.06 Prepayments

    	 	 	56	 
	 	
    
    SECTION 2.07 Termination or Reduction of Commitments

    	 	 	59	 
	 	
    
    SECTION 2.08 Additional Provisions with respect to Letters
    of Credit

    	 	 	60	 
	 	
    
    SECTION 2.09 Additional Provisions relating to Domestic
    Swing Line Loans

    	 	 	67	 
	 	
    
    SECTION 2.10 Additional Provisions relating to Foreign
    Swing Line Loans

    	 	 	69	 
	 	
    
    SECTION 2.11 Additional Provisions Relating to Competitive
    Revolving Loans

    	 	 	72	 
	 	
    
    SECTION 2.12 Computation of Interest and Fees

    	 	 	76	 
	 	
    
    SECTION 2.13 Evidence of Debt

    	 	 	76	 
	 	
    
    SECTION 2.14 Payments Generally

    	 	 	77	 
	 	
    
    SECTION 2.15 Sharing of Payments

    	 	 	79	 
	 	
    
    SECTION 2.16 Designated Borrowers

    	 	 	80	 
	 	
    
    SECTION 2.17 Removal of Borrowers

    	 	 	80	 
	 
	
    
    ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

    	 	 	81	 
	 	
    
    SECTION 3.01 Taxes

    	 	 	81	 
	 	
    
    SECTION 3.02 Illegality

    	 	 	82	 
	 	
    
    SECTION 3.03 Inability to Determine Rates

    	 	 	82	 
	 	
    
    SECTION 3.04 Increased Cost and Reduced Return; Capital
    Adequacy; Reserves on Eurocurrency Loans

    	 	 	83	 
	 	
    
    SECTION 3.05 Funding Losses

    	 	 	84	 
	 	
    
    SECTION 3.06 Matters Applicable to all Requests for
    Compensation

    	 	 	85	 
	 	
    
    SECTION 3.07 Survival

    	 	 	85	 
	 
	
    
    ARTICLE IV GUARANTY

    	 	 	86	 
	 	
    
    SECTION 4.01 The Guaranty

    	 	 	86	 
	 	
    
    SECTION 4.02 Obligations Unconditional

    	 	 	88	 












 




	 	 	 	 	 	 
	 	 	Page	
	 	 	 	
	 	
    
    SECTION 4.03 Reinstatement

    	 	 	89	 
	 	
    
    SECTION 4.04 Certain Waivers

    	 	 	90	 
	 	
    
    SECTION 4.05 Remedies

    	 	 	90	 
	 	
    
    SECTION 4.06 Rights of Contribution

    	 	 	90	 
	 	
    
    SECTION 4.07 Guaranty of Payment; Continuing Guaranty

    	 	 	91	 
	 
	
    
    ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

    	 	 	91	 
	 	
    
    SECTION 5.01 Conditions of Initial Credit Extensions

    	 	 	91	 
	 	
    
    SECTION 5.02 Conditions to all Credit Extensions

    	 	 	94	 
	 
	
    
    ARTICLE VI REPRESENTATIONS AND WARRANTIES

    	 	 	95	 
	 	
    
    SECTION 6.01 Existence, Qualification and Power; Compliance
    with Laws

    	 	 	95	 
	 	
    
    SECTION 6.02 Authorization; No Contravention

    	 	 	96	 
	 	
    
    SECTION 6.03 Governmental Authorization; Other Consents

    	 	 	96	 
	 	
    
    SECTION 6.04 Binding Effect

    	 	 	96	 
	 	
    
    SECTION 6.05 Financial Statements

    	 	 	96	 
	 	
    
    SECTION 6.06 No Material Adverse Effect

    	 	 	96	 
	 	
    
    SECTION 6.07 Litigation

    	 	 	97	 
	 	
    
    SECTION 6.08 No Default

    	 	 	97	 
	 	
    
    SECTION 6.09 Ownership of Property; Liens

    	 	 	97	 
	 	
    
    SECTION 6.10 Environmental Compliance

    	 	 	97	 
	 	
    
    SECTION 6.11 Insurance

    	 	 	97	 
	 	
    
    SECTION 6.12 Taxes

    	 	 	97	 
	 	
    
    SECTION 6.13 ERISA Compliance

    	 	 	97	 
	 	
    
    SECTION 6.14 Jurisdiction of Organization, Capital Stock
    and Ownership of Credit Parties

    	 	 	98	 
	 	
    
    SECTION 6.15 Margin Regulations; Investment Company Act;
    Public Utility Holding Company Act

    	 	 	99	 
	 	
    
    SECTION 6.16 Disclosure

    	 	 	99	 
	 	
    
    SECTION 6.17 Compliance with Laws

    	 	 	99	 
	 	
    
    SECTION 6.18 Intellectual Property; Licenses, Etc

    	 	 	99	 
	 	
    
    SECTION 6.19 Pledge Agreements

    	 	 	100	 
	 	
    
    SECTION 6.20 Reimbursement from Medical Reimbursement
    Programs

    	 	 	100	 
	 
	
    
    ARTICLE VII AFFIRMATIVE COVENANTS

    	 	 	100	 
	 	
    
    SECTION 7.01 Financial Statements

    	 	 	100	 
	 	
    
    SECTION 7.02 Certificates; Other Information

    	 	 	101	 
	 	
    
    SECTION 7.03 Notification

    	 	 	103	 
	 	
    
    SECTION 7.04 Payment of Obligations

    	 	 	104	 
	 	
    
    SECTION 7.05 Preservation of Existence, Etc. 

    	 	 	104	 
	 	
    
    SECTION 7.06 Maintenance of Properties

    	 	 	105	 
	 	
    
    SECTION 7.07 Maintenance of Insurance

    	 	 	105	 
	 	
    
    SECTION 7.08 Compliance with Laws

    	 	 	105	 
	 	
    
    SECTION 7.09 Books and Records

    	 	 	105	 
	 	
    
    SECTION 7.10 Inspection Rights

    	 	 	106	 
	 	
    
    SECTION 7.11 Use of Proceeds

    	 	 	106	 
	 	
    
    SECTION 7.12 Joinder of Additional Guarantors

    	 	 	106	 




ii







 




	 	 	 	 	 	 
	 	 	Page	
	 	 	 	
	 	
    
    SECTION 7.13 Pledge of Capital Stock

    	 	 	106	 
	 	
    
    SECTION 7.14 Ownership

    	 	 	108	 
	 	
    
    SECTION 7.15 Interest Rate Protection

    	 	 	108	 
	 	
    
    SECTION 7.16 Pledge of Additional Collateral

    	 	 	108	 
	 
	
    
    ARTICLE VIII NEGATIVE COVENANTS

    	 	 	110	 
	 	
    
    SECTION 8.01 Indebtedness

    	 	 	110	 
	 	
    
    SECTION 8.02 Liens

    	 	 	112	 
	 	
    
    SECTION 8.03 Investments

    	 	 	114	 
	 	
    
    SECTION 8.04 Merger and Consolidation; Dissolution;
    Restriction on Certain Foreign Subsidiaries

    	 	 	116	 
	 	
    
    SECTION 8.05 Dispositions

    	 	 	117	 
	 	
    
    SECTION 8.06 Restricted Payments

    	 	 	118	 
	 	
    
    SECTION 8.07 Change in Nature of Business

    	 	 	118	 
	 	
    
    SECTION 8.08 Transactions with Affiliates

    	 	 	118	 
	 	
    
    SECTION 8.09 No Further Negative Pledges

    	 	 	118	 
	 	
    
    SECTION 8.10 Fiscal Year

    	 	 	119	 
	 	
    
    SECTION 8.11 Financial Covenants

    	 	 	119	 
	 
	
    
    ARTICLE IX EVENTS OF DEFAULT AND REMEDIES

    	 	 	120	 
	 	
    
    SECTION 9.01 Events of Default

    	 	 	120	 
	 	
    
    SECTION 9.02 Remedies Upon Event of Default

    	 	 	122	 
	 	
    
    SECTION 9.03 Application of Funds

    	 	 	123	 
	 
	
    
    ARTICLE X ADMINISTRATIVE AGENT

    	 	 	124	 
	 	
    
    SECTION 10.01 Appointment and Authorization of
    Administrative Agent and Collateral Agent

    	 	 	124	 
	 	
    
    SECTION 10.02 Delegation of Duties

    	 	 	125	 
	 	
    
    SECTION 10.03 Liability of Administrative Agent

    	 	 	125	 
	 	
    
    SECTION 10.04 Reliance by Administrative Agent

    	 	 	126	 
	 	
    
    SECTION 10.05 Notice of Default

    	 	 	126	 
	 	
    
    SECTION 10.06 Credit Decision; Disclosure of Information by
    Administrative Agent

    	 	 	127	 
	 	
    
    SECTION 10.07 Indemnification of Administrative Agent

    	 	 	127	 
	 	
    
    SECTION 10.08 Administrative Agent in its Individual
    Capacity

    	 	 	128	 
	 	
    
    SECTION 10.09 Successor Administrative Agent

    	 	 	128	 
	 	
    
    SECTION 10.10 Administrative Agent May File Proofs of Claim

    	 	 	129	 
	 	
    
    SECTION 10.11 Collateral and Guaranty Matters

    	 	 	129	 
	 	
    
    SECTION 10.12 Other Agents; Arrangers and Managers

    	 	 	130	 
	 
	
    
    ARTICLE XI MISCELLANEOUS

    	 	 	130	 
	 	
    
    SECTION 11.01 Amendments, Etc

    	 	 	130	 
	 	
    
    SECTION 11.02 Notices and Other Communications; Facsimile
    Copies

    	 	 	133	 
	 	
    
    SECTION 11.03 No Waiver; Cumulative Remedies

    	 	 	134	 
	 	
    
    SECTION 11.04 Attorney Costs and Expenses

    	 	 	135	 
	 	
    
    SECTION 11.05 Indemnification by the Borrowers

    	 	 	135	 
	 	
    
    SECTION 11.06 Payments Set Aside

    	 	 	136	 




iii







 




	 	 	 	 	 
	 	 	Page	
	 	 	 	
	
    
    SECTION 11.07 Successors and Assigns

    	 	 	136	 
	
    
    SECTION 11.08 Confidentiality

    	 	 	140	 
	
    
    SECTION 11.09 Set-off

    	 	 	141	 
	
    
    SECTION 11.10 Interest Rate Limitation

    	 	 	141	 
	
    
    SECTION 11.11 Counterparts

    	 	 	141	 
	
    
    SECTION 11.12 Integration; Effectiveness

    	 	 	141	 
	
    
    SECTION 11.13 Survival of Representations and Warranties

    	 	 	142	 
	
    
    SECTION 11.14 Severability

    	 	 	142	 
	
    
    SECTION 11.15 Tax Forms

    	 	 	142	 
	
    
    SECTION 11.16 Replacement of Lenders

    	 	 	144	 
	
    
    SECTION 11.17 Source of Funds

    	 	 	145	 
	
    
    SECTION 11.18 Nature of Obligations of the Borrowers

    	 	 	146	 
	
    
    SECTION 11.19 Judgment Currency

    	 	 	146	 
	
    
    SECTION 11.20 Power of Attorney

    	 	 	147	 
	
    
    SECTION 11.21 GOVERNING LAW

    	 	 	148	 
	
    
    SECTION 11.22 WAIVER OF RIGHT TO TRIAL BY JURY

    	 	 	148	 
	
    
    SECTION 11.23 ENTIRE AGREEMENT

    	 	 	149	 
	
    
    SECTION 11.24 Conflict

    	 	 	149	 
	
    
    SECTION 11.25 USA PATRIOT Act Notice

    	 	 	149	 
	
    
    SECTION 11.26 German Money Laundering Act

    	 	 	149	 
	
    
    SECTION 11.27 Additional Provisions In Respect of
    Trust Preferred Subdebt

    	 	 	149	 




iv







 




	 	 	 	 	 	 	 	 	 
	
    SCHEDULES	 	 	 	 
	 	1.01	 	 	
    Material Domestic Subsidiaries	 	 	 	 
	 	2.01	 	 	
    Commitments and Commitment Percentages	 	 	 	 
	 	2.08	 	 	
    Existing Letters of Credit	 	 	 	 
	 	2.16	 	 	
    Designated Borrowers	 	 	 	 
	 	3.04	 	 	
    Mandatory Cost Rate	 	 	 	 
	 	6.14	 	 	
    Credit Party Information	 	 	 	 
	 	8.01	 	 	
    Existing Indebtedness	 	 	 	 
	 	8.02	 	 	
    Existing Liens	 	 	 	 
	 	8.03	 	 	
    Existing Investments	 	 	 	 
	 	8.06	 	 	
    Restricted Payments	 	 	 	 
	 	8.08	 	 	
    Transactions with Affiliates	 	 	 	 
	 	11.02	 	 	
    Notice Addresses	 	 	 	 
	 	11.07	 	 	
    Processing and Recordation Fees	 	 	 	 
	 
	
    EXHIBITS	 	 	 	 
	 	2.01(g)	 	 	
    Form of Revolving Loan Joinder Agreement	 	 	 	 
	 	2.01(h)	 	 	
    Form of Incremental Tranche A Term Loan Joinder Agreement	 	 	 	 
	 	2.01(i)	 	 	
    Form of Incremental Tranche B Term Loan Joinder Agreement	 	 	 	 
	 	2.01(j)	 	 	
    Form of Tranche C Term Loan Joinder Agreement	 	 	 	 
	 	2.02	 	 	
    Form of Loan Notice	 	 	 	 
	 	2.09	 	 	
    Form of Domestic Swing Line Loan Notice	 	 	 	 
	 	2.10	 	 	
    Form of Foreign Swing Line Loan Notice	 	 	 	 
	 	2.11-1	 	 	
    Form of Competitive Revolving Loan Bid Request	 	 	 	 
	 	2.11-2	 	 	
    Form of Competitive Bid	 	 	 	 
	 	2.13	 	 	
    Form of Revolving Note	 	 	 	 
	 	2.16	 	 	
    Form of Borrower Joinder Agreement	 	 	 	 
	 	7.02	 	 	
    Form of Compliance Certificate	 	 	 	 
	 	7.12	 	 	
    Form of Guarantor Joinder Agreement	 	 	 	 
	 	11.07	 	 	
    Form of Assignment and Assumption Agreement	 	 	 	 




v







 




BANK CREDIT AGREEMENT



     
THIS BANK CREDIT AGREEMENT (“Credit Agreement”)
is entered into as of March 31, 2006, among FRESENIUS
MEDICAL CARE AG & Co. KGaA, a German partnership
limited by shares, FRESENIUS MEDICAL CARE HOLDINGS, INC., a New
York corporation, and the other Borrowers identified herein, the
Guarantors identified herein, the Lenders party hereto and BANK
OF AMERICA, N.A., as Administrative Agent.



     
WHEREAS, a $1.2 billion credit facility has been
established in favor of FMCAG, FMCH and certain subsidiaries and
affiliates pursuant to the Existing Credit Agreement, consisting
of a $750 million revolving credit facility and a
$450 million
Tranche A-1 Term
Loan;



     
WHEREAS, a $4.6 billion credit facility will be established
in favor of FMCAG, FMCH and certain subsidiaries and affiliates
pursuant to this Credit Agreement and the Term Loan Credit
Agreement, consisting of a $1.0 billion revolving credit
facility under this Credit Agreement and a $1.85 billion
Tranche A Term Loan and a $1.75 billion Tranche B
Term Loan under the Term Loan Credit Agreement;



     
WHEREAS, the loans and extensions of credit under this Credit
Agreement and the Term Loan Credit Agreement will refinance the
indebtedness owing under the Existing Credit Agreement and this
Credit Agreement will replace the commitments thereunder;



     
WHEREAS, the Lenders hereunder and under the Term Loan Credit
Agreement have agreed to make the requested facilities available
on the terms and conditions set forth herein and therein;



     
NOW, THEREFORE, in consideration of these premises and the
mutual covenants and agreements contained herein, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS



     
SECTION 1.01 Defined Terms. Capitalized terms
used but not otherwise defined herein shall have the meaning
provided in the Term Loan Credit Agreement. As used in this
Credit Agreement, the following terms shall have the meanings
set forth below:



     
“Absolute Rate” means a fixed rate of interest
expressed in multiples of 1/100th of one basis point.



     
“Absolute Rate Loan” means a Competitive
Revolving Loan that bears interest at a rate determined with
reference to an Absolute Rate.











 



     
“Acquisition” means the purchase or acquisition
by any Person of (a) more than fifty percent (50%) of the
Capital Stock of another Person (other than in respect of a
Person that is already a member of the Consolidated Group) with
ordinary voting power, (b) all or any substantial portion
of the property (other than Capital Stock) of another such
Person, whether or not involving a merger or consolidation with
such other Person or (c) assets of another Person that
constitute a business unit.



     
“Administrative Agent” means Bank of America in
its capacity as administrative agent under any of the Credit
Documents, or any successor administrative agent.



     
“Administrative Agent’s Office” means the
Administrative Agent’s address and, as appropriate, account
as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to
time notify FMCAG, FMCH and the Lenders.



     
“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by the
Administrative Agent.



     
“Affiliate” means, with respect to any Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with such other Person.



     
“AG Debt” has the meaning provided in
Section 8.01(k).



     
“Agent-Related Persons” means the
Administrative Agent, together with its Affiliates (including,
in the case of Bank of America in its capacity as the
Administrative Agent, BAS), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.



     
“Aggregate Commitments” means the Commitments
of all the Lenders.



     
“Aggregate Foreign Revolving Committed Amount”
has the meaning provided in Section 2.01(a).



     
“Aggregate Revolving Commitments” means the
Revolving Commitments of all the Lenders.



     
“Aggregate Revolving Committed Amount” has the
meaning provided in Section 2.01(a).



     
“Alternative Foreign Currency” means any
foreign currency that is not Dollars or Available Foreign
Currency.



     
“Applicable Currency” means Dollars or the
applicable Foreign Currency.



     
“Applicable Percentage” means the following
percentages per annum:



2







 




APPLICABLE PERCENTAGES FOR REVOLVING LOANS, LETTERS OF
CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurocurrency Rate		 	 	 	 
	 	 	 	 	Loans and Standby		 	Base Rate		 	Commitment	
	Pricing Level	 	Consolidated Leverage Ratio	 	Letter of Credit Fee		 	Loans		 	Fee	
	 	 	 	 	 		 	 		 	 	
	
    
    *

    	 	
    £
    *:*	 	 	*	%	 	 	*	%	 	 	*	%
	
    
    *

    	 	
     <*:* but£
     *:*	 	 	*	%	 	 	*	%	 	 	*	%
	
    
    *

    	 	
     <*:* but£
     *:*	 	 	*	%	 	 	*	%	 	 	*	%
	
    
    *

    	 	
     <*:* but£
     *:*	 	 	*	%	 	 	*	%	 	 	*	%
	
    
    *

    	 	
     <*:* but£
     *:*	 	 	*	%	 	 	*	%	 	 	*	%
	
    
    *

    	 	
     <*:*	 	 	*	%	 	 	*	%	 	 	*	%







		
	 	     
    Applicable Percentages for Revolving Loans (including Swing Line
    Loans and Letters of Credit) and the Commitment Fee will be
    based on the Consolidated Leverage Ratio as set forth in the
    most recent Compliance Certificate received by the
    Administrative Agent pursuant to Section 7.02(b). Any
    increase or decrease in such Applicable Percentage resulting
    from a change in the Consolidated Leverage Ratio shall become
    effective on the first Business Day immediately following the
    date a Compliance Certificate is delivered pursuant to
    Section 7.02(b); provided, however, that if a
    Compliance Certificate is not delivered when due in accordance
    therewith, then Pricing Level * shall apply as of the first
    Business Day after the date on which such Compliance Certificate
    was required to have been delivered until the first Business Day
    immediately following delivery thereof. The Applicable
    Percentage in effect from the Closing Date through the date for
    delivery of the first Compliance Certificate after the Closing
    Date shall be Pricing Level *; provided that until
    the earlier of (x) the tenth day after the Closing Date or
    (y) the date of the closing of the Dispositions required by
    the Federal Trade Commission in connection with the RCG
    Acquisition, the Applicable Percentage shall be
    (i) * percent (*%), in the case of Eurocurrency Rate
    Loans and the Standby Letter of Credit Fee,
    (ii) * percent (*%), in the case of Base Rate Loans
    and (iii) * percent (*%), in the case of the
    Commitment Fee.
	 
	 	     
    Determinations by the Administrative Agent of the appropriate
    Pricing Level shall be conclusive absent manifest error.



     
“Applicable Time” means, with respect to
borrowings and payments in Foreign Currencies, the local times
in the place of settlement for such Foreign Currencies as may be
determined by the Administrative Agent or, if applicable, the
Competitive Bid Agent, to be necessary for timely settlement on
the relevant date in accordance with normal banking procedures
in the place of payment as previously notified in writing to
FMCAG and FMCH.



     
“Applicant Borrower” has the meaning provided
in Section 2.16.



     
“Approved Bank” means (a) any Lender,
(b) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500 million or
(c) any bank whose short-term commercial paper rating from
S&P is at least A-1
or the equivalent thereof or from Moody’s is at least
P-1 or the equivalent
thereof.




 







		
	* 	
    Confidential treatment has been requested as to the omitted
    portions of this document in accordance with the applicable
    rules of the Securities and Exchange Commission.



3






 



     
“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.



     
“Approved Jurisdiction” means Australia,
Canada, France, Germany, Japan, Luxembourg, Switzerland, United
Kingdom, Bermuda, any other Participating Member State as of the
Closing Date, any jurisdiction of organization of a Domestic
Subsidiary and any other jurisdiction approved by the Required
Lenders.



     
“Arrangers” means BAS and DBSI, each in its
capacity as a joint lead arranger and book running manager.



     
“Assignee Group” means two or more Eligible
Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.



     
“Assignment and Assumption Agreement” means an
Assignment and Assumption Agreement substantially in the form of
Exhibit 11.07.



     
“Attorney Costs” means and includes all
reasonable fees, expenses and disbursements of any law firm or
other external counsel.



     
“Attributable Principal Amount” means
(a) in the case of capital leases, the amount of capital
lease obligations determined in accordance with GAAP,
(b) in the case of Synthetic Leases, an amount determined
by capitalization of the remaining lease payments thereunder as
if it were a capital lease determined in accordance with GAAP,
(c) in the case of Securitization Transactions, the
outstanding principal amount of such financing, after taking
into account reserve amounts and making appropriate adjustments,
determined by the Administrative Agent after consultation with
the Lenders and (d) in the case of Sale and Leaseback
Transactions, the present value (discounted in accordance with
GAAP at the debt rate implied in the applicable lease) of the
obligations of the lessee for rental payments during the term of
such lease).



     
“Available Foreign Currency” means
(a) Euros, (b) British pounds sterling, (c) Swiss
francs, (d) Japanese yen and (e) any other lawful
currency approved by all the Revolving Lenders in accordance
with Section 1.08, provided in each case that
such currency is freely available, freely transferable and
freely convertible into Dollars.



     
“Bank of America” means Bank of America, N.A.,
together with its successors.



     
“BAS” means Banc of America Securities LLC,
together with its successors.



     
“Base Rate” means for any day a fluctuating
rate per annum equal to the higher of (a) the Federal Funds
Rate plus one-half of one percent (1/2 of 1%) and
(b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its
“prime rate.” The “prime rate” is a rate set
by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below
such



4







 




announced rate. Any change in the prime rate announced by Bank
of America shall take effect at the opening of business on the
day specified in the public announcement of such change.



     
“Base Rate Loan” means a Loan that bears
interest based on the Base Rate. All Base Rate Loans shall be
denominated in Dollars.



     
“Bid Borrowing” means a borrowing consisting of
simultaneous Competitive Revolving Loans of the same Type from
each of the Revolving Lenders whose offer to make one or more
Competitive Revolving Loans as part of such borrowing has been
accepted under the auction bidding procedures described in
Section 2.11.



     
“Bid Request” means a written request for one
or more Competitive Revolving Loans substantially in the form of
Exhibit 2.11-1.



     
“Borrower Joinder Agreement” means a Borrower
Joinder Agreement substantially in the form of
Exhibit 2.16.



     
“Borrowers” means (a) FMCAG,
(b) FMCH, (c) FMCF-V, (d) the Co-Borrowers and
(e) the Designated Borrowers, in each case together with
their successors and permitted assigns and subject to the
provisions of Sections 2.16 and 2.17.



     
“Borrowing” means (a) a borrowing
consisting of simultaneous Committed Loans of the same Type, in
the same currency and having the same Interest Period,
(b) a Bid Borrowing or (c) a Swing Line Borrowing, as
appropriate.



     
“Business Day” means any day other than a
Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in,
the state where the Administrative Agent’s Lending Office
with respect to Obligations denominated in Dollars is located or
New York and (a) if such day relates to any Eurocurrency
Rate Loan denominated in a currency other than Euro,
“Business Day” means any such day on which dealings in
deposits in the relevant currency are conducted by and between
banks in the London, England or other applicable offshore
interbank market for such currency, (b) if such day relates
to any Eurocurrency Rate Loan denominated in Euro,
“Business Day” means a TARGET Day or (c) if such
day relates to any Foreign Swing Line Loan, “Business
Day” means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the
Laws of, or are in fact closed in, the jurisdiction where the
Foreign Swing Line Lender’s Lending Office with respect to
Foreign Swing Line Loans is located.



     
“Capital Stock” means (a) in the case of a
corporation, capital stock, (b) in the case of an
association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated)
of capital stock, (c) in the case of a partnership
(including, without limitation, a KGaA (Kommanditgesellschaft
auf Aktien)), partnership interests (whether general or
limited) or other equivalents (however designated) of capital
stock, (d) in the case of a limited liability company,
membership interests and (e) any other interest or
participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets
of, the issuing Person.



5







 



     
“Cash Collateralize” means to pledge and
deposit with or deliver to the Collateral Agent, for the benefit
of the L/ C Issuer and the Lenders, as collateral for the L/ C
Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to
the Collateral Agent and the L/ C Issuer.



     
“Cash Equivalents” means (a) securities
issued or directly and fully guaranteed or insured by
(i) the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the
United States is pledged in support thereof) or (ii) the
governments of Germany or the United Kingdom, in each case
having maturities of not more than twelve months from the date
of acquisition, (b) Dollar or Available Foreign Currency
denominated time deposits and certificates of deposit of any
Approved Bank, in each case with maturities of not more than
270 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six months of the date of acquisition,
(d) repurchase agreements entered into by any Person with a
bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in
excess of $500 million for direct obligations issued by or
fully guaranteed by the United States in which such Person shall
have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair
market value of at least one hundred percent (100%) of the
amount of the repurchase obligations and (e) Investments
(classified in accordance with GAAP as current assets) in money
market investment programs registered under the Investment
Company Act of 1940, as amended, that are administered by
reputable financial institutions having capital of at least
$500 million and the portfolios of which are limited to
Investments of the character described in the foregoing
subclauses hereof.



     
“CHAMPUS” means the United States Department of
Defense Civilian Health and Medical Program of the Uniformed
Services or any successor thereto, including TRICARE.



     
“Change of Control” means if the general
partner of the KGaA charged with management of FMCAG shall at
any time fail to be a Subsidiary of Fresenius AG, or if
Fresenius AG shall fail at any time to own and control more than
twenty-five percent (25%) of the Capital Stock with ordinary
voting power in FMCAG.



     
“CIA” means the Corporate Integrity Agreement
dated as of January 18, 2000 between the OIG and FMCH, as
in effect from time to time.



     
“Closing Date” means the date hereof.



     
“CMS” means the Centers for Medicare and
Medicaid Services, any successor thereof and any predecessor
thereof, including the United States Health Care Financing
Administration.



     
“Co-Borrowers” means the Subsidiaries of FMCH
that are identified on Schedule 2.16 and each
Designated Borrower that has been designated as a
“Co-Borrower”
in a Borrower Joinder Agreement executed pursuant to
Section 2.16.



6







 



     
“Co-Documentation Agents” means (i) The
Bank of Nova Scotia, (ii) Credit Suisse, Cayman Islands
Branch, (iii) Dresdner Bank AG, Niederlassung Luxemburg and
(iv) JPMorgan Chase Bank, National Association, each in
their capacity as a co-documentation agent hereunder, and their
successors in such capacity.



     
“Collateral” means a collective reference to
the collateral that is identified in, and at any time will be
covered by, the Collateral Documents.



     
“Collateral Agent” means Bank of America in its
capacity as collateral agent for the Lenders under the
Collateral Documents, together with its successors and assigns
in such capacity.



     
“Collateral Documents” means a collective
reference to the Pledge Agreements and any pledge agreement,
security agreement, mortgage, deed of trust or other agreement
or document granting a lien on or security interest in
Collateral provided by any Credit Party in connection with
Section 7.16.



     
“Commitment” means the Revolving Commitment,
the L/ C Commitment, the Swing Line Commitment and the Term Loan
Commitment.



     
“Commitment Percentages” means the Revolving
Commitment Percentage, the Tranche A Term Loan Commitment
Percentage, the Tranche B Term Loan Commitment Percentage
and/or the Tranche C Term Loan Commitment Percentage, as
context requires.



     
“Commitment Period” means the period from and
including the Closing Date to (i) in the case of Revolving
Loans and Swing Line Loans, the Termination Date, and
(ii) in the case of Letters of Credit, the Letter of Credit
Expiration Date, or, in any case, any earlier date on which the
Revolving Commitments shall have been terminated.



     
“Committed Loans” means Committed Revolving
Loans and the Term Loans.



     
“Committed Revolving Loans” has the meaning
provided in Section 2.01(a).



     
“Committed Revolving Obligations” means
Committed Revolving Loans, L/ C Obligations, Domestic Swing Line
Loans and Shared Foreign Swing Line Loans.



     
“Competitive Bid” means a written offer by a
Revolving Lender to make one or more Competitive Revolving
Loans, substantially in the form of Exhibit 2.11-2,
duly completed and signed by a Revolving Lender.



     
“Competitive Bid Agent” means (a) any
Lender that agrees to act as Competitive Bid Agent or any
successor thereto in such capacity or (b) if at any time no
Lender is willing or available to serve in such capacity, FMCH.



7







 



     
“Competitive Revolving Loan Maximum Amount” has
the meaning provided in Section 2.01(e).



     
“Competitive Revolving Loans” has the meaning
provided in Section 2.01(e).



     
“Compliance Certificate” means a certificate
substantially in the form of Exhibit 7.02.



     
“Consolidated Capital Expenditures” means, for
any period for the Consolidated Group, without duplication, all
cash expenditures during such period that, in accordance with
GAAP, are or should be included in additions to property, plant
and equipment or similar items reflected in the consolidated
statement of cash flows for such period; provided, that
Consolidated Capital Expenditures shall not include, for
purposes hereof, (i) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in
respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are
made to replace or repair such lost, destroyed, damaged or
condemned assets, equipment or other property or otherwise to
acquire assets or properties useful in the business of the
members of the Consolidated Group, (ii) expenditures made
on reinvestment of proceeds from Dispositions within the
reinvestment period under Section 2.06(b)(ii)
(regardless of whether the proceeds of the Disposition are
subject to mandatory prepayment if not reinvested) or
(iii) expenditures made in connection with a Permitted
Acquisition.



     
“Consolidated EBITDA” means, for any period for
the Consolidated Group, the sum of (i) Consolidated Net
Income, plus (ii) to the extent deducted in
determining net income, (A) Consolidated Interest Expense,
(B) tax expense based on income and (C) depreciation,
amortization and other non-cash charges (but not including, for
purposes hereof, restructuring charges which do not initially
involve a cash payment but as for which there will be a
subsequent cash payment) and up to $50 million in
restructuring charges that will be paid in cash taken from the
Closing Date through June 30, 2007, in each case on a
consolidated basis determined in accordance with GAAP. Except as
otherwise expressly provided, the applicable period shall be the
four consecutive fiscal quarters ending as of the date of
determination.



     
“Consolidated EBITDAR” means, for any period
for the Consolidated Group, the sum of (i) Consolidated
EBITDA, plus (ii) rent expense under operating
leases, in each case on a consolidated basis determined in
accordance with GAAP. Except as otherwise expressly provided,
the applicable period shall be the four consecutive fiscal
quarters ending as of the date of determination.



     
“Consolidated Excess Cash Flow” means, for any
period for the Consolidated Group, (a) reported cash flows
from operating activities, minus (b) the sum of
(i) scheduled principal payments made on Consolidated
Funded Debt (including for purposes hereof, mandatory commitment
reductions, sinking fund payments, payments in respect of the
principal components under capital leases and the like relating
thereto), (ii) Consolidated Capital Expenditures,
(iii) Permitted Acquisitions, (iv) optional
prepayments of Funded Debt (other than Revolving Loans owing
under this Credit Agreement), (v) dividend or distribution
payments by FMCAG to the extent permitted under
Section 8.06 hereof, (vi) any amounts paid
during such period as a result of the audit of the German tax
liability of FMCAG in respect of deductions taken in



8







 




respect of the writing down of FMCAG’s investment in
certain subsidiaries for German tax purposes only as of
December 31, 1997, to the extent accrued as of or before
December 31, 2002, adjusted for currency fluctuations and
interest thereon and (vii) payments under the First Amended
Settlement Agreement and Release of Claims, dated as of
February 6, 2003, among FMCH, NMC and the Official
Committee of Asbestos Personal Injury Claimants and the Official
Committee of Asbestos Property Defense Claimants, W.R. Grace
suing on behalf of the Chapter 11 Bankruptcy Estate of W.R.
Grace et al, as modified and in effect from time to time. Except
as otherwise expressly provided, the applicable period shall be
for the four (4) consecutive fiscal quarters ending as of
the date of determination.



     
“Consolidated Fixed Charge Coverage Ratio”
means, as of the end of each fiscal quarter for the period of
four consecutive fiscal quarters then ending, the ratio of
(i) Consolidated EBITDAR to (ii) Consolidated Fixed
Charges.



     
“Consolidated Fixed Charges” means, for any
period for the Consolidated Group, the sum of
(i) Consolidated Interest Expense, plus
(ii) rent expense under operating leases, plus
(iii) scheduled maturities of Consolidated Funded Debt
(excluding, for purposes hereof, scheduled maturities and
amortization of the AG Debt and the final bullet payments
relating to each of the Schuldscheindarlehen (and any
replacement or refinancing thereof), the Revolving Loans, the
Term Loans, the EIB Loan and the Trust Preferred Securities
maturing in 2008) paid during the applicable period
(provided that refinancings and extensions shall not be
considered payments or repayments for purposes hereof),
plus (iv) without duplication, Restricted Payments
made by FMCAG and payments by members of the Consolidated Group
on any Subordinated Debt (other than the AG Debt) and Trust
Preferred Securities, plus (v) cash tax payments
based on income during the applicable period; but excluding
(A) repurchases of Trust Preferred Securities in an
aggregate amount during the term of this Credit Agreement not to
exceed $50 million by members of the Consolidated Group,
provided that the Consolidated Senior Leverage Ratio
shall be less than 2.0:1.0 at the time of repurchase,
(B) any amounts paid during such period as a result of the
audit of the German tax liability of FMCAG in respect of
deductions taken in respect of the writing down of FMCAG’s
investment in certain subsidiaries for German tax purposes only
as of December 31, 1997, to the extent accrued as of or
before December 31, 2002, adjusted for currency
fluctuations, and interest thereon, and (C) any payments
made in connection with non-recurring charges taken during the
year ending December 31, 2001 by members of the
Consolidated Group in an aggregate amount not to exceed
$258 million with respect to (1) any claims of FMCAG
or any of its Subsidiaries against WRG-Conn or its Affiliates,
successors or assigns relating to the Reorganization or arising
from the Reorganization Documents, (2) any other costs
relating directly or indirectly, or arising from, the
Reorganization or the conduct of the business of FMCH or to its
Subsidiaries before the consummation of the Reorganization, in
each case, together with related costs and expenses, or
(3) any amounts payable with respect to the litigation and
other disputes with insurance companies relating to the business
of FMCH and its Subsidiaries in the period before the
consummation of the Reorganization, which relate to the
practices that were the subject of investigations by the OIG and
other Governmental Authorities, and any related costs or
expenses and any accounting charges taken by any member of the
Consolidated Group as a result thereof or relating thereto or to
the settlement of such disputes, in each case on a consolidated
basis determined in accordance



9







 




with GAAP. Except as otherwise expressly provided, the
applicable period shall be the four consecutive fiscal quarters
ending as of the date of determination.



     
“Consolidated Funded Debt” means, for the
Consolidated Group, Funded Debt determined on a consolidated
basis in accordance with GAAP, but excluding for purposes hereof
Indebtedness in respect of convertible bonds referred to in
Section 8.03(g).



     
“Consolidated Group” means FMCAG and its
Subsidiaries.



     
“Consolidated Interest Expense” means, for any
period for the Consolidated Group, all interest expense,
including the amortization of debt discount and premium, the
interest component under capital leases and the implied interest
component under Securitization Transactions, in each case on a
consolidated basis determined in accordance with GAAP. Except as
expressly provided otherwise, the applicable period shall be the
four consecutive fiscal quarters ending as of the date of
determination.



     
“Consolidated Leverage Ratio” means, as of the
last day of each fiscal quarter, the ratio of (i) the sum
of Consolidated Funded Debt on such day minus an amount
up to $30 million equal to cash and cash equivalents held
by members of the Consolidated Group with Lenders on such day,
to (ii) Consolidated EBITDA for the period of four
consecutive fiscal quarters ending on such day.



     
“Consolidated Net Income” means, for any period
for the Consolidated Group, net income (or loss) determined on a
consolidated basis in accordance with GAAP, but excluding for
purposes of determining the Consolidated Leverage Ratio and the
Consolidated Fixed Charge Coverage Ratio, extraordinary gains
and losses and gains and losses from discontinued operations,
and, in each such case, related tax effects thereon. Except as
otherwise expressly provided, the applicable period shall be the
four consecutive fiscal quarters ending as of the date of
determination.



     
“Consolidated Net Worth” means, as of any day
for the Consolidated Group, net worth determined in accordance
with GAAP, but excluding, for purposes hereof, (i) foreign
currency translation adjustments of up to $100 million at
any time and (ii) the fair value of Swap Contracts.



     
“Consolidated Senior Funded Debt” means the
difference of Consolidated Funded Debt minus Consolidated
Subordinated Debt.



     
“Consolidated Senior Leverage Ratio” means, as
of the last day of each fiscal quarter, the ratio of
(i) the sum of Consolidated Senior Funded Debt minus
cash and Cash Equivalents held by members of the Consolidated
Group in accounts maintained with a Lender in an aggregate
amount not to exceed $30 million, in each case on such day,
to (ii) Consolidated EBITDA for the period of four fiscal
quarters ending on such day.



     
“Consolidated Subordinated Debt” means
Subordinated Debt for the Consolidated Group determined on a
consolidated basis in accordance with GAAP.



10







 



     
“Contractual Obligation” means, as to any
Person, any provision of any security issued by such Person or
of any agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is bound.



     
“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. Without
limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote ten percent
(10%) or more of the securities having ordinary voting power for
the election of directors, managing general partners or the
equivalent.



     
“Credit Agreement” means this Credit Agreement.



     
“Credit Documents” means this Credit Agreement,
the Notes hereunder, the Revolving Loan Joinder Agreements, the
Collateral Documents, the Fee Letter, the Letters of Credit, the
Letter of Credit Applications, the Borrower Joinder Agreements,
the Guarantor Joinder Agreements, the Parallel Debt Agreement
and all other documents, instruments or agreements from time to
time executed by any Responsible Officer or duly authorized
signatory of a member of the Consolidated Group and delivered in
connection with this Credit Agreement.



     
“Credit Extension” means each of the following:
(a) a Borrowing, (b) the conversion or continuation of
a Borrowing, and (c) an L/ C Credit Extension.



     
“Credit Parties” means, collectively, the
Borrowers and the Guarantors.



     
“DBNY” means Deutsche Bank AG New York Branch.



     
“DBSI” means Deutsche Bank Securities Inc.



     
“Debt Rating” means long term secured senior,
non-credit enhanced debt ratings for FMCAG provided by the
Rating Services.



     
“Debt Transactions” means, with respect to any
member of the Consolidated Group, any sale, issuance or
placement of Funded Debt under Section 8.01(j) (but
specifically excluding any refinancing of any such Funded Debt,
unless Net Cash Proceeds are generated therefrom).



     
“Debtor Relief Laws” means the Bankruptcy Code
of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.



     
“Default” means any event, act or condition
that, with notice, the passage of time, or both, would
constitute an Event of Default.



11







 



     
“Default Rate” means an interest rate equal to
(a) the Base Rate plus (b) the Applicable
Percentage, if any, applicable to Base Rate Loans plus
(c) two percent (2%) per annum; provided, however,
that with respect to a Eurocurrency Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including
any Applicable Percentage) otherwise applicable to such Loan
plus two percent (2%) per annum, in each case to the
fullest extent permitted by applicable Laws.



     
“Defaulting Lender” means any Lender that
(a) has failed to fund any portion of the Revolving Loans,
participations in L/ C Obligations or participations in Swing
Line Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder
and has not cured such failure prior to the date of
determination, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of
the date when due and has not cured such failure prior to the
date of determination, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.



     
“Designated Alternative Foreign Currencies”
means (a) Canadian dollars and (b) Mexican pesos.



     
“Designated Borrower” means the Borrowers
identified on Schedule 2.16 and any Applicant
Borrower that becomes a Borrower hereunder in accordance with
the provisions of Section 2.16.



     
“Designated Borrowing Limit” means, with
respect to any Primary Borrower, the full amount of the
Aggregate Revolving Committed Amount, or in the case of
Designated Borrower, the amount set forth in the Borrower
Joinder Agreement.



     
“Disposition” or “Dispose”
means the sale, transfer or other disposition (including any
Sale and Leaseback Transaction) of any property by any Person,
including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith; provided, that
for purposes of the definition of Pro Forma Basis,
“Disposition” shall mean any Disposition to a
Person that is not a member of the Consolidated Group of
(i) more than 50% of the Capital Stock of any member of the
Consolidated Group, (ii) all or any substantial portion of
the property of any member of the Consolidated Group or
(iii) any business unit.



     
“Dollar” or “$” means the
lawful currency of the United States.



     
“Dollar Equivalent” means, at any time,
(a) with respect to any amount denominated in Dollars, such
amount, and (b) with respect to any amount denominated in a
Foreign Currency, the equivalent amount thereof in Dollars as
determined by the Administrative Agent (or, with respect to
Letters of Credit, as determined by the L/C Issuer) at such
time on the basis of the Spot Rate (determined as of the most
recent Revaluation Date) for the purchase of Dollars with such
Foreign Currency.



12







 



     
“Domestic Credit Party” means any Credit Party
that is organized under the laws of any State of the United
States or the District of Columbia.



     
“Domestic Subsidiary” means any Subsidiary that
is organized under the laws of any State of the United States or
the District of Columbia.



     
“Domestic Swing Line Borrowing” means a
borrowing of a Domestic Swing Line Loan pursuant to
Section 2.01(c).



     
“Domestic Swing Line Commitment” means, with
respect to the Domestic Swing Line Lender, the commitment of
such Lender to make Domestic Swing Line Loans hereunder, and
with respect to each Revolving Lender, the commitment of such
Lender to participate in Domestic Swing Line Loans hereunder.



     
“Domestic Swing Line Committed Amount” has the
meaning provided in Section 2.01(c).



     
“Domestic Swing Line Lender” means
(a) Bank of America and (b) any other Lender that
agrees to act as a Domestic Swing Line Lender hereunder, or in
each case any successor in such capacity.



     
“Domestic Swing Line Loans” has the meaning
provided in Section 2.01(c).



     
“Domestic Swing Line Loan Notice” means a
notice of a Domestic Swing Line Borrowing pursuant to
Section 2.09(a), which, if in writing, shall be
substantially in the form of Exhibit 2.09.



     
“Dresdner” means Dresdner Bank AG,
Niederlassung Luxemburg.



     
“EIB Loan” means the loan facilities provided
by The European Investment Bank to FMCAG pursuant to loan
documentation dated as of July 13, 2005, as amended or
modified and as in effect from time to time, and any additional
or supplemental loans provided by the European Investment Bank
on terms materially no less favorable to the Lenders.



     
“Eligible Assignee” means (a) a Lender;
(b) an Affiliate of a Lender; (c) an Approved Fund;
and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent (and, to the
extent required by Section 11.07(b) with respect to
any assignment of Revolving Commitments, the L/ C Issuers and
Swing Line Lenders), and (ii) unless an Event of Default
has occurred and is continuing, FMCAG (each such approval not to
be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee”
shall not include the Borrowers or any of the Borrowers’
Affiliates or Subsidiaries.



     
“EMU” means the economic and monetary union in
accordance with the Treaty of Rome 1957, as amended by the
Single European Act 1986, the Maastricht Treaty of 1992 and the
Amsterdam Treaty of 1998, as amended from time to time.



13







 



     
“EMU Legislation” means the legislative
measures of the European Council for the introduction of,
changeover to or operation of the Euro and any related
legislative measures of any Participating Member State.



     
“Environmental Laws” means any and all federal,
state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the
protection of the environment or the release of any materials
into the environment, including those related to hazardous
substances or wastes, air emissions and discharges to waste or
public systems.



     
“Equity Transaction” means, with respect to any
member of the Consolidated Group, any issuance or sale of shares
of its Capital Stock, other than an issuance (a) to a
member of the Consolidated Group, (b) in connection with a
conversion of debt securities to equity, (c) in connection
with the exercise by a present or former employee, officer or
director under a stock incentive plan, stock option plan or
other equity-based compensation plan or arrangement, and
(d) in connection with any Permitted Acquisition hereunder.



     
“ERISA” means the Employee Retirement Income
Security Act of 1974.



     
“ERISA Affiliate” means any trade or business
(whether or not incorporated) under common control with any
Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m)
and (o) of the Internal Revenue Code for purposes of
provisions relating to Section 412 of the Internal Revenue
Code).



     
“ERISA Event” means (a) a Reportable Event
with respect to a Pension Plan; (b) a withdrawal by FMCH or
any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by FMCH or any ERISA Affiliate
from a Multiemployer Plan or notification to FMCH or any ERISA
Affiliate that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition that could
reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any material
liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of
ERISA, upon FMCH or any ERISA Affiliate.



     
“Euro” or
“€”
means the lawful currency of the Participating Member States
adopted in accordance with the EMU Legislation.



     
“Eurocurrency Bid Margin” means the margin
above or below the Eurocurrency Rate to be added to or
subtracted from the Eurocurrency Rate, which margin shall be
expressed in multiples of 1/100th of one basis point.



14







 



     
“Eurocurrency Margin Bid Loan” means a
Competitive Revolving Loan that bears interest at a rate based
on the Eurocurrency Rate.



     
“Eurocurrency Rate” means, for any Interest
Period with respect to any Eurocurrency Rate Loan:






		
	 	     
    (a) if in relation to an advance denominated in Euros, the
    interest rate appearing on the relevant Reuters screen (as of
    the Closing Date, Reuters page EURIBOR 01) or if such page is
    not available, Telerate screen page 248 (or any successor
    thereto) as an annual interest rate, determined by the Banking
    Federation of the European Union, for deposits in Euro, as of
    11:00 a.m. (Brussels time) two Business Days prior to the
    first day of such Interest Period, or if in relation to an
    advance denominated in any other applicable currency, the rate
    per annum equal to the rate determined by the Administrative
    Agent to be the offered rate that appears on the page of the
    Telerate screen (or any successor thereto) that displays an
    average British Bankers Association Interest Settlement Rate for
    deposits in the applicable currency (for delivery on the first
    day of such Interest Period) with a term equivalent to such
    Interest Period, determined as of approximately 11:00 a.m.
    (London time) two Business Days prior to the first day of such
    Interest Period, or
	 
	 	     
    (b) if the rate referenced in the preceding clause
    (a) does not appear on such page or service or such page or
    service shall not be available, the rate per annum equal to the
    rate determined by the Administrative Agent to be the offered
    rate on such other page or other service that displays an
    average British Bankers Association Interest Settlement Rate for
    deposits in the applicable currency (for delivery on the first
    day of such Interest Period) with a term equivalent to such
    Interest Period, determined as of approximately 11:00 a.m.
    (London time) two Business Days prior to the first day of such
    Interest Period, or
	 
	 	     
    (c) if the rates referenced in the preceding clauses
    (a) and (b) are not available, the rate per annum
    determined by the Administrative Agent as the rate of interest
    at which deposits in the applicable currency for delivery on the
    first day of such Interest Period in Same Day Funds in the
    approximate amount of the Eurocurrency Rate Loan being made,
    continued or converted by Bank of America and with a term
    equivalent to such Interest Period would be offered by Bank of
    America’s London Branch to major banks in the London
    interbank eurocurrency market at their request at approximately
    11:00 a.m. (London time) two Business Days prior to the
    first day of such Interest Period;




provided that (A) notwithstanding the foregoing, in
the case of Shared Foreign Swing Line Loans that are denominated
in Mexican pesos, the “Eurocurrency Rate” shall be any
such reference rate as may be determined by the applicable
Foreign Swing Line Lender in its discretion and (B) in each
case that, if the Borrowers request and the Administrative Agent
approves any Eurocurrency Rate Loan having an Interest Period
with a duration other than one, two, three or six months (but
not longer than six months), the applicable interest rate for
such period shall be the rate determined by the Administrative
Agent by means of straight-line



15







 




interpolation of (i) the rate that would be applicable for
the next closest Interest Period otherwise available with a
duration shorter than the requested period and (ii) the
rate that would be applicable for the next closest Interest
Period otherwise available with a duration longer than the
requested period; provided that if the requested period
extends over any year-end, the higher of the two rates will
apply.



     
“Eurocurrency Rate Committed Loan” means a
Committed Revolving Loan or Term Loan that bears interest at a
rate based on the Eurocurrency Rate.



     
“Eurocurrency Rate Loan” means a Eurocurrency
Rate Committed Loan or a Eurocurrency Margin Bid Loan.
Eurocurrency Rate Loans may be denominated in Dollars or in
Available Foreign Currencies and, with respect to Competitive
Revolving Loans, may be denominated in Alternative Foreign
Currencies and, with respect to Foreign Swing Line Loans, may be
denominated in Designated Alternative Foreign Currencies. All
Loans denominated in Foreign Currencies must be Eurocurrency
Rate Loans.



     
“Event of Default” has the meaning provided in
Section 9.01.



     
“Excluded Personal Property” means (a) in
the case of personal property located in the United States, any
personal property in respect of which perfection of a lien is
not governed by the Uniform Commercial Code (such as motor
vehicles) or may be effected by the filing of a notice of lien
in respect of intellectual property with the United States
Copyright Office or the United States Patent and Trademark
Office, (b) any property that is the subject of
Securitization Transaction permitted hereunder or any related
property that is subject to the agreements relating thereto,
(c) any property that is the subject of a Lien permitted
under Section 8.02(j) (and any related property), if
and to the extent that a grant of a security interest therein as
contemplated by this Credit Agreement is prohibited or would
result in the right to terminate, accelerate the indebtedness
secured thereby, but only to the extent that any such provisions
are not rendered ineffective under the Uniform Commercial Code
or other applicable Law, and (d) any permit, lease,
license, contract or instrument, if and to the extent that a
grant of a security interest therein as contemplated by this
Credit Agreement or under applicable Law, is prohibited or would
result in the termination thereof or give the other parties
thereto the right to terminate, accelerate or otherwise
materially alter the Credit Party’s rights, titles and
interests thereunder (whether upon the giving of notice, the
lapse of time or both), but only to the extent that any such
provisions are not rendered ineffective under the Uniform
Commercial Code or other applicable Law.



     
“Excluded Securitization Transactions” means
(a) the accounts receivable financing facility of NMC
contemplated by the Third Amended and Restated Transfer and
Administration Agreement dated as of October 23, 2003,
among NMC Funding Corporation, as transferor, NMC, as collection
agent, Paradigm Funding, LLC, Giro Multi-Funding Corporation,
Asset One Securitization, LLC and Liberty Street Funding Corp.,
each as conduit investors, the financial institutions party
thereto, as investors, and Bayerische Landesbank, New York
Branch, Société General, The Bank of Nova Scotia and
WestLB AG, New York Branch, each as an administrative agent for
the investors, as amended and supplemented from time to time,
and any Permitted Receivables Financing entered into in
replacement thereof, and (b) any other Permitted
Receivables Financing, but only to the extent that the aggregate
Attributed Principal Amount of



16







 




the foregoing Securitization Transactions described in
clauses (a) and (b) hereof shall not exceed
$750 million (any greater amount being subject to the
mandatory prepayment provisions of
Section 2.06(b)(iv) hereof).



     
“Exclusion Event” means an event or events
where (a) one or more members of the Consolidated Group
other than any member of the Consolidated Group that either
ceased operations or discontinued a material portion of its
business or operations before September 30, 1999 are
excluded from participation in any state or federal Medical
Reimbursement Program and (b) in the prior fiscal year
revenues from such excluded programs generated by the members of
the Consolidated Group excluded from such programs represented
more than five percent (5%) of consolidated revenues for the
Consolidated Group.



     
“Existing Credit Agreement” means that certain
Credit Agreement dated as of February 21, 2003 among FMCAG,
FMCH and certain subsidiaries and affiliates, as borrowers,
certain subsidiaries and affiliates of FMCAG, as guarantors, the
lenders party thereto and Bank of America, N.A., as agent, as
the same has been amended or modified from time to time, as in
effect on the Closing Date immediately prior to the
effectiveness of this Credit Agreement.



     
“Existing Letters of Credit” means the letters
of credit outstanding on the Closing Date and identified on
Schedule 2.08.



     
“Federal Funds Rate” means, for any day, the
rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the
immediately preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100%)
charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.



     
“Fee Letter” means that certain letter
agreement, dated as of April 29, 2005, among FMCAG, Bank of
America, Deutsche Bank AG New York Branch and the Arrangers, as
amended or supplemented and as in effect from time to time.



     
“First-Tier Foreign Subsidiary” means any
Foreign Subsidiary that is owned directly by FMCH or a Domestic
Subsidiary of FMCH.



     
“FMCAG” means Fresenius Medical Care AG &
Co. KGaA, a German partnership limited by shares
(Kommanditgesellschaft auf Aktien), transformed under
German law from Fresenius Medical Care AG, a German corporation,
on February 10, 2006.



     
“FMCD” means Fresenius Medical Care Deutschland
GmbH, a German corporation.



17







 



     
“FMCF-V” means FMC Finance S.à r.l.
Luxembourg V, a private limited company (société
à responsabilité limitée) organized under the
laws of Luxembourg.



     
“FMCH” means Fresenius Medical Care Holdings,
Inc., a New York corporation.



     
“FMC-USDLP” means Fresenius Medical Care North
America Holdings Limited Partnership, a Delaware limited
partnership.



     
“Foreign Currencies” means lawful currencies
other than Dollars (including Available Foreign Currencies and
Alternative Foreign Currencies).



     
“Foreign Currency Equivalent” means, at any
time, with respect to any amount denominated in Dollars, the
equivalent amount thereof in the applicable Foreign Currency as
determined by the Administrative Agent at such time on the basis
of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Foreign Currency with
Dollars.



     
“Foreign Lender” has the meaning provided in
Section 11.15(a).



     
“Foreign Subsidiary” means any Subsidiary that
is not a Domestic Subsidiary.



     
“Foreign Swing Line Borrowing” means a
borrowing of a Foreign Swing Line Loan pursuant to
Section 2.01(d).



     
“Foreign Swing Line Commitment” means, with
respect to the Foreign Swing Line Lender, the commitment of such
Lender to make Foreign Swing Line Loans hereunder, and with
respect to each Revolving Lender, the commitment of such Lender
to participate in Foreign Swing Line Loans hereunder.



     
“Foreign Swing Line Committed Amount” has the
meaning provided in Section 2.01(d).



     
“Foreign Swing Line Lender” means Dresdner,
Bank of America and/or other Revolving Lenders reasonably
acceptable to the Borrowers, and their respective affiliates.
There may be more than one Foreign Swing Line Lender at any time.



     
“Foreign Swing Line Loan” has the meaning
provided in Section 2.01(d).



     
“Foreign Swing Line Loan Notice” means a notice
of a Foreign Swing Line Borrowing pursuant to
Section 2.10(a), which, if in writing, shall be
substantially in the form of Exhibit 2.10.



     
“FRB” means the Board of Governors of the
Federal Reserve System of the United States.



     
“Fresenius AG” means Fresenius AG, a German
corporation.



18







 



     
“Fund” means any Person (other than a natural
person) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit
in the ordinary course of its business.



     
“Funded Debt” means, as to any Person at a
particular time, without duplication, all of the following,
whether or not included as indebtedness or liabilities in
accordance with GAAP:






		
	 	     
    (a) all obligations for borrowed money, whether current or
    long-term (including the Obligations hereunder), and all
    obligations evidenced by bonds, debentures, notes, loan
    agreements or other similar instruments;
	 
	 	     
    (b) all purchase money indebtedness (including indebtedness
    and obligations in respect of conditional sales and title
    retention arrangements, except for customary conditional sales
    and title retention arrangements with suppliers that are entered
    into in the ordinary course of business) and all indebtedness
    and obligations in respect of the deferred purchase price of
    property or services (other than trade accounts payable incurred
    the ordinary course of business and payable on customary trade
    terms);
	 
	 	     
    (c) all obligations under financial letters of credit
    issued to support tax obligations of FMCH and its subsidiaries
    for the payment of such obligations in connection with the
    settlement of claims related to the W.R. Grace bankruptcy;
	 
	 	     
    (d) the Attributable Principal Amount of capital leases and
    Synthetic Leases;
	 
	 	     
    (e) the Attributable Principal Amount of Securitization
    Transactions;
	 
	 	     
    (f) all preferred stock and comparable equity interests
    providing for mandatory redemption, sinking fund or other like
    payments issued to a Person that is not a member of the
    Consolidated Group;
	 
	 	     
    (g) Support Obligations in respect of Funded Debt of
    another Person; and
	 
	 	     
    (h) Funded Debt of any partnership or joint venture or
    other similar entity in which such Person is a general partner
    or joint venturer, and, as such, has personal liability for such
    obligations, but only to the extent there is recourse to such
    Person for payment thereof.



     
For purposes hereof, the amount of Funded Debt shall be
determined based on the outstanding principal amount in the case
of borrowed money indebtedness under clause (a) and
purchase money indebtedness and the deferred purchase
obligations under clause (b), based on the maximum amount
available to be drawn in the case of letter of credit
obligations and the other obligations under clause (c),
and based on the amount of Funded Debt that is the subject of
the Support Obligations in the case of Support Obligations under
clause (g).



     
“GAAP” means generally accepted accounting
principles in effect in the United States applied on a
consistent basis, subject to the provisions of
Section 1.03.



19







 



     
“Governmental Authority” means any nation or
government, any state or other political subdivision thereof,
and any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the
European Union or the European Central Bank).



     
“Governmental Reimbursement Program Costs”
means with respect to and payable by members of the Consolidated
Group the sum of:






		
	 	     
    (a) all amounts (including punitive and other similar
    amounts) agreed to be paid in settlement or payable as a result
    of a final, non-appealable judgment, award or similar order
    relating to Medical Reimbursement Programs;
	 
	 	     
    (b) all final, non-appealable fines, penalties, forfeitures
    or other amounts rendered pursuant to criminal indictments or
    other criminal proceedings relating to Medical Reimbursement
    Programs; and
	 
	 	     
    (c) the amount of final, non-appealable recovery, damages,
    awards, penalties, forfeitures or similar amounts rendered in
    any litigation, suit, arbitration, investigation or other legal
    or administrative proceeding of any kind relating to Medical
    Reimbursement Programs;




provided, however, that Governmental Reimbursement
Program Costs for purposes of this Credit Agreement shall not
include any judgments, awards, fines, penalties or similar
amounts that total less than $5 million in the aggregate.



     
“Guarantor Joinder Agreement” means a Guarantor
Joinder Agreement substantially in the form of
Exhibit 7.12.



     
“Guarantors” means (a) FMCAG,
(b) FMCH, (c) FMCF-V, (d) NMC, (e) FMCD,
(f) Fresenius Medical Care Beteiligungsgesellschaft mbH,
(g) FMC Trust Finance S.à r.l. Luxembourg,
(h) FMC Finance II S.à.r.l., (i) FMC
Trust Finance S.à r.l. Luxembourg-III, (j) FMC
Finance S.à r.l. Luxembourg-IV, (k) National Medical
Care of Spain, S.A., (l) those other Subsidiaries of FMCAG
identified on the signature pages hereto as
“Guarantors” and (m) any other Person that
becomes a Guarantor after the Closing Date, in each case
together with their successors and permitted assigns and subject
to the provisions of Sections 8.04 and 8.05.



     
“HIPAA” means the Health Insurance Portability
and Accountability Act of 1996, as the same may be amended,
modified or supplemented from time to time, and any and all
rules or regulations promulgated from time to time thereunder,
including 45 CFR Parts 160, 162 and 164.



     
“Immaterial Foreign Subsidiary” means a Foreign
Subsidiary of FMCAG that is not a Credit Party and owns assets
with a fair market value of less than $5 million.



     
“Incremental Loan Facilities” has the meaning
provided in Section 2.01(f).



20







 



     
“Incremental Revolving Loans” has the meaning
provided in Section 2.01(f).



     
“Incremental Tranche A Term Loan” has the
meaning provided in Section 2.01(f).



     
“Incremental Tranche A Term Loan Joinder
Agreement” means a joinder agreement substantially in
the form of Exhibit 2.01(h) executed and delivered in
accordance with the provisions of Section 2.01(h).



     
“Incremental Tranche B Term Loan” has the
meaning provided in Section 2.01(f).



     
“Incremental Tranche B Term Loan Joinder
Agreement” means a joinder agreement substantially in
the form of Exhibit 2.01(i) executed and delivered
in accordance with the provisions of Section 2.01(i).



     
“Indebtedness” means, as to any Person at a
particular time, without duplication, all of the following,
whether or not included as indebtedness or liabilities in
accordance with GAAP:






		
	 	     
    (a) all Funded Debt;
	 
	 	     
    (b) all contingent obligations under letters of credit
    (including standby and commercial), bankers’ acceptances
    and similar instruments (including bank guaranties, surety
    bonds, comfort letters, keep-well agreements and capital
    maintenance agreements to the extent such instruments or
    agreements support financial, rather than performance,
    obligations);
	 
	 	     
    (c) net obligations under any Swap Contract;
	 
	 	     
    (d) Support Obligations in respect of Indebtedness of
    another Person; and
	 
	 	     
    (e) Indebtedness of any partnership or joint venture or
    other similar entity in which such Person is a general partner
    or joint venturer, and, as such, has personal liability for such
    obligations, but only to the extent there is recourse to such
    Person for payment thereof.



     
For purposes hereof, the amount of Indebtedness shall be
determined based on Swap Termination Value in the case of net
obligations under Swap Contracts under clause (c) and
based on the outstanding principal amount of the Indebtedness
that is the subject of the Support Obligations in the case of
Support Obligations under clause (d).



     
“Indemnified Liabilities” has the meaning set
forth in Section 11.05.



     
“Indemnitees” has the meaning set forth in
Section 11.05.



     
“Information” means all information received
from any Credit Party relating to any Credit Party or its
business, other than any such information that is available to
the



21







 




Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by any Credit Party; provided that,
in the case of information received from a Credit Party after
the date hereof, such information is clearly identified in
writing at the time of delivery as confidential.



     
“Interest Payment Date” means (a) as to
any Base Rate Loan (other than a Swing Line Loan), the last
Business Day of each March, June, September and December, the
Termination Date and the dates of the final principal
amortization installment on the Term Loans, (b) as to any
Swing Line Loan, the last Business Day of each March, June,
September and December and the Termination Date, or such other
days as may be mutually agreed upon by the Borrowers and the
Swing Line Lender, and (c) as to any Eurocurrency Rate Loan
or any Absolute Rate Loan, the last Business Day of each
Interest Period for such Loan, the date of repayment of
principal of such Loan, the Termination Date and the dates of
the final principal amortization installment on the Term Loans,
as applicable, and in addition, where the applicable Interest
Period exceeds three months, the date every three months after
the beginning of such Interest Period. If an Interest Payment
Date falls on a date that is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business
Day.



     
“Interest Period” means (a) as to each
Eurocurrency Rate Loan, the period commencing on the date such
Loan is disbursed or converted to or continued as such and
ending on (i) the date one, two, three or six months and,
in the case of Revolving Loans and the Tranche A Term Loan,
with the prior written consent of all applicable Lenders, nine
and twelve months thereafter, as selected by the applicable
Borrower in its Loan Notice, or (ii) such other date not
more than six months from the commencement thereof as requested
by the Borrower in its Loan Notice and approved by the
Administrative Agent and (b) as to each Absolute Rate Loan,
a period of not less than seven days and not more than
180 days as selected by the applicable Borrower in the Bid
Request; provided that:






		
	 	     
    (A) any Interest Period that would otherwise end on a day
    that is not a Business Day shall be extended to the next
    succeeding Business Day unless, in the case of a Eurocurrency
    Rate Loan, such Business Day falls in another calendar month, in
    which case such Interest Period shall end on the immediately
    preceding Business Day;
	 
	 	     
    (B) any Interest Period with respect to a Eurocurrency Rate
    Loan that begins on the last Business Day of a calendar month
    (or on a day for which there is no numerically corresponding day
    in the calendar month at the end of such Interest Period) shall
    end on the last Business Day of the calendar month at the end of
    such Interest Period; and
	 
	 	     
    (C) with respect to Revolving Commitments, no Interest
    Period shall extend beyond the Termination Date.



     
“Internal Revenue Code” means the Internal
Revenue Code of 1986, as in effect from time to time.



     
“Investment” means, as to any Person, any
direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition
of Capital Stock or other



22







 




securities of another Person, (b) a loan, advance or
capital contribution to, guaranty or assumption of debt of, or
purchase or other acquisition of any other debt or equity
participation or interest in (including by way of repurchase
arrangements), another Person, including any partnership or
joint venture interest in such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a
business unit. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of
such Investment.



     
“IP Rights” has the meaning set forth in
Section 6.18.



     
“IRS” means the United States Internal Revenue
Service.



     
“ISP” means, with respect to any Letter of
Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at
the time of issuance).



     
“Joinder Agreements” means any Revolving Loan
Joinder Agreement, the Incremental Tranche A Term Loan
Joinder Agreement, the Incremental Tranche B Term Loan
Joinder Agreement, the Tranche C Term Loan Joinder
Agreement and any other joinder agreement entered into in
connection with the Incremental Loan Facilities.



     
“Laws” means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation
or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof,
and all applicable administrative orders, directed duties,
requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case
whether or not having the force of law.



     
“L/ C Advance” means, with respect to each
Lender, such Lender’s funding of its participation in any
L/ C Borrowing.



     
“L/ C Borrowing” means any extension of credit
resulting from a drawing under any Letter of Credit that has not
been reimbursed or refinanced as a Borrowing of Revolving Loans.



     
“L/ C Commitment” means, with respect to the L/
C Issuer, the commitment of the L/ C Issuer to issue and to
honor payment obligations under Letters of Credit, and, with
respect to each Lender, the commitment of such Lender to
purchase participation interests in L/ C Obligations up to such
Lender’s Revolving Commitment Percentage thereof.



     
“L/ C Committed Amount” has the meaning
provided in Section 2.01(b).



     
“L/ C Credit Extension” means, with respect to
any Letter of Credit, the issuance thereof or extension of the
expiry date thereof, or the renewal or increase of the amount
thereof.



23







 



     
“L/ C Issuer” means (a) as to Existing
Letters of Credit, those Lenders identified as such on
Schedule 2.08, and (b) as to Letters of Credit
issued hereunder, (i) Bank of America, (ii) The Bank
of Nova Scotia or (iii) any other Revolving Lender that
shall agree to become an L/ C Issuer and that the Administrative
Agent may approve in its reasonable discretion, in each case in
their capacity as issuer of Letters of Credit hereunder,
together with their successors in such capacity.



     
“L/ C Obligations” means, at any time, the
Dollar Equivalent of the sum of (a) the maximum amount
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings
referenced therein, plus (b) the aggregate amount of
all Unreimbursed Amounts, including L/ C Borrowings. For
purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.10. For all
purposes of this Credit Agreement, if on any date of
determination a Letter of Credit has expired by its terms but
any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.



     
“Lender” means each of the persons identified
as a “Lender” on the signature pages hereto, on the
signature pages to the Term Loan Credit Agreement and in any
Joinder Agreement (and, as appropriate, includes the L/ C Issuer
and the Swing Line Lender), together with their respective
successors and assigns.



     
“Lending Office” means, as to any Lender, the
office or offices of such Lender set forth on
Schedule 11.02, or such other office or offices as a
Lender may from time to time notify FMCAG and the Administrative
Agent.



     
“Letter of Credit” means each Existing Letter
of Credit and each standby letter of credit issued hereunder.



     
“Letter of Credit Application” means an
application and agreement for the issuance or amendment of a
Letter of Credit.



     
“Letter of Credit Expiration Date” means the
day that is ten Business Days prior to the Termination Date then
in effect (or, if such day is not a Business Day, the
immediately preceding Business Day).



     
“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement of any kind
or nature whatsoever (including any conditional sale or other
title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing).



     
“Loan” means any Revolving Loan or Swing Line
Loan and the Base Rate Loans and Eurocurrency Rate Loans
comprising such Loans.



24







 



     
“Loan Notice” means a notice of a Borrowing
pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit 2.02.



     
“Loan Obligations” means the Revolving
Obligations and the Term Loans.



     
“Mandatory Cost Rate” means, with respect to
any period, a rate per annum determined in accordance with
Schedule 3.04.



     
“Mandatory Cost Reference Lender” means the
London branch of each of Bank of America and Dresdner.



     
“Mandatory Prepayment Modification Event” shall
occur if FMCAG shall either:






		
	 	     
    (a) obtain a rating for its unsecured non-credit enhanced
    long-term senior debt of at least BBB- or higher from S&P
    and Baa3 or higher from Moody’s; or
	 
	 	     
    (b) achieve the following financial ratios as of the end of
    any fiscal quarter:






		
	 	     
    (i) a Consolidated Leverage Ratio of less than or equal to
    2.0:1.0; and
	 
	 	     
    (ii) a ratio of Consolidated EBITDA to Consolidated
    Interest Expense of greater than or equal to 4.0:1.0.



     
“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon,
the operations, business, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of
any of the Borrowers or the Consolidated Group taken as a whole;
(b) a material impairment of the ability of any Credit
Party to perform its obligations under any Credit Document to
which it is a party; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against
any Credit Party of any Credit Document to which it is a party;
provided that, notwithstanding anything contained herein
to the contrary, for purposes of the initial Credit Extension
hereunder on the Closing Date, but only in such instance,
“Material Adverse Effect” shall mean an RCG Material
Adverse Effect.



     
“Material Domestic Subsidiary” means
(i) FMCH, (ii) NMC, (iii) those Domestic
Subsidiaries shown on Schedule 1.01, and
(iv) any Wholly Owned Domestic Subsidiary that, on an
unconsolidated basis, has at least $150 million in assets
or generates at least $30 million of Consolidated EBITDA
for the period of four consecutive fiscal quarters most recently
ended; provided, however, that for purposes hereof
(a) neither Lifechem, Inc. nor any Securitization
Subsidiary shall be considered a “Material Domestic
Subsidiary” and (b) for purposes of determining
whether any special purpose Subsidiary of FMCAG that issues or
assumes Trust Preferred Securities is a Material Domestic
Subsidiary hereunder, the proceeds of such Trust Preferred
Securities shall not be considered for the purpose of
determining assets of such Subsidiary to the extent such
proceeds have been lent as Trust Preferred Subdebt or
contributed to another member of the Consolidated Group, and any
interest in respect of any such loan shall not be considered for
the purpose of determining Consolidated EBITDA of such
Subsidiary.



25







 



     
“Material Foreign Subsidiary” means
(i) FMCD, (ii) Fresenius Medical Care
Beteiligungsgesellschaft mbH, (iii) FMCF-V, (iv) FMC
Trust Finance S.à r.l. Luxembourg, (v) FMC
Trust Finance S.à r.l. Luxembourg-III, (vi) FMC
Finance S.à r.l. Luxembourg-IV, (vii) FMC Finance II
S.à.r.l., (ix) National Medical Care of Spain, S.A.
and (x) any Wholly Owned Foreign Subsidiary that, on an
unconsolidated basis, has at least $150 million in assets
or generates at least $30 million of Consolidated EBITDA
for the period of four consecutive fiscal quarters most recently
ended; provided, however, that for purposes hereof no
Securitization Subsidiary shall be considered a “Material
Foreign Subsidiary”.



     
“Material Subsidiary” means a Material Domestic
Subsidiary or a Material Foreign Subsidiary.



     
“Medicaid” means that means-tested entitlement
program under Title XIX of the Social Security Act, which
provides federal grants to states for medical assistance based
on specific eligibility criteria, as set forth at
Section 1396, et seq. of Title 42 of the United States
Code, as amended, and any successor statute thereto.



     
“Medicaid Provider Agreement” means an
agreement entered into between a state agency or other such
entity administering the Medicaid program and a health care
provider or supplier, under which the health care provider or
supplier agrees to provide services for Medicaid patients in
accordance with the terms of the agreement and Medicaid
Regulations.



     
“Medicaid Regulations” means, collectively,
(a) all federal statutes (whether set forth in
Title XIX of the Social Security Act or elsewhere)
affecting the medical assistance program established by
Title XIX of the Social Security Act and any successor
statutes thereto; (b) all applicable provisions of all
federal rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in
connection with the statutes described in clause (a)
above and all federal administrative, reimbursement and other
guidelines of all Governmental Authorities having the force of
law promulgated pursuant to or in connection with the statutes
described in clause (a) above; (c) all state
statutes and plans for medical assistance enacted in connection
with the statutes and provisions described in clauses (a)
and (b) above; and (d) all applicable provisions of
all rules, regulations, manuals and orders of all Governmental
Authorities promulgated pursuant to or in connection with the
statutes described in clause (c) above and all state
administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated
pursuant to or in connection with the statutes described in
clause (b) above, in each case as may be amended,
supplemented or otherwise modified from time to time.



     
“Medical Reimbursement Programs” means a
collective reference to the Medicare, Medicaid, CHAMPUS and
TRICARE programs and any other health care program operated by
or financed in whole or in part by any foreign or domestic
federal, state or local government and any other non-government
funded third party payor programs.



     
“Medicare” means that government-sponsored
entitlement program under Title XVIII of the Social
Security Act, which provides for a health insurance system for
eligible elderly and



26







 




disabled individuals, as set forth at Section 1395, et seq.
of Title 42 of the United States Code, as amended, and any
successor statute thereto.



     
“Medicare Provider Agreement” means an
agreement entered into between CMS (or other such entity
administering the Medicare program on behalf of the CMS) and a
health care provider or supplier, under which the health care
provider or supplier agrees to provide services for Medicare
patients in accordance with the terms of the agreement and
Medicare Regulations.



     
“Medicare Regulations” means, collectively, all
federal statutes (whether set forth in Title XVIII of the
Social Security Act or elsewhere) affecting the health insurance
program for the aged and disabled established by
Title XVIII of the Social Security Act and any successor
statutes thereto; together with all applicable provisions of all
rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of
all Governmental Authorities (including CMS, the OIG, the United
States Department of Health and Human Services, or any person
succeeding to the functions of any of the foregoing) promulgated
pursuant to or in connection with any of the foregoing having
the force of law, as each may be amended, supplemented or
otherwise modified from time to time.



     
“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.



     
“Multiemployer Plan” means any employee benefit
plan of the type described in Section 4001(a)(3) of ERISA,
to which any Borrower or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five
plan years, has made or been obligated to make contributions.



     
“Net Cash Proceeds” means the aggregate
proceeds paid in cash or Cash Equivalents received by any member
of the Consolidated Group in connection with any Disposition,
Debt Transaction or Securitization Transaction, net of
(a) direct costs (including legal, accounting and
investment banking fees, sales commissions, and underwriting
discounts) and (b) estimated taxes paid or payable as a
result thereof. For purposes hereof, “Net Cash
Proceeds” shall include any cash or Cash Equivalents
received upon the disposition of any non-cash consideration
received by any member of the Consolidated Group in any
Disposition, Equity Transaction or Debt Transaction.



     
“NMC” means National Medical Care, Inc., a
Delaware corporation.



     
“Non-Consenting Lender” has the meaning
provided in Section 11.16.



     
“Non-Shared Foreign Swing Line Loans” has the
meaning provided in Section 2.01(d).



     
“Non-Shared Foreign Swing Line Maximum Amount”
has the meaning provided in Section 2.01(d).



     
“Note” means each of the Revolving Notes and
the Term Notes.



27







 



     
“Obligations” means, without duplication,
(a) all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any
Credit Document or otherwise with respect to any Loan or Letter
of Credit, whether direct or indirect (including those acquired
by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Credit
Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding, and (b) all obligations
under any Swap Contract of any Credit Party to which a Lender or
any Affiliate of a Lender is a party.



     
“OIG” means the Office of Inspector General of
the United States Department of Health and Human Services or any
other regulatory body which succeeds to the functions thereof.



     
“Organization Documents” means, (a) with
respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or
organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto
filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.



     
“Other Taxes” has the meaning provided in
Section 3.01(b).



     
“Outstanding Amount” means (a) with
respect to Revolving Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of
Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/ C
Obligations on any date, the amount of such L/ C Obligations on
such date after giving effect to any L/ C Credit Extension
occurring on such date and any other changes in the aggregate
amount of the L/ C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum
amount available for drawing under Letters of Credit taking
effect on such date.



     
“Overnight Rate” means, for any day,
(a) with respect to any amount denominated in Dollars, the
Federal Funds Rate and (b) with respect to any amount
denominated in a Foreign Currency, the rate of interest per
annum at which overnight deposits in the applicable Foreign
Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered
for such day by a branch or Affiliate of Bank of America located
in the applicable interbank market for such currency to major
banks in such interbank market.



     
“Parallel Debt Agreement” means that certain
Parallel Debt Agreement dated as of the Closing Date between the
Collateral Agent (and, pursuant to the powers of attorney
granted by



28







 




the Lenders pursuant to Section 11.20 hereof, each
of the Lenders) and FMCAG (and, pursuant to the power of
attorney granted to FMCAG by the other Credit Parties pursuant
to Section 11.20 hereof, each other Credit Party),
or any substantially similar agreement that creates an
obligation of the Credit Parties (as debt acknowledgement or
abstraktes Schuldanerkenntnis) in favor of the Collateral
Agent under this Credit Agreement under the Law of Germany, in
each case as amended or modified from time to time.



     
“Participant” has the meaning provided in
Section 11.07(d).



     
“Participating Member State” means any member
state of the European Union that has adopted (or that adopts)
the Euro as its lawful currency in accordance with the EMU
Legislation.



     
“PBGC” means the Pension Benefit Guaranty
Corporation.



     
“Pension Plan” means any “employee pension
benefit plan” (as such term is defined in Section 3(2)
of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by any
Borrower or any ERISA Affiliate or to which any Borrower or any
ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.



     
“Permitted Acquisition” means (a) the RCG
Acquisition and (b) any Acquisition that satisfies the
following conditions:






		
	 	     
    (i) the aggregate cost of any individual Acquisition shall
    not exceed an amount equal to the sum of
    (A) $300 million, plus (B) the fair value of
    Capital Stock given as part of the purchase price plus
    (C) any portion of Net Cash Proceeds retained by members of
    the Consolidated Group from any Equity Transaction after making
    the mandatory prepayment in respect thereof under
    Section 2.06(b)(v) and used therefor occurring no
    more than three months prior to or three months after the
    respective individual Acquisition plus (D) any
    portion of Net Cash Proceeds of any Dispositions that are
    permitted to be reinvested or retained pursuant to
    Section 2.06(b)(ii);
	 
	 	     
    (ii) the aggregate cost of all such Acquisitions in any
    calendar year shall not exceed an amount equal to the sum of (A)
    $750 million plus (B) the fair value of Capital
    Stock given as part of the purchase price plus
    (C) any portion of Net Cash Proceeds retained by the
    members of the Consolidated Group from any Equity Transaction
    after making the mandatory prepayment in respect thereof under
    Section 2.06(b)(v) and used therefor occurring no
    more than three months prior to or three months after the
    respective Acquisition plus (D) any portion of Net
    Cash Proceeds of any Dispositions that are permitted to be
    reinvested or retained pursuant to Section 2.06(b)(ii);
	 
	 	     
    (iii) in the case of an Acquisition of the Capital Stock,
    the board of directors (or other comparable governing body) of
    such other Person shall have approved the Acquisition; and



29







 






		
	 	     
    (iv) (A) no Default or Event of Default shall then
    exist and be continuing immediately before or immediately after
    giving effect thereto, (B) the Consolidated Group shall be
    in compliance with the financial covenants hereunder after
    giving effect thereto on a Pro Forma Basis, and (C) with
    respect to any Acquisition (or series of related Acquisitions)
    for which cash consideration together with the principal amount
    of Indebtedness assumed in connection therewith exceeds
    $100 million in the aggregate, a Responsible Officer of
    FMCAG shall provide a compliance certificate, in form and detail
    satisfactory to the Administrative Agent, affirming the matters
    under the foregoing subclauses.



     
“Permitted Receivables Financings” means
(a) the Securitization Transactions described in clause
(a) of the definition of “Excluded Securitization
Transactions” and (b) other Securitization
Transactions, in each case as amended and in effect from time to
time; provided that (i) with respect to all such
Securitization Transactions described in clause (b)
that are entered into after the Closing Date, (A) each such
Securitization Transaction relating to accounts receivable
originating in or payable in the United States or any state
thereof, and (B) each such Securitization Transaction
exceeding $50 million in any instance or $150 million
in the aggregate, the Administrative Agent and the Required
Lenders shall be reasonably satisfied with the structure and
documentation thereof and shall be reasonably satisfied that the
terms thereof, including the discount applicable to the subject
accounts receivable and the termination events, are (in the good
faith understanding of the Administrative Agent and the Required
Lenders) consistent with those prevailing in the market at the
time of commitment thereto for similar transactions involving a
receivables originator/servicer of similar credit quality and a
receivables pool of similar characteristics; and (ii) with
respect to all such Permitted Receivables Financings, the
documentation therefor shall not be amended or modified in a way
that is materially detrimental to the Lenders without the prior
written approval of the Administrative Agent and the Required
Lenders.



     
“Person” means any natural person, corporation,
limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.



     
“Plan” means any “employee benefit
plan” (as such term is defined in Section 3(3) of
ERISA) established by any Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue
Code or Title IV of ERISA, any ERISA Affiliate.



     
“Platform” has the meaning provided in
Section 7.02.



     
“Pledge Agreement” means those pledge
agreement(s) dated as of the Closing Date given by the members
of the Consolidated Group identified therein, as pledgors, to
the Collateral Agent, to secure the Obligations hereunder and
the Obligations under the Term Loan Credit Agreement, and any
other pledge agreements that may be given by any Person pursuant
to the terms hereof, as such pledge agreements may be amended
and modified from time to time.



     
“Primary Borrowers” means (a) FMCAG,
(b) FMCH, (c) FMCF-V, (d) FMC-USDLP, (e) any
Co-Borrower and (f) any Designated Borrower approved as a
Primary Borrower pursuant



30







 




to Section 2.16, in each case together with their
successors and permitted assigns, subject to the provisions of
Sections 2.16 and 2.17.



     
“Pro Forma Basis” means, for purposes of
determining (a) the applicable pricing level under the
definition of “Applicable Percentage,”
(b) compliance with the financial covenants hereunder
(other than the covenant limiting Consolidated Capital
Expenditures under Section 8.11(c)),
(c) Permitted Acquisitions hereunder, and (d) making
Restricted Payments hereunder, that the event or transaction
relevant to the applicable calculation shall be deemed to have
occurred as of the first day of the period of four consecutive
fiscal quarters ending as of the end of the most recent fiscal
quarter for which annual or quarterly financial statements shall
have been delivered in accordance with the provisions hereof.
Further, for purposes of making calculations on a “Pro
Forma Basis” hereunder, (i) in the case of any
Disposition, (A) income statement items (whether positive
or negative) attributable to the property, entities or business
units that are the subject of such Disposition shall be excluded
to the extent relating to any period prior to the date of such
Disposition, and (B) Indebtedness paid or retired in
connection with such Disposition shall be deemed to have been
paid and retired as of the first day of the applicable period;
and (ii) in the case of any Acquisition, (A) income
statement items (whether positive or negative, but excluding
transaction expenses and any one-time expenses incurred in
connection with the Acquisition) attributable to the property,
entities or business units that are the subject of such
acquisition shall be included to the extent relating to any
period prior to the date of such acquisition, and
(B) Indebtedness incurred in connection with the subject
transaction shall be deemed to have been incurred as of the
first day of the applicable period (and interest expense shall
be imputed for the applicable period assuming prevailing
interest rates hereunder).



     
“Rating Services” means S&P and
Moody’s.



     
“RCG” means Renal Care Group, Inc., a Delaware
corporation.



     
“RCG Acquisition” means the acquisition by a
subsidiary of FMCAG of RCG and its Subsidiaries pursuant to the
terms of the RCG Merger Agreement.



     
“RCG Material Adverse Effect” means (A) a
material adverse effect on the business, assets, liabilities,
results of operations or financial condition of RCG and its
Subsidiaries (as defined below) taken as a whole, (B) a
material adverse effect on the ability of RCG to perform its
obligations under the RCG Merger Agreement or (C) a
material adverse effect on the ability of RCG to consummate the
RCG Acquisition and the other Transactions (as defined below);
provided, that none of the following, either alone or in
combination, shall be considered in determining whether there
has been a RCG Material Adverse Effect: (1) events,
circumstances, changes or effects that generally affect
providers of dialysis services in the United States, except to
the extent that RCG and its Subsidiaries, taken as a whole, are
disproportionately affected in a material and adverse manner
relative to FMCAG and its subsidiaries, taken as a whole;
(2) any circumstance, change or effect that results
principally from any suit, action, proceeding or investigation
undertaken by or on behalf of any Governmental Entity (as
defined below) in connection with any subpoenas served upon or
claims made against RCG or any of its Subsidiaries or any
investigation conducted by the Office of Inspector General of
the United States Department of Health and Human Services, the
United States Department of Justice or



31







 




any State Governmental Entity that (A) has been publicly
disclosed by RCG in the Available RCG SEC Documents (as defined
below) or (B) relates to any violation or alleged violation
of any statute or rule or regulation promulgated by a
Governmental Entity that is generally applicable only to
participants in the health care industry by reason of their
participation in federal or state health care programs,
including Medicare and Medicaid, or their provision of health
care services to people in the United States, including 42
U.S.C.
§ 1320a-7b,
42 U.S.C. § 1395nn or 31 U.S.C. § 3729-3733 or any
other federal or state statute related to false or fraudulent
claims, kickbacks to health care providers, inducements to
beneficiaries of health care programs or self-referrals;
provided, that, for the avoidance of doubt, this
clause (2)(B) shall prohibit consideration of the
existence of any such suit, action, proceeding or investigation
when determining whether a RCG Material Adverse Effect exists
but shall not prohibit consideration of actual events or
circumstances constituting a violation of any such statute or
rule or regulation or other Law (as defined below);
(3) general economic or political conditions, except to the
extent that RCG and its Subsidiaries, taken as a whole, are
disproportionately affected in a material and adverse manner
relative to FMCAG and its subsidiaries, taken as a whole;
(4) changes arising from the consummation of the
transactions contemplated by, or the announcement of the
execution of, the RCG Merger Agreement; (5) any
circumstance, change or effect that results from any action
required to be taken pursuant to the RCG Merger Agreement or
taken upon the written request of FMCAG; and (6) changes
caused by acts of terrorism or war (whether or not declared)
occurring after the date hereof, except to the extent that RCG
and its Subsidiaries, taken as a whole, are disproportionately
affected in a material and adverse manner relative to FMCAG and
its subsidiaries, taken as a whole; as used in this definition:
(I) “Subsidiary” of any person means another
person of which such first person, (i) directly or
indirectly owns an amount of the voting securities, other voting
ownership or voting partnership interests having voting power
under ordinary circumstances sufficient to elect at least fifty
percent (50%) of its board of directors or other governing body
or (ii) owns directly or indirectly fifty percent (50%) or
more of its equity interests or (iii) of which such first
person is a general partner; (II)
“Transactions” means all transactions (other
than the RCG Acquisition) contemplated by the RCG Merger
Agreement; (III) “Governmental Entity” means
any national, federal, state, provincial, local or foreign
government or any court of competent jurisdiction,
administrative agency or commission or other governmental or
regulatory authority or instrumentality, domestic or foreign;
(IV) “Available RCG SEC Documents” means the
reports, schedules, forms, statements and other documents filed
by RCG with the SEC or furnished by RCG to the SEC, and in
either case, publicly available prior to the date of the RCG
Merger Agreement; and (V) “Law” means any
federal, state, local, regional or foreign statute, law,
ordinance, rule, reporting or licensing requirement or
regulation applicable to RCG or any of its Subsidiaries or their
respective properties or assets.



     
“RCG Merger Agreement” means the Agreement,
dated as of May 3, 2005, by and among FMCAG and FMCH and
Florence Acquisition, Inc., a Delaware corporation and a
newly-formed wholly-owned subsidiary of FMCH, on the one hand,
and RCG, on the other hand as amended, modified, and
supplemented to the extent any material modifications are
approved by Bank of America and DBNY.



32







 



     
“RCG Sub Debt” means those 9% Senior
Subordinated Notes of National Nephrology Associates,
Incorporated, a Delaware corporation, due 2011, in an aggregate
original principal amount of $160 million.



     
“Register” has the meaning set forth in
Section 11.07(c).



     
“Reorganization” means the reorganization and
transactions contemplated by the Reorganization Documents.



     
“Reorganization Documents” means, collectively,
(i) the Agreement and Plan of Reorganization dated as of
February 4, 1996, by and between FMCH (then known as W.R.
Grace & Co.) and Fresenius AG, as amended, (ii) the
Distribution Agreement dated as of February 4, 1996, among
FMCH (then known as W.R. Grace & Co.), Fresenius AG and
WRG-Conn and (iii) the Contribution Agreement dated as of
February 4, 1996, among Fresenius AG, Steril Pharma GmbH
and WRG-Conn.



     
“Reportable Event” means any of the events set
forth in Section 4043(c) of ERISA, other than events for
which the thirty-day notice period has been waived.



     
“Request for Credit Extension” means
(a) with respect to a Borrowing, conversion or continuation
of Revolving Loans, a Loan Notice, (b) with respect to an
L/ C Credit Extension, a Letter of Credit Application, and
(c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.



     
“Required Lenders” means, as of any date of
determination, Lenders having more than fifty percent (50%) of
the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make
L/ C Credit Extensions have been terminated pursuant to
Section 9.02, Lenders holding in the aggregate more
than fifty percent (50%) of the Loan Obligations (including, in
each case, the aggregate amount of each Lender’s risk
participation and funded participation in L/ C Obligations and
Swing Line Loans); provided that the Commitment of, and
the portion of the Loan Obligations held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



     
“Required Revolving Lenders” means, as of any
date of determination, Lenders having more than fifty percent
(50%) of the Aggregate Revolving Commitments or, if the
commitment of each Lender to make Revolving Loans and the
obligation of the L/ C Issuer to make L/ C Credit Extensions
have been terminated pursuant to Section 9.02,
Lenders holding in the aggregate more than fifty percent (50%)
of the Revolving Obligations (including, in each case, the
aggregate amount of each Lender’s risk participation and
funded participation in L/ C Obligations and Swing Line Loans);
provided that the Revolving Commitment of, and the
portion of the Revolving Obligations held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a
determination of Required Revolving Lenders.



     
“Required Tranche A Term Lenders” means,
as of any date of determination, Lenders holding in the
aggregate more than fifty percent (50%) of the Tranche A
Term Loan; provided



33







 




that the portion of the Tranche A Term Loan held or deemed
held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Tranche A Term Lenders.



     
“Required Tranche B Term Lenders” means,
as of any date of determination, Lenders holding in the
aggregate more than fifty percent (50%) of the Tranche B
Term Loan; provided that the portion of the
Tranche B Term Loan held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination
of Required Tranche B Term Lenders.



     
“Required Tranche C Term Lenders” means,
as of any date of determination, Lenders holding in the
aggregate more than fifty percent (50%) of the Tranche C
Term Loan; provided that the portion of the
Tranche C Term Loan held or deemed held by any Defaulting
Lender shall be excluded for purposes of making a determination
of Required Tranche C Term Lenders.



     
“Responsible Officer” means the chief executive
officer, president, chief financial officer, senior vice
president-finance, treasurer, assistant treasurer or managing
director of a Credit Party (or in the case of a Credit Party
that is a partnership, limited liability company or similarly
organized entity, including without limitation FMCAG and
FMC-USDLP, 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). Any document delivered hereunder that is signed by a
Responsible Officer of a Credit Party shall be conclusively
presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Credit Party
and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Credit Party.



     
“Restricted Payment” means (i) any
dividend or other distribution, direct or indirect, on account
of any shares of any class of stock now or hereafter
outstanding, except a dividend payable solely in shares of that
class to the holders of that class, of FMCAG, (ii) any
redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of FMCAG now or hereafter
outstanding, and (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of FMCAG.



     
“Revaluation Date” means each of the following:
(a) each date of a Credit Extension of a Eurocurrency Rate
Loan denominated in a Foreign Currency, (b) each date of an
L/ C Credit Extension with respect to Letters of Credit
denominated in a Foreign Currency, (c) each honor date of
any Letter of Credit denominated in a Foreign Currency,
(d) each date of a Credit Extension of a Foreign Swing Line
Loan and (e) any other date specified by the Administrative
Agent or the Required Lenders.



     
“Revolving Commitment” means, with respect to
each Revolving Lender, the commitment of such Lender to make
Committed Revolving Loans (and to share in the Committed
Revolving Obligations) hereunder.



     
“Revolving Commitment Percentage” means, for
each Revolving Lender, a fraction (expressed as a percentage
carried to the ninth decimal place), the numerator of which is
such



34







 




Revolving Lender’s Revolving Committed Amount and the
denominator of which is the Aggregate Revolving Committed
Amount. The initial Revolving Commitment Percentages are shown
on Schedule 2.01.



     
“Revolving Committed Amount” means, with
respect to each Revolving Lender, the amount of such
Lender’s Revolving Commitment. The initial Revolving
Committed Amounts are shown on Schedule 2.01.



     
“Revolving Lender” means those Lenders with
Revolving Commitments.



     
“Revolving Loan Joinder Agreements” means any
Revolving Loan Joinder Agreement entered into in connection with
the increase of the Revolving Commitments pursuant to
Section 2.01(g).



     
“Revolving Loans” means Committed Revolving
Loans and Competitive Revolving Loans.



     
“Revolving Note” means the promissory notes
given to each Revolving Lender to evidence the Revolving Loans
and Swing Line Loans, as amended, restated, modified,
supplemented, extended, renewed or replaced. A form of Revolving
Note is attached as Exhibit 2.13.



     
“Revolving Obligations” means Revolving Loans,
L/ C Obligations and Swing Line Loans.



     
“S&P” means Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc.
and any successor thereto.



     
“Sale and Leaseback Transaction” means, with
respect to any Borrower or any Subsidiary, any arrangement,
directly or indirectly, with any person whereby such Borrower or
such Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property
or other property that it intends to use for substantially the
same purpose or purposes as the property being sold or
transferred.



     
“Same Day Funds” means (a) with respect to
disbursements and payments in Dollars, immediately available
funds, and (b) with respect to disbursements and payments
in a Foreign Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the
place of disbursement or payment for the settlement of
international banking transactions in such Foreign Currency.



     
“Schuldscheindarlehen” means the senior notes
issued by FMC Finance S.à r.l. Luxembourg-IV, a Wholly
Owned Subsidiary of FMCAG, in an aggregate principal amount of
€
200 million, and the guarantee by FMCAG of such
notes, pursuant to agreements dated as of July 27, 2005, as
amended or modified and as in effect from time to time.



35







 



     
“SEC” means the Securities and Exchange
Commission, or any Governmental Authority succeeding to any of
its principal functions.



     
“Securitization Subsidiary” has the meaning
provided in the definition of “Securitization
Transaction.”



     
“Securitization Transaction” means any
financing or factoring or similar financing transaction (or
series of such transactions) entered by any member of the
Consolidated Group pursuant to which such member of the
Consolidated Group may sell, convey or otherwise transfer, or
grant a security interest in, accounts, payments, receivables,
rights to future lease payments or residuals or similar rights
to payment (the “Securitization Receivables”)
to a special purpose subsidiary or affiliate (a
”Securitization Subsidiary”) or any other
Person; provided, that, for the purposes of
clarification, sales of accounts, payments, receivables and
similar rights of payment on a non-recourse basis by Foreign
Subsidiaries of FMCAG to Persons that are not members of the
Consolidated Group in an aggregate amount not to exceed
$150 million in any fiscal year that are treated as
Dispositions under Section 8.05(h) shall not
constitute Securitization Transactions.



     
“Shared Foreign Swing Line Loans” has the
meaning provided in Section 2.01(d).



     
“Spot Rate” means, for a currency, the rate
quoted by Bank of America (or the L/ C Issuer or, pursuant to
Section 1.07, the Foreign Swing Line Lender or the
Competitive Bid Agent, as applicable) as the spot rate for the
purchase by Bank of America (or the L/ C Issuer or, pursuant to
Section 1.07, the Foreign Swing Line Lender or the
Competitive Bid Agent, as applicable) of such currency with
another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business
Days prior to the date as of which the foreign exchange
computation is made; provided that the spot rate may be
obtained from another financial institution designated by, or
otherwise acceptable to, the Administrative Agent if the Person
acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency, and
provided further that the L/ C Issuer may use the
spot rate quoted on the day on which the foreign exchange
computation is made in the case of drawing under a Letter of
Credit.



     
“Subordinated Debt” means (a) the
Trust Preferred Subdebt, (b) the AG Debt, and
(c) any other Indebtedness of a member of the Consolidated
Group that by its terms is expressly subordinated in right of
payment to the prior payment of the Loan Obligations hereunder
and is in form and substance satisfactory to the Administrative
Agent and the Required Lenders.



     
“Subsidiary” of a Person means a corporation,
partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election
of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise provided, all references herein to a
“Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of FMCAG.



36







 



     
“Support Obligations” means, as to any Person,
(a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by
another Person (the “primary obligor”) in any manner,
whether directly or indirectly (other than endorsements in the
ordinary course of business of negotiable instruments for
deposit or collection), and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of
the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness
or other obligation is assumed by such Person. The amount of any
Support Obligations (subject to any limitations set forth
therein) shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or
portion thereof, in respect of which such Support Obligation is
made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith.



     
“Swap Contract” means (a) any and all rate
swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, that
are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any
such master agreement, together with any related schedules, a
“Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     
“Swap Termination Value” means, in respect of
any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date
such Swap Contracts have been closed out and termination values
determined in accordance therewith, such termination values, and
(b) for any date prior to the date referenced in clause
(a), the amounts determined as the mark-to-market values for
such Swap Contracts, as determined based upon one or more
mid-market or other



37







 




readily available quotations provided by any recognized dealer
in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).



     
“Swing Line Borrowing” means a Domestic Swing
Line Borrowing and a Foreign Swing Line Borrowing.



     
“Swing Line Commitment” means the Domestic
Swing Line Commitment and the Foreign Swing Line Commitment.



     
“Swing Line Committed Amount” means the
Domestic Swing Line Committed Amount and the Foreign Swing Line
Committed Amount.



     
“Swing Line Lender” means the Domestic Swing
Line Lender or the Foreign Swing Line Lender, as appropriate.



     
“Swing Line Loan Notice” means a Domestic Swing
Line Loan Notice or a Foreign Swing Line Loan Notice, as
appropriate.



     
“Swing Line Loans” means Domestic Swing Line
Loans, Shared Foreign Swing Line Loans and Non-Shared Foreign
Swing Line Loans.



     
“Synthetic Lease” means any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing arrangement that is considered
borrowed money indebtedness for tax purposes but is classified
as an operating lease under GAAP.



     
“Taxes” has the meaning provided in
Section 3.01(a).



     
“TARGET Day” means any day on which the
Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System (or, if such clearing system
ceases to be operative, such other clearing system, if any,
determined by the Administrative Agent to be a suitable
replacement) is operating.



     
“Term Loan” means the Tranche A Term Loan,
(including any Incremental Tranche A Term Loan), the
Tranche B Term Loan (including any Incremental
Tranche B Term Loans) and the Tranche C Term Loan (and
any other term loan established under the Incremental Loan
Facilities), if any.



     
“Term Loan Commitments” means the
Tranche A Term Loan Commitment, the Tranche B Term
Loan Commitment and the Tranche C Term Loan Commitment (and
the commitments of any other term loan established under the
Incremental Loan Facilities), if any.



     
“Term Loan Credit Agreement” means the Term
Loan Credit Agreement, dated as of the date hereof, as amended,
modified, extended or renewed, among FMCAG, FMCH and the
subsidiaries and affiliates identified therein, as borrowers,
FMCAG, FMCH and the subsidiaries and affiliates identified
therein, as guarantors, the lenders identified therein and Bank
of America, N.A., as administrative agent, pursuant to which the
Tranche A Term Loan and



38







 




Tranche B Term Loan are made and pursuant to which the
Tranche C Term Loan and certain other term loans may be
established under the Incremental Loan Facilities.



     
“Term Notes” means the Tranche A Term
Notes, the Tranche B Term Notes and Tranche C Term
Notes and Notes evidencing any other term loan that may be
established under the Incremental Loan Facilities.



     
“Termination Date” means March 31, 2011.



     
“Tranche A Term Lenders” means, prior to
the funding of the initial Tranche A Term Loan on the
Closing Date or any Incremental Tranche A Term Loan, as
applicable, those Lenders with Tranche A Term Loan
Commitments, and after funding of the Tranche A Term Loan
(including any Incremental Tranche A Term Loan), those
Lenders holding a portion of the Tranche A Term Loan
(including any Incremental Tranche A Term Loan), together
with their successors and permitted assigns. The initial
Tranche A Term Lenders are identified on the signature
pages to the Term Loan Credit Agreement and are set forth on
Schedule 2.01 thereto.



     
“Tranche A Term Loan” has the meaning
provided in the Term Loan Credit Agreement.



     
“Tranche A Term Loan Commitment” means,
for each Tranche A Term Lender, the commitment of such
Lender to make a portion of the Tranche A Term Loan
(including any Incremental Tranche A Term Loan) hereunder;
provided that, at any time after funding of the
Tranche A Term Loan, determinations of “Required
Lenders” and “Required Tranche A Term
Lenders” shall be based on the outstanding principal amount
of the Tranche A Term Loan.



     
“Tranche A Term Loan Commitment
Percentage” means, for each Tranche A Term Lender,
a fraction (expressed as a percentage carried to the ninth
decimal place), the numerator of which is the principal amount
of such Lender’s Tranche A Term Loan (including any
Incremental Tranche A Term Loan), and the denominator of
which is the Outstanding Amount of the Tranche A Term Loan
(including any Incremental Tranche A Term Loan). The
initial Tranche A Term Loan Commitment Percentages are set
forth on Schedule 2.01 to the Term Loan Credit Agreement.



     
“Tranche A Term Loan Committed Amount”
means, for each Tranche A Term Lender, the amount of such
Lender’s Tranche A Term Loan Commitment. The initial
Tranche A Term Loan Committed Amounts are set forth on
Schedule 2.01 to the Term Loan Credit Agreement, and, with
respect to any Incremental Tranche A Term Loan, the
Tranche A Term Loan Committed Amount with respect thereto
will be set forth in the Incremental Tranche A Term Loan
Joinder Agreement.



     
“Tranche A Term Note” means the promissory
notes, if any, given to evidence the Tranche A Term Loans,
as amended, restated, modified, supplemented, extended, renewed
or replaced.



     
“Tranche B Term Lenders” means, prior to
the funding of the initial Tranche B Term Loan on the
Closing Date or any Incremental Tranche B Term Loan, as
applicable, those Lenders with Tranche B Term Loan
Commitments, and after funding of the Tranche B Term Loan
(including any Incremental Tranche B Term Loan), those



39







 




Lenders holding a portion of the Tranche B Term Loan
(including any Incremental Tranche B Term Loan), together
with their successors and permitted assigns. The initial
Tranche B Term Lenders are identified on the signature
pages to the Term Loan Credit Agreement and are set forth on
Schedule 2.01 thereto.



     
“Tranche B Term Loan” has the meaning
provided in the Term Loan Credit Agreement.



     
“Tranche B Term Loan Commitment” means,
for each Tranche B Term Lender, the commitment of such
Lender to make a portion of the Tranche B Term Loan
(including any Incremental Tranche B Term Loan) hereunder;
provided that, at any time after funding of the initial
Tranche B Term Loan, determinations of “Required
Lenders” and “Required Tranche B Term
Lenders” shall be based on the outstanding principal amount
of the Tranche B Term Loan.



     
“Tranche B Term Loan Commitment
Percentage” means, for each Tranche B Term Lender,
a fraction (expressed as a percentage carried to the ninth
decimal place), the numerator of which is the principal amount
of such Lender’s Tranche B Term Loan (including any
Incremental Tranche B Term Loan) and the denominator of
which is the Outstanding Amount of the Tranche B Term Loan
(including any Incremental Tranche B Term Loan). The
initial Tranche B Term Loan Commitment Percentages are set
forth on Schedule 2.01 to the Term Loan Credit Agreement.



     
“Tranche B Term Loan Committed Amount”
means, for each Tranche B Term Lender, the amount of such
Lender’s Tranche B Term Loan Commitment. The initial
Tranche B Term Loan Committed Amounts are set forth on
Schedule 2.01 to the Term Loan Credit Agreement, and, with
respect to any Incremental Tranche B Term Loan, the
Tranche B Term Loan Committed Amount with respect thereto
will be set forth in the Incremental Tranche B Term Loan
Joinder Agreement.



     
“Tranche B Term Note” means the promissory
notes, if any, given to evidence the Tranche B Term Loans,
as amended, restated, modified, supplemented, extended, renewed
or replaced.



     
“Tranche C Term Lenders” means, upon
establishment of a Tranche C Term Loan, those Lenders
holding a portion of the Tranche C Term Loan, together with
their successors and permitted assigns. The initial
Tranche C Term Lenders will be identified in the
Tranche C Term Loan Joinder Agreement.



     
“Tranche C Term Loan” has the meaning
provided in Section 2.01(f).



     
“Tranche C Term Loan Commitment” means
upon establishment of a Tranche C Term Loan, for each
Tranche C Term Lender, the commitment of such Lender to
make a portion of the Tranche C Term Loan hereunder;
provided that, at any time after funding of the
Tranche C Term Loan, determinations of “Required
Lenders” and “Required Tranche C Term
Lenders” shall be based on the outstanding principal amount
of the Tranche C Term Loan.



40







 



     
“Tranche C Term Loan Commitment
Percentage” means, for each Tranche C Term Lender,
a fraction (expressed as a percentage carried to the ninth
decimal place), the numerator of which is the principal amount
of such Lender’s Tranche C Term Loan, and the
denominator of which is the Outstanding Amount of the
Tranche C Term Loan. The initial Tranche C Term Loan
Commitment Percentages will be set forth in the Tranche C
Term Loan Joinder Agreement.



     
“Tranche C Term Loan Committed Amount”
means upon establishment of a Tranche C Term Loan under
Section 2.01(j), for each Tranche C Term
Lender, the amount of such Lender’s Tranche C Term
Loan Commitment. The initial Tranche C Term Loan Committed
Amounts will be set forth in the Tranche C Term Loan
Joinder Agreement.



     
“Tranche C Term Loan Joinder Agreement”
has the meaning provided in the Term Loan Credit Agreement.



     
“Tranche C Term Note” means the promissory
notes, if any, given to evidence the Tranche C Term Loan,
if any, as amended, restated, modified, supplemented, extended,
renewed or replaced.



     
“TRICARE” means the United States Department of
Defense health care program for service families (including
TRICARE Prime, TRICARE Extra and TRICARE Standard), and any
successor or predecessor (including CHAMPUS) thereof.



     
“Trust Preferred Indentures” means the
indentures pursuant to which the Trust Preferred Subdebt
was issued, as amended, restated, supplemented or otherwise
modified from time to time.



     
“Trust Preferred Securities” means those
trust preferred securities of members of the Consolidated Group
comprising $450,000,000 aggregate liquidation amount of
77/8%
Dollar-denominated trust preferred securities due 2008 issued by
Fresenius Medical Care Capital Trust II, DM 300,000,000
aggregate liquidation amount of
73/8%
Deutsche mark-denominated trust preferred securities due 2008
issued by Fresenius Medical Care Capital Trust III,
$225,000,000 aggregate liquidation amount of
77/8%
Dollar-denominated trust preferred securities due 2011 issued by
Fresenius Medical Care Capital Trust IV and
€300, 000,000
aggregate liquidation amount of
73/8
% Euro-denominated trust preferred securities due 2011
issued by Fresenius Medical Care Capital Trust V and, to
the extent permitted hereunder, additional trust preferred
securities after the Closing Date issued by members of the
Consolidated Group.



     
“Trust Preferred Subdebt” means (i)
$450,450,000 aggregate principal amount of
77/8%
Dollar-denominated senior subordinated notes due 2008 issued by
FMC Trust Finance S.à r.l. Luxembourg to Fresenius
Medical Care Capital Trust II, (ii) DM300,300,000
aggregate principal amount of
73/8%
Deutsche mark-denominated senior subordinated notes due 2008
issued by FMC Trust Finance S.à r.l. Luxembourg to
Fresenius Medical Care Capital Trust III and assumed by
FMCAG as of December 23, 2004, (iii) $225,225,000 aggregate
principal amount of
77/8%
Dollar-denominated senior subordinated notes due 2011 issued by
FMC Trust Finance S.à r.l. Luxembourg-III to Fresenius
Medical Care Capital Trust IV and (iv)
€300,300,000
aggregate principal amount of
73/8
% Euro-denominated senior subordinated notes due 2011
issued by FMC



41







 




Trust Finance S.à r.l. Luxembourg-III to Fresenius
Medical Care Capital Trust V and assumed by FMCAG as of
December 23, 2004, in each case in connection with a
related issuance of Trust Preferred Securities and, to the
extent permitted hereunder, and any additional Subordinated Debt
incurred in connection with a related issuance of additional
Trust Preferred Securities issued after the Closing Date by
members of the Consolidated Group.



     
“Type” means (i) with respect to a
Committed Revolving Loan or a Term Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan, and (ii) with
respect to a Competitive Revolving Loan, its character as an
Absolute Rate Loan or a Eurocurrency Margin Bid Loan.



     
“Unfunded Pension Liability” means the excess
of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of
that Pension Plan’s assets, determined in accordance with
the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Internal Revenue Code for the applicable
plan year.



     
“United States” and “U.S.”
mean the United States of America.



     
“Unreimbursed Amount” has the meaning set forth
in Section 2.08(c)(i).



     
“Wholly Owned” means, with respect to any
direct or indirect Subsidiary of any Person, that one hundred
percent (100%) of the Capital Stock with ordinary voting power
issued by such Subsidiary (other than directors’ qualifying
shares and investments by foreign nationals mandated by
applicable law) is beneficially owned, directly or indirectly,
by such Person; provided that any preferred stock of FMCH
outstanding as of the Closing Date shall be disregarded for
purposes of such determination.



     
“WRG-Conn” means W.R. Grace & Co.-Conn., a
Connecticut corporation.



     
SECTION 1.02 Interpretive Provisions. With reference
to this Credit Agreement and each other Credit Document, unless
otherwise provided herein or in such other Credit Document:






		
	 	     
    (a) The meanings of defined terms are equally applicable to
    the singular and plural forms of the defined terms.
	 
	 	     
    (b) (i) The words “herein,”
    “hereto,” “hereof” and “hereunder”
    and words of similar import when used in any Credit Document
    shall refer to such Credit Document as a whole and not to any
    particular provision thereof.






		
	 	     
    (ii) Unless otherwise provided or required by context,
    Article, Section, Exhibit and Schedule references are to the
    Credit Document in which such reference appears.
	 
	 	     
    (iii) The term “including” is by way of
    example and not limitation.



42







 






		
	 	     
    (iv) The term “documents” includes any and
    all instruments, documents, agreements, certificates, notices,
    reports, financial statements and other writings, however
    evidenced, whether in physical or electronic form.






		
	 	     
    (c) In the computation of periods of time from a specified
    date to a later specified date, the word “from” means
    “from and including”; the words “to” and
    “until” each mean “to but excluding”; and
    the word “through” means “to and including.”
	 
	 	     
    (d) Section headings herein and in the other Credit
    Documents are included for convenience of reference only and
    shall not affect the interpretation of this Credit Agreement or
    any other Credit Document.



     
SECTION 1.03 Accounting Terms.



     
(a) All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Credit
Agreement shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the audited
financial statements for the fiscal year ended December 31,
2004, except as otherwise specifically prescribed herein.



     
(b) Notwithstanding any provision herein to the contrary,
determinations of (i) the applicable pricing level under
the definition of “Applicable Percentage” and
(ii) compliance with the financial covenants shall be made
on a Pro Forma Basis.



     
(c) With each annual and quarterly Compliance Certificate
delivered in accordance with Section 7.02(b), FMCAG
will provide a written summary of material changes in GAAP or in
the consistent application of GAAP to the extent that either
affects the numeric value of any financial ratio or requirement
herein or in any other Credit Document. If at any time any
change in GAAP or any change in the application thereof would
affect the computation of any financial ratio or requirement set
forth in any Credit Document, and (i) FMCAG shall object to
determining such compliance based on GAAP or the application
thereof then in effect, or (ii) the Administrative Agent or
the Required Lenders shall so object in writing within thirty
days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most
recent financial statements delivered hereunder as to which no
such objection shall have been made.



     
SECTION 1.04 Rounding. Any financial ratios required
to be maintained by the Borrowers pursuant to this Credit
Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one
place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest
number).



     
SECTION 1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references
to Organization Documents, agreements (including the Credit
Documents) and other contractual instruments shall be deemed to
include all subsequent



43







 




amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Credit Document; and
(b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.



     
SECTION 1.06 Times of Day. Unless otherwise
provided, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     
SECTION 1.07 Exchange Rates; Currency Equivalents.



     
(a) The Administrative Agent shall determine the Spot Rates
as of each Revaluation Date to be used for calculating Dollar
Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Foreign Currencies; provided that
(i) the Foreign Swing Line Lender may make such
determinations with respect to the Foreign Swing Line Loans,
(ii) if a Lender is acting as Competitive Bid Agent, such
Competitive Bid Agent may make such determinations with respect
to Competitive Bid Loans and (iii) in any event, the
Foreign Swing Line Lender and the Competitive Bid Agent (whether
a Lender or FMCH) may rely on the most recent Spot Rate
determined by the Administrative Agent. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.



     
(b) Wherever in this Credit Agreement in connection with a
Borrowing, conversion, continuation or prepayment of a Loan or
the issuance of a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in Dollars,
but such Borrowing, Loan or Letter of Credit is denominated in a
Foreign Currency, such amount shall be the relevant Foreign
Currency Equivalent of such Dollar amount (rounded to the
nearest 1,000 units of such Foreign Currency), as determined by
the Administrative Agent; provided that (i) the
Foreign Swing Line Lender may make such determinations with
respect to the Foreign Swing Line Loans and (ii) if a
Lender is acting as Competitive Bid Agent, such Competitive Bid
Agent may make such determinations with respect to Competitive
Bid Loans.



     
(c) Determinations by the Administrative Agent (and
determinations by the Foreign Swing Line Lender and
determinations by any Lender acting as Competitive Bid Agent, as
applicable) pursuant to this Section 1.07 shall be
conclusive absent manifest error.



     
SECTION 1.08 Additional Foreign Currencies. The
Borrowers may from time to time request that Credit Extensions
be made in a currency other than those specifically listed in
the definition of “Available Foreign Currency”;
provided that such requested currency otherwise meets the
requirements set forth in such definition. Any such request
shall be made to the Administrative Agent (which shall promptly
notify each applicable Lender thereof) not later than 12:00 noon
ten Business Days prior to the date of the desired Credit
Extension. Each such Lender shall notify the Administrative
Agent, not later than 12:00 noon seven Business Days after
receipt of such request whether it consents, in its sole
discretion, to making Loans in such requested currency. Any
failure by a Lender to respond to such request within the time
period specified in the preceding sentence shall be deemed to be
a refusal by such Lender to make



44







 




Loans in such requested currency. If all the applicable Lenders
consent to making Loans in such requested currency, the
Administrative Agent shall so notify FMCH and such currency
shall thereupon be deemed for all purposes to be an Available
Foreign Currency hereunder. Upon any applicable Lender’s
refusal to make Loans in the additional requested currency, the
Borrowers may replace such Lender in accordance with
Section 11.16.



     
SECTION 1.09 Redenomination of Certain Foreign
Currencies.



     
(a) Unless otherwise prohibited by Law, if more than one
currency unit are at the same time recognized by the central
bank of any country as the lawful currency of that country, then:






		
	 	     
    (i) any reference in the Credit Documents to, and any
    Obligations in, the currency of that country shall be translated
    into, or paid in, the currency or currency unit of that country
    designated by the Administrative Agent (after consultation with
    FMCAG), and
	 
	 	     
    (ii) any translation from one currency or currency unit to
    another shall be at the official rate of exchange recognized by
    the central bank for the conversion of that currency or currency
    unit into the other.



     
(b) If a change in any currency of a country occurs, this
Credit Agreement will, to the extent the Administrative Agent
(acting reasonably and after consultation with FMCAG) specifies
to be necessary, be deemed amended to comply with any generally
accepted conventions and market practice (including the basis of
accrual of interest) in the relevant interbank market and
otherwise to reflect such change in currency.



     
SECTION 1.10 Letter of Credit Amounts. Unless
otherwise specified herein, the amount of a Letter of Credit at
any time shall be deemed to be the Dollar Equivalent of the
stated amount of such Letter of Credit in effect at such time;
provided that with respect to any Letter of Credit that,
by its terms or the terms of any Letter of Credit Applications
related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the Dollar Equivalent of the maximum
stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum amount is in
effect at such time (giving effect to any permanent reductions
that may have been made).




ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS



     
SECTION 2.01 Commitments. Subject to the terms and
conditions set forth herein:



     
(a) Revolving Commitment. During the Commitment
Period, each Revolving Lender severally agrees to make revolving
credit loans (the “Committed Revolving Loans”)
in Dollars and in Available Foreign Currencies on any Business
Day to the



45







 




requesting Borrower or Borrowers; provided that
(i) with respect to each Borrower, the aggregate principal
amount of Revolving Obligations owing by such Borrower shall not
exceed its Designated Borrowing Limit, (ii) with respect to
the Revolving Lenders collectively, (A) the aggregate
principal amount of Revolving Obligations shall not exceed ONE
BILLION DOLLARS ($1,000,000,000) (as such amount may be
increased or decreased in accordance with the provisions hereof,
the “Aggregate Revolving Committed Amount”) and
(B) the aggregate principal amount of Revolving Obligations
in Foreign Currencies shall not exceed THREE HUNDRED MILLION
DOLLARS ($300,000,000) (as such amount may be decreased in
accordance with the provisions hereof, the “Aggregate
Foreign Revolving Committed Amount”), and
(iii) with respect to each Revolving Lender individually,
such Revolving Lender’s Revolving Commitment Percentage of
Committed Revolving Obligations shall not exceed its respective
Revolving Committed Amount. Committed Revolving Loans may be
comprised of Base Rate Loans, Eurocurrency Rate Loans, or a
combination thereof, as the respective Borrower may request and
may be repaid and reborrowed in accordance with the provisions
hereof.



     
(b) L/ C Commitment. During the Commitment Period:






		
	 	     
    (i) the L/ C Issuer, in reliance upon the agreements from
    the Revolving Lenders set forth herein, agrees (A) to issue
    Letters of Credit in Dollars and in Available Foreign Currencies
    on any Business Day for the account of any Borrower or
    Borrowers, for such Borrower’s own use or for the use of
    its Subsidiaries, and to amend or renew Letters of Credit
    previously issued hereunder, in accordance with the provisions
    hereof, and (B) to honor drafts under Letters of Credit, and
	 
	 	     
    (ii) the Revolving Lenders severally agree to participate
    in the Letters of Credit issued or existing hereunder;




provided that (i) the aggregate principal amount of
L/ C Obligations shall not exceed TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000) (as such amount may be decreased in
accordance with the provisions hereof, the “L/ C
Committed Amount”), (ii) with respect to each
Borrower, the aggregate principal amount of Revolving
Obligations owing by such Borrower shall not exceed its
Designated Borrowing Limit, (iii) with respect to the
Revolving Lenders collectively, (A) the aggregate principal
amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount and (B) the aggregate principal
amount of Revolving Obligations in Foreign Currencies shall not
exceed the Aggregate Foreign Revolving Committed Amount, and
(iv) with respect to each Revolving Lender individually,
such Revolving Lender’s Revolving Commitment Percentage of
Committed Revolving Obligations shall not exceed its respective
Revolving Committed Amount. Subject to the terms and conditions
hereof, the Borrowers’ ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrowers may
obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. Existing
Letters of Credit



46







 




shall be deemed to have been issued hereunder and shall be
subject to and governed by the terms and conditions hereof.



     
(c) Domestic Swing Line Commitment. During the
Commitment Period, each of the Domestic Swing Line Lenders
agrees to make revolving credit loans (the “Domestic
Swing Line Loans”) in Dollars on any Business Day to
any Borrower or Borrowers; provided that (i) the
aggregate principal amount of Domestic Swing Line Loans shall
not exceed ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (as
such amount may be decreased in accordance with the provisions
hereof, the “Domestic Swing Line Committed
Amount”), (ii) with respect to each Borrower, the
aggregate principal amount of Revolving Obligations owing by
such Borrower shall not exceed its Designated Borrowing Limit,
and (iii) with respect to the Revolving Lenders
collectively, the aggregate principal amount of Revolving
Obligations shall not exceed the Aggregate Revolving Committed
Amount. Domestic Swing Line Loans shall be comprised solely of
Base Rate Loans, and may be repaid and reborrowed in accordance
with the provisions hereof. Immediately upon making a Domestic
Swing Line Loan, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
the applicable Domestic Swing Line Lender a risk participation
in such Domestic Swing Line Loan in an amount equal to the
product of such Revolving Lender’s Revolving Commitment
Percentage of such Domestic Swing Line Loan.



     
(d) Foreign Swing Line Commitment. During the
Commitment Period, the Foreign Swing Line Lender agrees to make
available to the Borrowers on any Business Day revolving credit
loans, letters of credit or bank guaranties or other financial
accommodations by mutual agreement (collectively, the
“Foreign Swing Line Loans”), which may consist
of:






		
	 	     
    (i) revolving loans and letters of credit in Available
    Foreign Currencies and Designated Alternative Foreign Currencies
    on a participated basis with the Revolving Lenders as provided
    herein (collectively, the “Shared Foreign Swing Line
    Loans”), and
	 
	 	     
    (ii) bank guaranties and other forms of financial
    accommodation in Available Foreign Currencies, and revolving
    loans, letters of credit, bank guaranties and other forms of
    financial accommodation (in such form as may be agreed by the
    applicable Borrower and the Foreign Swing Line Lender) in
    Alternative Foreign Currencies, in each case in such form and in
    such currencies as may be mutually agreed, for the sole account
    of the Foreign Swing Line Lender on a non-participated basis
    (collectively, the “Non-Shared Foreign Swing Line
    Loans”);




provided that (i) the aggregate principal amount of
Foreign Swing Line Loans shall not exceed FIFTY MILLION DOLLARS
($50,000,000) (as such amount may be decreased in accordance
with the provisions hereof, the “Foreign Swing Line
Committed Amount”), (ii) the aggregate principal
amount of Foreign Swing Line Loans denominated in Canadian
dollars shall not exceed TWENTY MILLION DOLLARS (USD$20,000,000),



47







 




(iii) the aggregate principal amount of Foreign Swing Line
Loans denominated in Mexican pesos shall not exceed FIFTEEN
MILLION DOLLARS ($15,000,000), (iv) the aggregate principal
amount of Non-Shared Foreign Swing Line Loans shall not exceed
TWENTY MILLION DOLLARS ($20,000,000) (as such amount may be
decreased in accordance with the provisions hereof, the
“Non-Shared Foreign Swing Line Maximum
Amount”), (v) with respect to each Primary
Borrower, the aggregate principal amount of Revolving
Obligations owing by such Primary Borrower shall not exceed its
Designated Borrowing Limit, and (vi) with respect to the
Revolving Lenders collectively, (A) the aggregate principal
amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount and (B) the aggregate principal
amount of Revolving Obligations in Foreign Currencies shall not
exceed the Aggregate Foreign Revolving Committed Amount. Foreign
Swing Line Loans shall be comprised solely of Eurocurrency Rate
Loans, and may be repaid and reborrowed in accordance with the
provisions hereof. Immediately upon making a Shared Foreign
Swing Line Loan, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
the Foreign Swing Line Lender a risk participation in such
Shared Foreign Swing Line Loan in an amount equal to the product
of such Revolving Lender’s Revolving Commitment Percentage
of such Shared Foreign Swing Line Loan; provided that,
notwithstanding anything contained herein to the contrary, the
funding and payment of risk participation interests in Shared
Foreign Swing Line Loans that are denominated in Designated
Alternative Foreign Currencies may be made in Dollars based on
the Dollar Equivalent thereof. The Revolving Lenders shall have
no interest in nor any obligation with respect to the Non-Shared
Foreign Swing Line Loans which shall be issued by the Foreign
Swing Line Lender strictly for its own account.



     
(e) Competitive Revolving Loans. During the
Commitment Period, any Borrower or Borrowers may request the
Revolving Lenders to submit offers to make loans, issue letters
of credit or bank guaranties, or make other financial
accommodations (collectively, the “Competitive Revolving
Loans”) in Dollars, Available Foreign Currencies or
Alternative Foreign Currencies; provided that (i) the
aggregate principal amount of Competitive Revolving Loans shall
not exceed TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (as
such amount may be decreased in accordance with the provisions
hereof, the “Competitive Revolving Loan Maximum
Amount”), (ii) with respect to each Borrower, the
aggregate principal amount of Revolving Obligations owing by
such Borrower shall not exceed its Designated Borrowing Limit,
and (iii) with respect to the Revolving Lenders
collectively, (A) the aggregate principal amount of
Revolving Obligations shall not exceed the Aggregate Revolving
Committed Amount and (B) the aggregate principal amount of
Revolving Obligations in Foreign Currencies shall not exceed the
Aggregate Foreign Revolving Committed Amount. Competitive
Revolving Loans may be comprised of Eurocurrency Margin Bid
Loans and Absolute Rate Loans, or a combination thereof, as the
applicable Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof. There shall
not be more than twenty separate Competitive Revolving Loans
outstanding at any time.



     
(f) Incremental Loan Facilities. Any time after the
Closing Date, any Borrower or Borrowers may, upon written notice
to the Administrative Agent, establish



48







 




additional credit facilities (collectively, the
“Incremental Loan Facilities”) by increasing
the Aggregate Revolving Commitments hereunder as provided in
Section 2.01(g) (the “Incremental Revolving
Loans”), increasing the Tranche A Term Loan as
provided in Section 2.01(h) (the
“Incremental Tranche A Term Loan”),
increasing the Tranche B Term Loan as provided in
Section 2.01(i) (the “Incremental Tranche B
Term Loan”) or establishment of a new term loan (the
“Tranche C Term Loan”) or other
incremental term loan as provided in Section 2.01(j), or
some combination thereof; provided that:






		
	 	     
    (i) the aggregate principal amount of loans and commitments
    for all the Incremental Loan Facilities established after the
    Closing Date will not exceed $500 million or the Dollar
    Equivalent thereof on the date on which the amount of each such
    facility is fixed;
	 
	 	     
    (ii) no Default or Event of Default shall have occurred and
    be continuing or shall result after giving effect to any such
    Incremental Loan Facility;
	 
	 	     
    (iii) the making of any Loans under the Incremental Loan
    Facilities shall be subject to the satisfaction of the
    conditions to the making of a Credit Extension under
    Section 5.02;
	 
	 	     
    (iv) the requesting Borrower or Borrowers will provide
    (A) a compliance certificate from a Responsible Officer
    confirming that no Default or Event of Default shall exist
    immediately after giving effect to the establishment and funding
    of the Incremental Loan Facilities and demonstrating compliance
    with the financial covenants hereunder after giving effect to
    the Incremental Loan Facilities (assuming that the Revolving
    Loans and the Incremental Loan Facilities are fully drawn and
    funded), (B) confirmation that the Incremental Loan
    Facilities constitute “Senior Indebtedness” in respect
    of the Trust Preferred Subdebt and (C) supporting
    resolutions, legal opinions, promissory notes and other items as
    may be reasonably required by the Administrative Agent and the
    Lenders providing commitments for the Incremental Loan
    Facilities; and
	 
	 	     
    (v) to the extent reasonably necessary in the judgment of
    the Administrative Agent, amendments to each foreign Pledge
    Agreement and the Parallel Debt Agreement and/or delivery of any
    substantially similar agreement that creates an obligation of
    the Credit Parties (as debt acknowledgment or abstraktes
    Schuldanerkenntnis), in each case in a manner satisfactory
    to the Administrative Agent;




In connection with the establishment of any Incremental Loan
Facility, (A) none of the Lenders, including Bank of
America and DBSI, shall have any obligation to provide
commitments or loans for any Incremental Loan Facility without
their prior written approval and (B) Schedule 2.01 hereto
and Schedule 2.01 to the Term Loan Credit Agreement will be
revised to reflect the Lenders, Loans, Commitments, committed



49







 




amounts and Commitment Percentages after giving effect to the
establishment of any Incremental Loan Facility.



     
(g) Establishment of Incremental Revolving Loans.
Subject to Section 2.01(f), any Borrower or
Borrowers may establish Incremental Revolving Loans by
increasing the Aggregate Revolving Committed Amount,
provided that:






		
	 	     
    (i) any new lender providing commitments for the
    Incremental Revolving Loans must be reasonably acceptable to the
    Administrative Agent;
	 
	 	     
    (ii) lenders providing commitments for the Incremental
    Revolving Loans pursuant to this Section 2.01(g)
    will provide a Revolving Loan Joinder Agreement or other
    agreement reasonably acceptable to the Administrative Agent; and
	 
	 	     
    (iii) if any Revolving Loans are outstanding at the time of
    any such increase, the Borrower will make such payments and
    adjustments on the Revolving Loans (including payment of any
    break-funding amounts owing under Section 3.05) as
    may be necessary to give effect to the revised commitment
    amounts and percentages, it being agreed that the Administrative
    Agent shall, in consultation with the Borrowers, manage the
    allocation of the revised Commitment Percentages to the existing
    Eurocurrency Rate Loans in such a manner as to minimize the
    amounts so payable by the Borrowers.




Any Incremental Revolving Loan established hereunder shall have
terms identical to the Revolving Loans existing on the Closing
Date, except for fees payable to Lenders providing commitments
for the Incremental Revolving Loan.



     
(h) Establishment of Incremental Tranche A Term
Loan. Subject to Section 2.01(f), the Borrowers
under the Tranche A Term Loan may, at any time prior to the
first amortization payment date on the Tranche A Term Loan,
increase the size of the Tranche A Term Loan by
establishing additional Tranche A Term Loan Commitments,
provided that:






		
	 	     
    (i) any new lender providing commitments for the
    Incremental Tranche A Term Loan must be reasonably
    acceptable to the Administrative Agent under the Term Loan
    Credit Agreement;
	 
	 	     
    (ii) lenders providing commitments for the Incremental
    Tranche A Term Loan pursuant to this Section 2.01(h)
    will provide an Incremental Tranche A Term Loan Joinder
    Agreement or other agreement reasonably acceptable to the
    Administrative Agent under the Term Loan Credit Agreement; and
	 
	 	     
    (iii) the Borrowers will make such payments and adjustments
    on the Tranche A Term Loan (including payment of any
    break-funding amounts owing under Section 3.05) as
    may be necessary to give effect to the revised commitment



50







 






		
	 	
    amounts and percentages, it being agreed that the Administrative
    Agent shall, in consultation with the Borrowers, manage the
    allocation of the revised Commitment Percentages to the existing
    Eurocurrency Rate Loans in such a manner as to minimize the
    amounts so payable by the Borrowers.




Any Incremental Tranche A Term Loan shall have terms
identical to the Tranche A Term Loan existing on the
Closing Date, except for fees payable to Lenders providing
commitments for the Incremental Tranche A Term Loan.



     
(i) Establishment of the Incremental Tranche B Term
Loan. Subject to Section 2.01(f), the Borrowers
under the Tranche B Term Loan may, at any time prior to the
first amortization payment date on the Tranche B Term Loan,
increase the size of the Tranche B Term Loan by
establishing additional Tranche B Term Loan Commitments,
provided that:






		
	 	     
    (i) any new lender providing commitments for the
    Incremental Tranche B Term Loan must be reasonably
    acceptable to the Administrative Agent under the Term Loan
    Credit Agreement;
	 
	 	     
    (ii) lenders providing commitments for the Incremental
    Tranche B Term Loan pursuant to this Section 2.01(i)
    will provide an Incremental Tranche B Term Loan Joinder
    Agreement or other agreement reasonably acceptable to the
    Administrative Agent under the Term Loan Credit Agreement;
	 
	 	     
    (iii) the Borrowers will make such payments and adjustments
    on the Tranche B Term Loan (including payment of any
    break-funding amounts owing under Section 3.05) as
    may be necessary to give effect to the revised commitment
    amounts and percentages, it being agreed that the Administrative
    Agent shall, in consultation with the Borrowers, manage the
    allocation of the revised Commitment Percentages to the existing
    Eurocurrency Rate Loans in such a manner as to minimize the
    amounts so payable by the Borrowers.




Any Incremental Tranche B Term Loan shall have terms
identical to the Tranche B Term Loan existing on the
Closing Date, except for fees payable to Lenders providing
commitments for the Incremental Tranche B Term Loan.



     
(j) Establishment of the Tranche C Term Loan.
Subject to Section 2.01(f), the Borrowers may, at
any time after the Closing Date, establish a Tranche C Term
Loan or other term loan facility under the Term Loan Credit
Agreement, provided that:






		
	 	     
    (i) lenders providing commitments for the Tranche C
    Term Loan or such other term loan must be reasonably acceptable
    to the Administrative Agent under the Term Loan Credit Agreement;
	 
	 	     
    (ii) lenders providing commitments for the Tranche C
    Term Loan or such other term loan pursuant to this
    Section 2.01(j) will provide a Tranche C



51







 






		
	 	
    Term Loan Joinder Agreement or other agreement reasonably
    acceptable to the Administrative Agent under the Term Loan
    Credit Agreement;






		
	 	     
    (iii) the Tranche C Term Loan or such other term loan
    will have a final maturity date that is co-terminous with or
    later than the final maturity date for the Tranche B Term
    Loan and an average-life-to-maturity from the date of issuance
    of the Tranche C Term Loan or such other loan that is not
    earlier than the average-life-to-maturity of the Tranche B
    Term Loan from such date; and
	 
	 	     
    (iv) the Applicable Percentage for the Tranche C Term
    Loan will be not more than * basis points (*%) more than the
    Applicable Percentage for the Tranche B Term Loan.



     
For purposes of this Section only, Applicable Percentage for the
Tranche C Term Loan shall be deemed to include all upfront
or similar fees or original issue discount (amortized over the
life of such term loan) payable to all the Lenders of such term
loans, but exclusive of any arrangement, structuring or other
fees payable in connection therewith that are not shared with
all the Lenders of such term loans.



     
SECTION 2.02 Borrowings, Conversions and
Continuations of Loans.



     
(a) Each Borrowing, each conversion of Loans from one Type
to the other, and each continuation of Eurocurrency Rate Loans
shall be made upon the applicable Borrower’s irrevocable
notice to the Administrative Agent, which may be given by
telephone. Each such notice (except as otherwise set forth in
Section 2.10 with respect to Foreign Swing Line
Loans) must be received by the Administrative Agent not later
than 11:30 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars,
(ii) four Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Available Foreign Currencies (other than
Japanese yen), (iii) five Business Days prior to the
requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Japanese
yen and (iv) on the Business Day prior to the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice
by the Borrowers pursuant to this Section 2.02 must
be confirmed promptly by delivery to the Administrative Agent of
a written Loan Notice, appropriately completed and signed by a
Responsible Officer or duly authorized signatory of the
applicable Borrower. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal
amount of $5 million or a whole multiple of $1 million
in excess thereof. Except as provided in
Sections 2.08(c), 2.09(b) and 2.10(b),
each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (A) whether such Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or
a continuation of Eurocurrency Rate Loans, (B) the
requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (C) the
principal amount of Loans to be borrowed, converted or
continued, (D) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (E) if applicable,
the requested duration of the Interest Period with respect
thereto. If such Borrower fails to specify a




 







		
	* 	
    Confidential treatment has been requested as to the omitted
    portions of this document in accordance with the applicable
    rules of the Securities and Exchange Commission.



52






 




Type of Loan in a Loan Notice or if such Borrower fails to give
a timely notice requesting a conversion or continuation, then
the applicable Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurocurrency Rate
Loans. If such Borrower requests a Borrowing of, conversion to,
or continuation of Eurocurrency Rate Loans in any such Loan
Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.



     
(b) Following receipt of a Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its
Commitment Percentage of the applicable Loans, and if no timely
notice of a conversion or continuation is provided by the
Borrowers, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a
Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice;
provided that, in the case of Borrowings in Swiss francs
and Japanese yen, unless and until the Administrative Agent
shall otherwise direct, the Lender may provide funds in the then
applicable Dollar Equivalent (including an exchange fee and
other normal and customary fees for providing this service as
determined by the Administrative Agent in its sole discretion)
thereof in lieu of Swiss francs and Japanese yen, so long as the
Lender has given reasonable notice to the Administrative Agent
of its desire and intent to so provide funds therefor promptly
after (but in any event within one hour of) its receipt of any
such notice for a Borrowing in Swiss francs or Japanese yen.
Upon satisfaction of the applicable conditions set forth in
Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative
Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of
such Borrower or Borrowers on the books of the Administrative
Agent with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative
Agent by such Borrower or Borrowers; provided, however,
that if, on the date of such Borrowing, there are Swing Line
Loans or L/ C Borrowings outstanding, then the proceeds of such
Borrowing shall be applied, first, to the payment in full
of any such L/ C Borrowings, second, to the payment in
full of any such Swing Line Loan, and third, to such Borrower as
provided above; provided, further, in the case of
Borrowings in Swiss francs or Japanese yen for which any Lender
has provided funds in Dollars, the Administrative Agent shall
provide such funds to the applicable Borrower in Swiss francs or
Japanese yen, as applicable.



     
(c) Except as otherwise provided herein, without the
consent of the Required Lenders, (i) a Eurocurrency Rate
Loan may be continued or converted only on the last day of an
Interest Period for such Eurocurrency Rate Loan and
(ii) any conversion into, or continuation as, a
Eurocurrency Rate Loan may be made only if the conditions to
Credit Extensions in Section 5.02 have been
satisfied. During the existence of a Default or Event of
Default, (i) no Loan may be requested as, converted to or
continued as a Eurocurrency Rate Loan and (ii) at the
request of the Required Lenders, any outstanding Eurocurrency
Rate Loan shall be converted immediately to a Base Rate Loan.



53







 



     
(d) The Administrative Agent shall promptly notify the
applicable Borrower or Borrowers (with a copy to FMCAG and FMCH)
and the Lenders of the interest rate applicable to any Interest
Period for Eurocurrency Rate Loans upon determination of such
interest rate. The determination of the Eurocurrency Rate by the
Administrative Agent shall be conclusive in the absence of
manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify FMCH and the
Lenders of any change in Bank of America’s prime rate used
in determining the Base Rate promptly following the public
announcement of such change.



     
(e) After giving effect to all Borrowings, all conversions
of Loans from one Type to the other, and all continuations of
Loans as the same Type, there shall not be more than twenty
Interest Periods in effect with respect to all Committed
Revolving Loans hereunder; provided in each case that,
for purposes hereof, Interest Periods with respect to Loans
(whether or not of the same Type) with separate or different
Interest Periods will be considered as separate Interest
Periods, even if such Interest Periods end on the same date.



     
SECTION 2.03 Interest.



     
(a) Subject to the provisions of subsection (b)
below, (i) each Eurocurrency Rate Committed Loan shall bear
interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of the
Eurocurrency Rate plus the Applicable Percentage,
(ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the sum of the Base
Rate plus the Applicable Percentage, (iii) each
Domestic Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a
per annum rate equal to the sum of the Base Rate plus the
Applicable Percentage, (iv) each Foreign Swing Line Loan
shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a per annum rate equal to
the sum of the Eurocurrency Rate plus the Applicable
Percentage, and (v) each Competitive Revolving Loan shall
bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the sum of the
Eurocurrency Rate plus (or minus) the Eurocurrency
Bid Margin, or at the Absolute Rate, as the case may be.



     
(b) If any amount payable by the Borrowers under any Credit
Document is not paid when due (without regard to any applicable
grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders, while any
Event of Default exists, the Borrowers shall pay interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon
demand.



     
(c) Interest on each Loan shall be due and payable in
arrears on each Interest Payment Date applicable thereto and at
such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof
before and after



54







 




judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.



     
SECTION 2.04 Fees.



     
(a) Commitment Fee. The Borrowers shall pay to the
Administrative Agent for the account of each Revolving
Commitment Lender in accordance with its Revolving Commitment
Percentage, a commitment fee equal to the Applicable Percentage
of the actual daily amount by which the Aggregate Revolving
Committed Amount exceeds the sum of (i) the Outstanding
Amount of Committed Revolving Loans and (ii) the
Outstanding Amount of L/ C Obligations. The commitment fee shall
accrue at all times during the Commitment Period, including at
any time during which one or more of the conditions in
Article V is not met, and shall be due and payable
quarterly in arrears on each April 15, July 15,
October 15 and January 15 for the immediately preceding quarter
ending prior to each such date, commencing with the first such
date to occur after the Closing Date, and on the Termination
Date. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Percentage
during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Percentage separately for each
period during such quarter that such Applicable Percentage was
in effect. For purposes hereof, (i) Swing Line Loans and
Competitive Bid Loans shall not be counted toward or be
considered as usage of the Aggregate Revolving Committed Amount
and (ii) L/ C Obligations shall be counted toward and
considered as usage of the Aggregate Revolving Committed Amount.



     
(b) Letter of Credit Fees. The Borrowers shall pay
to the Administrative Agent for the account of each Lender in
accordance with its Revolving Commitment Percentage a Letter of
Credit fee for each Letter of Credit equal to the Applicable
Percentage of the daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount
is then in effect under such Letter of Credit). Such fees shall
be due and payable quarterly in arrears on each April 15,
July 15, October 15 and January 15 for the immediately
preceding quarter ending prior to such date, commencing with the
first such date to occur after the issuance of such Letter of
Credit. Such fees shall be calculated quarterly in arrears, and
if there is any change in the Applicable Percentage during any
quarter, the actual daily amount of each Letter of Credit shall
be computed and multiplied by the Applicable Percentage for
Letters of Credit separately for each period during such quarter
that such Applicable Percentage was in effect.



     
(c) Fronting Fee and Documentary and Processing Charges
Payable to L/ C Issuer. The Borrowers shall pay directly to
the L/ C Issuer for its own account a fronting fee with respect
to each Letter of Credit in the amounts and at the times
separately agreed upon in writing; provided, that the
fronting fee for each Letter of Credit shall be no more than
fifteen basis points (0.15%) of the face amount thereof. In
addition, the Borrowers shall pay directly to the L/ C Issuer
for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs
and charges, of the L/ C Issuer relating to letters of credit as
from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are
nonrefundable.



     
(d) Other Fees.



55







 






		
	 	     
    (i) The Borrowers shall pay to the Arrangers, the
    Co-Documentation Agents and the Administrative Agent, for their
    own respective accounts, fees in the amounts and at the times
    specified in the Fee Letter. Such fees shall be fully earned
    when paid and shall not be refundable for any reason whatsoever.
	 
	 	     
    (ii) The Borrowers shall pay to the Competitive Bid Agent,
    for its own account, such fees as shall have been separately
    agreed upon in writing in the amounts and at the times so
    specified. Such fees shall be fully earned when paid and shall
    not be refundable for any reason whatsoever.
	 
	 	     
    (iii) The Borrowers shall pay to the Lenders, for their own
    respective accounts, such fees as shall have been separately
    agreed upon in writing in the amounts and at the times so
    specified. Such fees shall be fully earned when paid and shall
    not be refundable for any reason whatsoever.



     
SECTION 2.05 Repayment of Loans.



     
(a) Revolving Loans. The Borrowers shall repay to
the Lenders on the Termination Date the aggregate principal
amount of Revolving Loans outstanding on such date.



     
(b) Swing Line Loans. The Borrowers shall repay each
Swing Line Loan on the earliest to occur of (i) the date of
demand for repayment by the Swing Line Lender, (ii) the
date of any payment under Section 2.02(b),
(iii) the date which is fourteen Business Days following
the advance of such Swing Line Loan and (iv) the
Termination Date.



     
(c) Competitive Revolving Loans. The Borrowers shall
repay each Competitive Revolving Loan on the earlier of
(i) the maturity date thereof or the last day of the
Interest Period therefor, and (ii) the Termination Date.



     
SECTION 2.06 Prepayments.



     
(a) Voluntary Prepayments. The Loans may be repaid
in whole or in part without premium or penalty (except, in the
case of Loans other than Base Rate Loans, amounts payable
pursuant to Section 3.05); provided that:






		
	 	     
    (i) in the case of Loans other than Swing Line Loans,
    (A) notice thereof must be received by 12:00 noon by the
    Administrative Agent at least (1) three Business Days prior
    to the date of prepayment of Eurocurrency Rate Loans denominated
    in Dollars, (2) four Business Days prior to the date of
    prepayment of Eurocurrency Rate Loans denominated in Available
    Foreign Currencies (other than Japanese yen), (3) five
    Business Days prior to the date of prepayment of Eurocurrency
    Rate Loans denominated in Japanese yen and (4) on the
    Business Day prior to the date of prepayment of Base Rate Loans,
    (B) any such prepayment shall be in a minimum principal
    amount of $5 million and integral multiples of
    $1 million in excess thereof, in the case of Eurocurrency
    Rate Loans, and a minimum principal amount of $500,000 and
    integral multiples of $100,000



56







 






		
	 	
    in excess thereof, in the case of Base Rate Loans, or, in each
    case, the entire principal amount thereof, if less;






		
	 	     
    (ii) (A) in the case of Domestic Swing Line Loans,
    (1) notice thereof must be received by 2:00 p.m. by the
    applicable Domestic Swing Line Lender on the date of prepayment
    (with a copy to the Administrative Agent) and (2) any such
    prepayments shall be in the same minimum principal amount as for
    advances thereof (or any lesser amount as may be acceptable to
    the applicable Domestic Swing Line Lender), and (B) in the
    case of Foreign Swing Line Loans, notice thereof must be
    received by 2:00 p.m. by the Foreign Swing Line Lender on the
    Business Day prior to the date of prepayment (with a copy to the
    Administrative Agent) and (2) any such prepayments shall be
    in the same minimum principal amount as for advances thereof (or
    any lesser amount as may be acceptable to the Foreign Swing Line
    Lender); and
	 
	 	     
    (iii) any voluntary prepayments on the Loans shall be
    applied as set forth in Section 2.06(c)(i).



     
Each such notice of voluntary repayment hereunder shall be
irrevocable and shall specify the date and amount of prepayment
and the Loans and Types of Loans which are to be prepaid. The
Administrative Agent will give prompt notice to the applicable
Lenders of any prepayment on the Loans and the Lender’s
interest therein. Prepayments of Eurocurrency Rate Loans
hereunder shall be accompanied by accrued interest thereon and
breakage amounts, if any, under Section 3.05.



     
(b) Mandatory Prepayments.






		
	 	     
    (i) Revolving Commitments. If at any time
    (A) the aggregate principal amount of Revolving Obligations
    shall exceed the Aggregate Revolving Committed Amount,
    (B) the aggregate principal amount of Revolving Obligations
    owing by any Borrower shall exceed its respective Designated
    Borrowing Limit, (C) the aggregate principal amount of
    Revolving Obligations in Foreign Currencies shall exceed the
    Aggregate Foreign Revolving Committed Amount, (D) the
    aggregate principal amount of L/ C Obligations shall exceed the
    L/ C Committed Amount, (E) the aggregate principal amount
    of Domestic Swing Line Loans shall exceed the Domestic Swing
    Line Committed Amount, (F) the aggregate principal amount
    of Foreign Swing Line Loans shall exceed the Foreign Swing Line
    Committed Amount, (G) the aggregate principal amount of
    Non-Shared Foreign Swing Line Loans shall exceed the Non-Shared
    Foreign Swing Line Maximum Amount, or (H) the aggregate
    principal amount of Competitive Revolving Loans shall exceed the
    Competitive Revolving Loan Maximum Amount, immediate prepayment
    will be made on the Revolving Loans and/or to Cash Collateralize
    the L/ C Obligations in an amount equal to such excess;
    provided, however, that except as relates to clause
    (D) above, L/ C Obligations will not be Cash Collateralized
    hereunder until the Revolving Loans and Swing Line Loans have
    been paid in full.
	 
	 	     
    (ii) Dispositions. Prepayment will be made on the
    Loan Obligations on the Business Day following receipt of any
    Net Cash Proceeds required to be prepaid pursuant



57







 






		
	 	
    to the terms of clauses (A) and (B) hereof in an
    amount equal to one hundred percent (100%) of the Net Cash
    Proceeds received from any Disposition by any member of the
    Consolidated Group (other than in connection with a Disposition
    permitted by Section 8.05(a) or (g), a
    Securitization Transaction permitted by
    Section 8.01(f), or Sale and Leaseback Transaction
    permitted by Section 8.05(d) or any Disposition to
    another member of the Consolidated Group permitted by
    subsections (e) or (f) of
    Section 8.05) to the extent (A) such proceeds
    are not reinvested in the same or similar properties or assets
    within twelve months of the date of such Disposition and
    (B) the aggregate amount of such proceeds that are not
    reinvested in accordance with clause (A) hereof exceeds
    $10 million in any fiscal year.






		
	 	     
    (iii) Debt Transactions. Until the occurrence of a
    Mandatory Prepayment Modification Event, prepayment will be made
    on the Loan Obligations in an amount equal to fifty percent
    (50%) of the Net Cash Proceeds from any Debt Transactions on the
    Business Day following receipt thereof (but excluding any
    refinancings unless Net Cash Proceeds are generated therefrom)
    occurring after the Closing Date.
	 
	 	     
    (iv) Securitization Transactions. Until the
    occurrence of a Mandatory Prepayment Modification Event,
    prepayment will be made on the Loan Obligations in an amount
    equal to one hundred percent (100%) of the Net Cash Proceeds
    from any Securitization Transaction (other than the Excluded
    Securitization Transactions or any replacements or refinancings
    thereof) on the Business Day following receipt thereof.
	 
	 	     
    (v) Equity Transactions. Prepayment will be made on
    the Loan Obligations in an amount equal to (A) seventy-five
    percent (75%) of the Net Cash Proceeds from Equity Transactions
    occurring after the Closing Date where the Consolidated Leverage
    Ratio will be greater than 3.5:1.0 after giving effect thereto
    on a Pro Forma Basis, and (B) fifty percent (50%) of Net
    Cash Proceeds from Equity Transactions occurring after the
    Closing Date where the Consolidated Leverage Ratio will be equal
    to or less than 3.5:1.0 after giving effect thereto on a Pro
    Forma Basis. Any prepayment in respect of an Equity Transaction
    hereunder will be payable on the Business Day following receipt
    thereof.
	 
	 	     
    (vi) Excess Cash Flow. Prepayment will be made on
    the Loan Obligations in an amount equal to fifty percent (50%)
    of Consolidated Excess Cash Flow for each fiscal year where
    (i) the Consolidated Leverage Ratio as of the end of such
    fiscal year will be greater than 3.5:1.0 after giving effect
    thereto on a Pro Forma Basis and (ii) the Borrower’s
    Debt Rating as of the end of such fiscal year is lower than Ba3
    from Moody’s or lower than BB-from S&P or unrated. Any
    prepayment in respect of Consolidated Excess Cash Flow hereunder
    will be payable annually on April 15 of the immediately
    following fiscal year (commencing on April 15, 2007 for fiscal
    year 2006).



     
(c) Application. Within each Loan, prepayments will
be applied first to Base Rate Loans, then to Eurocurrency Rate
Loans in direct order of Interest Period maturities. In addition:






		
	 	     
    (i) Voluntary Prepayments. Voluntary prepayments
    shall be applied to the Term Loans as specified by the
    Borrowers; provided that any such prepayment on a Term



58







 






		
	 	
    Loan will be applied to such Term Loan first in forward
    order of maturity to the principal amortization payments coming
    due within the next twelve (12) months in direct order of
    maturity and second pro rata to the remaining principal
    amortization installments on such Term Loan, as the case may be.
    Voluntary prepayments on the Loan Obligations will be paid by
    the Administrative Agent to the Lenders ratably in accordance
    with their respective interests therein.






		
	 	     
    (ii) Mandatory Prepayments. Mandatory prepayments on
    the Loan Obligations will be paid by the Administrative Agent to
    the Lenders ratably in accordance with their respective
    interests therein; provided that:






		
	 	     
    (A) Mandatory prepayments in respect of the Revolving
    Commitments under subsection (b)(i) above shall be
    applied to the respective Revolving Obligations as appropriate.
	 
	 	     
    (B) Mandatory prepayments in respect of Dispositions under
    subsection (b)(ii) above, Debt Transactions under
    subsection (b)(iii), Securitization Transactions under
    subsection (b)(iv), Equity Transactions under
    subsection (b)(v) and Consolidated Excess Cash Flow under
    subsection (b)(vi) above shall be applied (i) pro
    rata to the Term Loans until paid in full, first in forward
    order to the principal amortization payments coming due within
    the next twelve (12) months and second pro rata to the
    remaining principal amortization installments on the Term Loans,
    until paid in full, then (ii) to the Revolving Loan
    Obligations.



     
SECTION 2.07 Termination or Reduction of
Commitments.



     
(a) Voluntary Reductions. The Commitments hereunder
may be permanently reduced in whole or in part by notice from
FMCAG to the Administrative Agent; provided that
(i) any such notice thereof must be received by 12:00 noon
by the Administrative Agent at least three Business Days prior
to the date of reduction or termination and any such prepayment
shall be in a minimum principal amount of $5 million and
integral multiples of $1 million in excess thereof; and
(ii) the Commitments may not be reduced to an amount less
than the obligations then outstanding thereunder. The
Administrative Agent will give prompt notice to the applicable
Lenders of any such reduction in Commitments and the
Lender’s portion thereof. Any such reduction in Commitments
will be accompanied by payment of fees which have accrued but
have not been paid in respect of the Commitments that are being
terminated.



     
(b) Mandatory Reductions. The Aggregate Revolving
Committed Amount will not be permanently reduced by amounts
prepaid on the Revolving Obligations in respect of Commitments
under Section 2.06(b)(i), Dispositions under
Section 2.06(b)(ii), Debt Transactions under
Section 2.06(b)(iii) and Securitization Transactions
under Section 2.06(b)(iv), Equity Transactions under
Section 2.06(b)(v) and Consolidated Excess Cash Flow
under Section 2.06(b)(vi).



59







 



     
SECTION 2.08 Additional Provisions with respect to
Letters of Credit.



     
(a) Obligation to Issue and Amend.






		
	 	     
    (i) The L/ C Issuer shall be under no obligation to issue
    any Letter of Credit if:






		
	 	     
    (A) the issuance of such Letter of Credit would violate one
    or more policies of the L/ C Issuer applicable to its customers
    generally; or
	 
	 	     
    (B) such Letter of Credit is in an initial amount less than
    $50,000 or is to be denominated in a currency other than Dollars
    or Available Foreign Currencies.






		
	 	     
    (ii) The L/ C Issuer shall not issue any Letter of Credit
    if:






		
	 	     
    (A) any order, judgment or decree of any Governmental
    Authority or arbitrator shall by its terms purport to enjoin or
    restrain the L/ C Issuer from issuing such Letter of Credit, or
    any Law applicable to the L/ C Issuer or any request or
    directive (whether or not having the force of Law) from any
    Governmental Authority with jurisdiction over the L/ C Issuer
    shall prohibit, or request that the L/ C Issuer refrain from,
    the issuance of letters of credit generally or such Letter of
    Credit in particular or shall impose upon the L/ C Issuer with
    respect to such Letter of Credit any restriction, reserve or
    capital requirement (for which the L/ C Issuer is not otherwise
    compensated hereunder) not in effect on the Closing Date, or
    shall impose upon the L/ C Issuer any unreimbursed loss, cost or
    expense that was not applicable on the Closing Date and that the
    L/ C Issuer in good faith deems material to it;
	 
	 	     
    (B) subject to Section 2.08(b)(iii), the expiry
    date of such requested Letter of Credit would occur more than
    twelve months after the date of issuance or last renewal;
	 
	 	     
    (C) one or more applicable conditions contained in
    Section 5.02 shall not then be satisfied and the L/ C
    Issuer shall have received written notice thereof from the
    Administrative Agent or any Revolving Lender or any Credit Party
    at least one Business Day prior to the requested date of
    issuance of such Letter of Credit; or
	 
	 	     
    (D) the Commitments have been terminated pursuant to
    Section 9.02.






		
	 	     
    (iii) The L/ C Issuer shall be under no obligation to amend
    any Letter of Credit if:






		
	 	     
    (A) the L/ C Issuer would have no obligation at such time
    to issue such Letter of Credit in its amended form under the
    terms hereof; or



60







 






		
	 	     
    (B) the beneficiary of such Letter of Credit does not
    accept the proposed amendment to such Letter of Credit.






		
	 	     
    (iv) The L/ C Issuer shall not amend any Letter of Credit
    if:






		
	 	     
    (A) one or more applicable conditions contained in
    Section 5.02 shall not then be satisfied and the L/ C
    Issuer shall have received written notice thereof from any
    Revolving Lender or any Credit Party at least one Business Day
    prior to the requested date of amendment of such Letter of
    Credit; or
	 
	 	     
    (B) the Commitments have been terminated pursuant to
    Section 9.02.



     
(b) Procedures for Issuance and Amendment of Letters of
Credit; Auto-Renewal Letters of Credit.






		
	 	     
    (i) Each Letter of Credit shall be issued or amended, as
    the case may be, upon the request of the applicable Borrower
    delivered to the L/ C Issuer (with a copy to the Administrative
    Agent) in the form of a Letter of Credit Application,
    appropriately completed and signed by a Responsible Officer or
    duly authorized signatory of such Borrower. Such Letter of
    Credit Application must be received by the L/ C Issuer and the
    Administrative Agent not later than 12:00 noon at least two
    Business Days (or such later date and time as the L/ C Issuer
    may agree in a particular instance in its sole discretion) prior
    to the proposed issuance date or date of amendment, as the case
    may be. In the case of a request for an initial issuance of a
    Letter of Credit, such Letter of Credit Application shall
    specify in form and detail satisfactory to the L/ C Issuer:
    (A) the proposed issuance date of the requested Letter of
    Credit (which shall be a Business Day); (B) the currency
    and amount thereof; (C) the expiry date thereof;
    (D) the name and address of the beneficiary thereof;
    (E) the documents to be presented by such beneficiary in
    case of any drawing thereunder; (F) the full text of any
    certificate to be presented by such beneficiary in case of any
    drawing thereunder; and (G) such other matters as the L/ C
    Issuer may require. In the case of a request for an amendment of
    any outstanding Letter of Credit, such Letter of Credit
    Application shall specify in form and detail satisfactory to the
    L/ C Issuer (1) the Letter of Credit to be amended;
    (2) the proposed date of amendment thereof (which shall be
    a Business Day); (3) the nature of the proposed amendment;
    and (4) such other matters as the L/ C Issuer may require.
	 
	 	     
    (ii) Promptly after receipt of any Letter of Credit
    Application, the L/ C Issuer will confirm with the
    Administrative Agent (by telephone or in writing) that the
    Administrative Agent has received a copy of such Letter of
    Credit Application from such Borrower and, if not, the L/ C
    Issuer will provide the Administrative Agent with a copy
    thereof. Upon receipt by the L/ C Issuer of confirmation from
    the Administrative Agent that the requested issuance or
    amendment is permitted in accordance with the terms hereof,
    then, subject to the terms and conditions hereof, the L/ C
    Issuer shall, on the requested date, issue a Letter of Credit
    for the account of such Borrower or enter into the applicable
    amendment, as the case may be, in each case in accordance with
    the L/ C Issuer’s usual and customary business practices.
    Immediately upon the issuance of each



61







 






		
	 	
    Letter of Credit, each Revolving Lender shall be deemed to, and
    hereby irrevocably and unconditionally agrees to, purchase from
    the L/ C Issuer a risk participation in such Letter of Credit in
    an amount equal to the product of such Lender’s Revolving
    Commitment Percentage multiplied by the amount of such
    Letter of Credit.






		
	 	     
    (iii) If the Borrowers so request in any applicable Letter
    of Credit Application, the L/ C Issuer may, in its sole and
    absolute discretion, agree to issue a Letter of Credit that has
    automatic renewal provisions (each, an “Auto-Renewal
    Letter of Credit”); provided that any such
    Auto-Renewal Letter of Credit must permit the L/ C Issuer to
    prevent any such renewal at least once in each twelve-month
    period (commencing with the date of issuance of such Letter of
    Credit) by giving prior notice to the beneficiary thereof not
    later than a day (the “Nonrenewal Notice Date”)
    in each such twelve-month period to be agreed upon at the time
    such Letter of Credit is issued. Unless otherwise directed by
    the L/ C Issuer, the Borrowers shall not be required to make a
    specific request to the L/ C Issuer for any such renewal. Once
    an Auto-Renewal Letter of Credit has been issued, the Revolving
    Lenders shall be deemed to have authorized (but may not require)
    the L/ C Issuer to permit the renewal of such Letter of Credit
    at any time prior to the Letter of Credit Expiration Date;
    provided, however, that the L/ C Issuer shall not permit
    any such renewal if (A) the L/ C Issuer has determined that
    it would have no obligation at such time to issue such Letter of
    Credit in its renewed form under the terms hereof (by reason of
    the provisions of Section 2.08(a) or otherwise), or
    (B)(1) it has received notice (which may be by telephone or in
    writing) on or before the day that is five Business Days before
    the Nonrenewal Notice Date from the Administrative Agent that
    the Required Revolving Lenders have elected not to permit such
    renewal or (2) one or more of the applicable conditions
    specified in Section 5.02 is not then satisfied and
    the L/ C Issuer shall have received notice thereof from the
    Administrative Agent, any Revolving Lender or the Borrowers, in
    each case directing the L/ C Issuer not to permit such renewal.
	 
	 	     
    (iv) Promptly after its delivery of any Letter of Credit or
    any amendment to a Letter of Credit to an advising bank with
    respect thereto or to the beneficiary thereof, the L/ C Issuer
    will also deliver to the applicable Borrower and the
    Administrative Agent a true and complete copy of such Letter of
    Credit or amendment.



     
(c) Drawings and Reimbursements; Funding of
Participations.






		
	 	     
    (i) Upon any drawing under any Letter of Credit, the L/ C
    Issuer shall notify FMCH and the Administrative Agent thereof.
    Not later than 12:00 noon on the date of any payment by the L/ C
    Issuer under a Letter of Credit (each such date, an
    “Honor Date”), the Borrowers shall reimburse
    the L/ C Issuer through the Administrative Agent in an amount
    equal to the amount of such drawing in the applicable currency,
    in the case of Letters of Credit denominated in Dollars or an
    Available Currency. In the case of a Letter of Credit
    denominated in an Alternative Currency, the Borrowers shall
    reimburse the L/ C Issuer in such Alternative Currency, unless
    (A) the L/ C Issuer (at its option) shall have specified in
    such notice that it will require or permit reimbursement in
    Dollars or the Alternative Currency is not available, or
    (B) in the absence of any requirement for reimbursements in
    Dollars, the Borrowers shall have notified the L/ C Issuer
    promptly



62







 






		
	 	
    following receipt of the notice of drawing that they will
    reimburse the L/ C Issuer in Dollars. In the case of any such
    reimbursement in Dollars of a drawing of a Letter of Credit
    denominated in an Alternative Currency, the L/ C Issuer shall
    notify the Borrowers of the Dollar Equivalent of the amount of
    the drawing promptly following the determination thereof. If the
    Borrowers fail to so reimburse the L/ C Issuer by such time, the
    Administrative Agent shall promptly notify each Revolving Lender
    of the Honor Date, the amount of the unreimbursed drawing
    expressed in Dollars in the amount of the Dollar Equivalent
    thereof, in the case of a Letter of Credit denominated in a
    Foreign Currency, and, in the case of a Letter of Credit
    denominated in an Available Foreign Currency, expressed in such
    Foreign Currency (the “Unreimbursed Amount”),
    and the amount of such Lender’s Revolving Commitment
    Percentage thereof. In the case of any Letter of Credit
    denominated in a Foreign Currency, the Unreimbursed Amount shall
    be redenominated into Dollars and equal the Dollar Equivalent
    amount thereof, and the Administrative Agent shall notify the
    Revolving Lenders thereof. In such event, the Borrowers shall be
    deemed to have requested a Borrowing of Revolving Loans that are
    Base Rate Loans to be disbursed on the Honor Date in an amount
    equal to the Unreimbursed Amount, without regard to the minimum
    and multiples specified in Section 2.02 for the
    principal amount of Base Rate Loans, the amount of the
    unutilized portion of the Aggregate Revolving Commitments or the
    conditions set forth in Section 5.02. Any notice
    given by the L/ C Issuer or the Administrative Agent pursuant to
    this Section 2.08(c)(i) may be given by telephone if
    immediately confirmed in writing; provided that the lack
    of such an immediate confirmation shall not affect the
    conclusiveness or binding effect of such notice.






		
	 	     
    (ii) Each Revolving Lender (including the Lender acting as
    L/ C Issuer) shall upon any notice pursuant to
    Section 2.08(c)(i) make funds available to the
    Administrative Agent for the account of the L/ C Issuer at the
    Administrative Agent’s Office in an amount equal to its
    Revolving Commitment Percentage of the Unreimbursed Amount not
    later than 2:00 p.m. on the Business Day specified in such
    notice by the Administrative Agent, whereupon, subject to the
    provisions of Section 2.08(c)(iii), each Revolving Lender
    that so makes funds available shall be deemed to have made a
    Revolving Loan that is a Base Rate Loan to the Borrowers in such
    amount. The Administrative Agent shall remit the funds so
    received to the L/ C Issuer in Dollars.
	 
	 	     
    (iii) With respect to any Unreimbursed Amount that is not
    fully refinanced by a Borrowing of Revolving Loans that are Base
    Rate Loans for any reason, the Borrowers shall be deemed to have
    incurred from the L/ C Issuer an L/ C Borrowing in the amount of
    the Unreimbursed Amount that is not so refinanced, which L/ C
    Borrowing shall be due and payable on demand (together with
    interest) and shall bear interest at the Default Rate. In such
    event, each Revolving Lender’s payment to the
    Administrative Agent for the account of the L/ C Issuer pursuant
    to Section 2.08(c)(ii) shall be deemed payment in
    respect of its participation in such L/ C Borrowing and shall
    constitute an L/ C Advance from such Lender in satisfaction of
    its participation obligation under this Section 2.08.
	 
	 	     
    (iv) Until each Revolving Lender funds its Revolving Loan
    or L/ C Advance pursuant to this Section 2.08(c) to
    reimburse the L/ C Issuer for any amount drawn under



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    any Letter of Credit, interest in respect of such Lender’s
    Revolving Commitment Percentage of such amount shall be solely
    for the account of the L/ C Issuer.






		
	 	     
    (v) Each Revolving Lender’s obligation to make
    Revolving Loans or L/ C Advances to reimburse the L/C Issuer for
    amounts drawn under Letters of Credit, as contemplated by this
    Section 2.08(c), shall be absolute and unconditional
    and shall not be affected by any circumstance, including
    (A) any set-off, counterclaim, recoupment, defense or other
    right that such Lender may have against the L/ C Issuer, the
    Borrowers or any other Person for any reason whatsoever;
    (B) the occurrence or continuance of a Default or Event of
    Default, (C) non-compliance with the conditions set forth
    in Section 5.02, or (D) any other occurrence,
    event or condition, whether or not similar to any of the
    foregoing. No such making of an L/ C Advance shall relieve or
    otherwise impair the obligation of the Borrowers to reimburse
    the L/ C Issuer for the amount of any payment made by the L/ C
    Issuer under any Letter of Credit, together with interest as
    provided herein.
	 
	 	     
    (vi) If any Revolving Lender fails to make available to the
    Administrative Agent for the account of the L/ C Issuer any
    amount required to be paid by such Lender pursuant to the
    foregoing provisions of this Section 2.08(c) by the
    time specified in Section 2.08(c)(ii), the L/ C Issuer
    shall be entitled to recover from such Lender (acting through
    the Administrative Agent), on demand, such amount with interest
    thereon for the period from the date such payment is required to
    the date on which such payment is immediately available to the
    L/ C Issuer at a rate per annum equal to the Federal Funds Rate
    then in effect. A certificate of the L/ C Issuer submitted to
    any Revolving Lender (through the Administrative Agent) with
    respect to any amounts owing under this clause (vi) shall
    be conclusive absent manifest error.



     
(d) Repayment of Participations.






		
	 	     
    (i) At any time after the L/ C Issuer has made a payment
    under any Letter of Credit and has received from any Revolving
    Lender such Lender’s L/ C Advance in respect of such
    payment in accordance with Section 2.08(c), if the
    Administrative Agent receives for the account of the L/ C Issuer
    any payment in respect of the related Unreimbursed Amount or
    interest thereon (whether directly from the Borrowers or
    otherwise, including proceeds of cash collateral applied thereto
    by the Administrative Agent), the Administrative Agent will
    distribute to such Lender its Revolving Commitment Percentage
    thereof (appropriately adjusted, in the case of interest
    payments, to reflect the period of time during which such
    Lender’s L/ C Advance was outstanding) in the same funds as
    those received by the Administrative Agent.
	 
	 	     
    (ii) If any payment received by the Administrative Agent
    for the account of the L/ C Issuer pursuant to
    Section 2.08(c)(i) is required to be returned under
    any of the circumstances described in Section 11.06
    (including pursuant to any settlement entered into by the L/ C
    Issuer in its discretion), each Revolving Lender shall pay to
    the Administrative Agent for the account of the L/ C Issuer its
    Revolving Commitment Percentage thereof on demand of the
    Administrative Agent, plus interest thereon from the



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    date of such demand to the date such amount is returned by such
    Lender, at a rate per annum equal to the applicable Overnight
    Rate from time to time in effect. The obligations of the
    Revolving Lenders under this clause shall survive the payment in
    full of the Obligations and termination of this Credit Agreement.



     
(e) Obligations Absolute. The obligation of the
Borrowers to reimburse the L/ C Issuer for each drawing under
each Letter of Credit and to repay each L/ C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement
under all circumstances, including the following:






		
	 	     
    (i) any lack of validity or enforceability of such Letter
    of Credit, this Credit Agreement, or any other agreement or
    instrument relating thereto;
	 
	 	     
    (ii) the existence of any claim, counterclaim, set-off,
    defense or other right that the Borrowers may have at any time
    against any beneficiary or any transferee of such Letter of
    Credit (or any Person for whom any such beneficiary or any such
    transferee may be acting), the L/ C Issuer or any other Person,
    whether in connection with this Credit Agreement, the
    transactions contemplated hereby or by such Letter of Credit or
    any agreement or instrument relating thereto, or any unrelated
    transaction;
	 
	 	     
    (iii) any draft, demand, certificate or other document
    presented under such Letter of Credit proving to be forged,
    fraudulent, invalid or insufficient in any respect or any
    statement therein being untrue or inaccurate in any respect; or
    any loss or delay in the transmission or otherwise of any
    document required in order to make a drawing under such Letter
    of Credit;
	 
	 	     
    (iv) any payment by the L/ C Issuer under such Letter of
    Credit against presentation of a draft or certificate that does
    not strictly comply with the terms of such Letter of Credit; or
    any payment made by the L/ C Issuer under such Letter of Credit
    to any Person purporting to be a trustee in bankruptcy,
    debtor-in-possession, assignee for the benefit of creditors,
    liquidator, receiver or other representative of or successor to
    any beneficiary or any transferee of such Letter of Credit,
    including any arising in connection with any proceeding under
    any Debtor Relief Law;
	 
	 	     
    (v) any adverse change in the relevant exchange rates or in
    the availability of the relevant Alternative Foreign Currency to
    the Borrowers or their Subsidiaries or in the relevant currency
    markets generally; or
	 
	 	     
    (vi) any other circumstance or happening whatsoever,
    whether or not similar to any of the foregoing, including any
    other circumstance that might otherwise constitute a defense
    available to, or a discharge of, any Borrower.



     
The Borrowers shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to them and,
in the event of any claim of noncompliance with the
Borrowers’ instructions or other irregularity, the
Borrowers will immediately notify the L/ C Issuer.



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(f) Role of L/ C Issuer. Each Revolving Lender and
each Borrower agrees that, in paying any drawing under a Letter
of Credit, the L/ C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering
any such document. None of the L/ C Issuer, any Agent-Related
Person nor any of the respective correspondents, participants or
assignees of the L/ C Issuer shall be liable to any Revolving
Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving
Lenders or the Required Revolving Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter
of Credit Application. Each Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude any Borrower’s pursuit of such rights and remedies
as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/ C Issuer, any
Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/ C Issuer, shall be liable or
responsible for any of the matters described in clauses
(i) through (vi) of Section 2.08(e);
provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrowers may have a claim against
the L/ C Issuer, and the L/ C Issuer may be liable to the
Borrowers, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by
any Borrower that such Borrower proves were caused by the L/ C
Issuer’s willful misconduct or gross negligence or the L/ C
Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft
and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/ C Issuer may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/ C Issuer shall
not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer
or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason.



     
(g) Cash Collateral. (i) If the L/ C Issuer has
honored any drawing request under any Letter of Credit and such
drawing has resulted in an L/ C Borrowing, or (ii) if, as
of the Termination Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the
Borrowers shall immediately Cash Collateralize the then
Outstanding Amount of all L/ C Obligations (in an amount equal
to such Outstanding Amount determined as of the date of such L/
C Borrowing or the Termination Date, as the case may be). Cash
collateral shall be maintained in blocked, interest-bearing
deposit accounts at Bank of America.



     
(h) Applicability of ISP. Unless otherwise expressly
agreed by the L/ C Issuer and the Borrowers when a Letter of
Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the ISP shall apply to
each Letter of Credit.



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(i) Letter of Credit Fees. The Borrowers shall pay
Letter of Credit fees as set forth in
Section 2.04(b).



     
(j) Conflict with Letter of Credit Application. In
the event of any conflict between the terms hereof and the terms
of any Letter of Credit Application, the terms hereof shall
control.



     
SECTION 2.09 Additional Provisions relating to
Domestic Swing Line Loans.



     
(a) Borrowing Procedures. Each Borrowing of Domestic
Swing Line Loans shall be made upon the applicable
Borrower’s or Borrowers’ irrevocable notice to the
applicable Domestic Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be
received by the applicable Domestic Swing Line Lender and the
Administrative Agent not later than 2:00 p.m. on the requested
borrowing date, and shall specify (i) the Borrower or
Borrowers therefor, (ii) the amount to be borrowed, which
shall be a minimum of $100,000, and (iii) the requested
borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to the
applicable Domestic Swing Line Lender and the Administrative
Agent of a written Domestic Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer or
duly authorized signatory of the applicable Borrower. Promptly
after receipt by the applicable Domestic Swing Line Lender of
any telephonic Domestic Swing Line Loan Notice, the applicable
Domestic Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent
has also received such Domestic Swing Line Loan Notice and, if
not, the applicable Domestic Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the applicable Domestic Swing Line
Lender has received notice (by telephone or in writing) from the
Administrative Agent or any Revolving Lender prior to 3:00 p.m.
on the date of the proposed Borrowing of Domestic Swing Line
Loans (A) directing the applicable Domestic Swing Line
Lender not to make such Domestic Swing Line Loan as a result of
the limitations set forth in Section 2.01(c), or
(B) that one or more of the applicable conditions specified
in Section 5.02 is not then satisfied, then, subject
to the terms and conditions hereof, the applicable Domestic
Swing Line Lender will, not later than 3:30 p.m. on the
borrowing date specified in such Domestic Swing Line Loan
Notice, make the amount of its Domestic Swing Line Loan
available to such Borrower at its office by (i) crediting
the account of such Borrower on the books of the applicable
Domestic Swing Line Lender in Same Day Funds, or (ii) wire
transfer of such funds, in each case in accordance with
reasonably acceptable instructions provided to the applicable
Domestic Swing Line Lender by such Borrower or Borrowers.



     
(b) Refinancing of Domestic Swing Line Loans.






		
	 	     
    (i) Each Domestic Swing Line Lender at any time in its sole
    and absolute discretion may request, on behalf of the applicable
    Borrower or Borrowers (and such Borrowers hereby irrevocably
    authorize the Domestic Swing Line Lenders to so request on its
    behalf), that each Revolving Lender make a Committed Revolving
    Loan that is a Base Rate Loan in an amount equal to such
    Lender’s Revolving Commitment Percentage of the amount of
    Domestic Swing Line Loans made by such Domestic Swing Line
    Lender then outstanding. Such request shall be made by the
    applicable Domestic Swing



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    Line Lender in writing (which written request shall be deemed to
    be a Loan Notice for purposes hereof) and in accordance with the
    requirements of Section 2.02, without regard to the
    minimum and multiples specified therein for the principal amount
    of Base Rate Loans, the unutilized portion of the Aggregate
    Revolving Commitments or the conditions set forth in
    Section 5.02. The applicable Domestic Swing Line
    Lender shall furnish the applicable Borrower or Borrowers with a
    copy of such Loan Notice promptly after delivering such notice
    to the Administrative Agent. Each Revolving Lender shall make an
    amount equal to its Revolving Commitment Percentage of the
    amount specified in such Loan Notice available to the
    Administrative Agent in Same Day Funds for the account of the
    applicable Domestic Swing Line Lender at the Administrative
    Agent’s Office not later than 1:00 p.m. on the day
    specified in such Loan Notice, whereupon, subject to Section
    2.09(b)(ii), each Revolving Lender that so makes funds
    available shall be deemed to have made a Committed Revolving
    Loan that is a Base Rate Loan to the applicable Borrower or
    Borrowers in such amount. The Administrative Agent shall remit
    the funds so received to the applicable Domestic Swing Line
    Lender.






		
	 	     
    (ii) If for any reason any Domestic Swing Line Loan cannot
    be refinanced by such a Borrowing of Committed Revolving Loans
    in accordance with Section 2.09(b)(i), the request
    for Committed Revolving Loans submitted by the applicable
    Domestic Swing Line Lender as set forth herein shall be deemed
    to be a request by the applicable Domestic Swing Line Lender
    that each of the Revolving Lenders fund its risk participation
    in the relevant Domestic Swing Line Loan and each such
    Lender’s payment to the Administrative Agent for the
    account of the applicable Domestic Swing Line Lender pursuant to
    Section 2.09(b)(i) shall be deemed payment in
    respect of such participation.
	 
	 	     
    (iii) If any Revolving Lender fails to make available to
    the Administrative Agent for the account of the applicable
    Domestic Swing Line Lender any amount required to be paid by
    such Lender pursuant to the foregoing provisions of this
    Section 2.09(b) by the time specified in
    Section 2.09(b)(i), the applicable Domestic Swing
    Line Lender shall be entitled to recover from such Lender
    (acting through the Administrative Agent), on demand, such
    amount with interest thereon for the period from the date such
    payment is required to the date on which such payment is
    immediately available to the applicable Domestic Swing Line
    Lender at a rate per annum equal to the Federal Funds Rate from
    time to time in effect. A certificate of the applicable Domestic
    Swing Line Lender submitted to any Revolving Lender (through the
    Administrative Agent) with respect to any amounts owing under
    this clause (iii) shall be conclusive absent manifest
    error.
	 
	 	     
    (iv) Each Revolving Lender’s obligation to make
    Committed Revolving Loans or to purchase and fund risk
    participations in Domestic Swing Line Loans pursuant to this
    Section 2.09(b) shall be absolute and unconditional
    and shall not be affected by any circumstance, including
    (A) any set-off, counterclaim, recoupment, defense or other
    right that such Lender may have against the applicable Domestic
    Swing Line Lender, the Borrowers or any other Person for any
    reason whatsoever, (B) the occurrence or continuance of a
    Default or Event of Default, (C) non-compliance with the
    conditions set



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    forth in Section 5.02, or (D) any other
    occurrence, event or condition, whether or not similar to any of
    the foregoing. No such purchase or funding of risk
    participations shall relieve or otherwise impair the obligation
    of the Borrowers to repay Domestic Swing Line Loans, together
    with interest as provided herein.



     
(c) Repayment of Participations.






		
	 	     
    (i) At any time after any Revolving Lender has purchased
    and funded a risk participation in a Domestic Swing Line Loan,
    if the applicable Domestic Swing Line Lender receives any
    payment on account of such Domestic Swing Line Loan, the
    applicable Domestic Swing Line Lender will distribute to such
    Lender its Revolving Commitment Percentage of such payment
    (appropriately adjusted, in the case of interest payments, to
    reflect the period of time during which such Lender’s risk
    participation was funded) in the same funds as those received by
    the applicable Domestic Swing Line Lender.
	 
	 	     
    (ii) If any payment received by the applicable Domestic
    Swing Line Lender in respect of principal or interest on any
    Domestic Swing Line Loan is required to be returned by the
    applicable Domestic Swing Line Lender under any of the
    circumstances described in Section 11.06 (including
    pursuant to any settlement entered into by the applicable
    Domestic Swing Line Lender in its discretion), each Revolving
    Lender shall pay to the applicable Domestic Swing Line Lender
    its Revolving Commitment Percentage thereof on demand of the
    Administrative Agent, plus interest thereon from the date
    of such demand to the date such amount is returned, at a rate
    per annum equal to the Federal Funds Rate. The Administrative
    Agent will make such demand upon the request of the applicable
    Domestic Swing Line Lender.



     
(d) Interest for Account of Domestic Swing Line
Lender. Each Domestic Swing Line Lender will be responsible
for invoicing the Borrowers for interest on the Domestic Swing
Line Loans made by such Domestic Swing Line Lender. Until each
Revolving Lender funds its Committed Revolving Loan or risk
participation pursuant to this Section 2.09 to
refinance such Lender’s Revolving Commitment Percentage of
such Domestic Swing Line Loans, interest in respect thereof
shall be solely for the account of such Domestic Swing Line
Lender.



     
(e) Payments Directly to Domestic Swing Line Lender.
The Borrowers shall make all payments of principal and interest
in respect of the Domestic Swing Line Loans made by any Domestic
Swing Line Lender directly to such Domestic Swing Line Lender.



     
SECTION 2.10 Additional Provisions relating to
Foreign Swing Line Loans.



     
(a) Borrowing Procedures. Each Borrowing of Foreign
Swing Line Loans shall be made upon the applicable
Borrower’s irrevocable notice to the Foreign Swing Line
Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Foreign
Swing Line Lender and the Administrative Agent not later than,
in the case of Foreign Swing Line Loans made by Dresdner in
Available Foreign Currencies (except as otherwise agreed by
Dresdner), 2:00 p.m. (Central European Time) three Business Days
prior to



69







 




the requested borrowing date for application of the Eurocurrency
Rate and one Business Day prior to the requested borrowing date
for application of the Absolute Rate (which rate shall be
determined by the Foreign Swing Line Lender), and, in all other
cases, by such times and number of days in advance of the
requested borrowing date as may be required by the respective
Foreign Swing Line Lender, and shall specify (i) the
Borrower therefor, (ii) the type, currency and amount of
financial accommodation requested, in such minimum amounts by
mutual agreement, and if a loan is requested, the applicable
Interest Period therefor, (iii) the requested borrowing
date, which shall be a Business Day and (iv) reasonably
acceptable wire instructions. Each such telephonic notice must
be confirmed promptly by delivery to the Foreign Swing Line
Lender and the Administrative Agent of a written Foreign Swing
Line Loan Notice, appropriately completed and signed by a
Responsible Officer or duly authorized signatory of the
applicable Borrower. Promptly after receipt by the Foreign Swing
Line Lender of any telephonic Foreign Swing Line Loan Notice,
the Foreign Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Foreign Swing Line
Loan Notice and, if not, the Foreign Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of
the contents thereof. Unless the Foreign Swing Line Lender has
received notice (by telephone or in writing) from the
Administrative Agent or any Revolving Lender within two hours
after receipt by it of any such notice of request for a Foreign
Swing Line Loan (A) directing the Foreign Swing Line Lender
not to make such Foreign Swing Line Loan as a result of the
limitations set forth in Section 2.01(d), or
(B) that one or more of the applicable conditions specified
in Section 5.02 is not then satisfied, then, subject
to the terms and conditions hereof, the Foreign Swing Line
Lender will, not later than 3:30 p.m. (local time) on the
borrowing date specified in such Foreign Swing Line Loan Notice,
make the amount of its Foreign Swing Line Loan available to such
Borrower at its office by crediting the account of such Borrower
on the books of the Foreign Swing Line Lender in Same Day Funds,
or by wire transfer of such funds, in each case in accordance
with reasonably acceptable instructions provided to the Foreign
Swing Line Lender by such Borrower.



     
(b) Refinancing of Foreign Swing Line Loans.






		
	 	     
    (i) The Foreign Swing Line Lender at any time in its sole
    and absolute discretion may request, on behalf of the Borrowers
    (and the Borrowers hereby irrevocably authorize the Foreign
    Swing Line Lender to so request on its behalf), that each
    Revolving Lender make a Committed Revolving Loan that is a
    Eurocurrency Rate Loan in an amount equal to such Lender’s
    Revolving Commitment Percentage of the amount of Foreign Swing
    Line Loans then outstanding; provided that,
    notwithstanding anything contained herein to the contrary, any
    such Committed Revolving Loans made in respect of Shared Foreign
    Swing Line Loans that are denominated in Designated Alternative
    Foreign Currencies may be made in Dollars in the Dollar
    Equivalent thereof. Such request shall be made by the Foreign
    Swing Line Lender in writing (which written request shall be
    deemed to be a Loan Notice for purposes hereof) and in
    accordance with the requirements of Section 2.02, without
    regard to the minimum and multiples specified therein for the
    principal amount of Eurocurrency Rate Loans, the unutilized
    portion of the Aggregate Revolving Commitments or the conditions
    set forth in Section 5.02. The Foreign Swing Line
    Lender shall furnish the Borrowers with a copy of the applicable



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    Loan Notice promptly after delivering such notice to the
    Administrative Agent. Each Revolving Lender shall make an amount
    equal to its Revolving Commitment Percentage of the amount
    specified in such Loan Notice available to the Administrative
    Agent in Same Day Funds for the account of the Foreign Swing
    Line Lender at the Administrative Agent’s Office not later
    than 1:00 p.m. on the day specified in such Loan Notice,
    whereupon, subject to Section 2.10(b)(ii), each
    Revolving Lender that so makes funds available shall be deemed
    to have made a Committed Revolving Loan that is a Base Rate Loan
    to the Borrowers in such amount. The Administrative Agent shall
    remit the funds so received to the Foreign Swing Line Lender.






		
	 	     
    (ii) If for any reason any Shared Foreign Swing Line Loan
    cannot be refinanced by such a Borrowing of Committed Revolving
    Loans in accordance with Section 2.10(b)(i), the
    request for Committed Revolving Loans submitted by the Foreign
    Swing Line Lender as set forth herein shall be deemed to be a
    request by the Foreign Swing Line Lender that each of the
    Revolving Lenders fund its risk participation in the relevant
    Shared Foreign Swing Line Loan and each such Lender’s
    payment to the Administrative Agent for the account of the
    Foreign Swing Line Lender pursuant to
    Section 2.10(b)(i) shall be deemed payment in
    respect of such participation.
	 
	 	     
    (iii) If any Revolving Lender fails to make available to
    the Administrative Agent for the account of the Foreign Swing
    Line Lender any amount required to be paid by such Lender
    pursuant to the foregoing provisions of this
    Section 2.10(b) by the time specified in
    Section 2.10(b)(i), the Foreign Swing Line Lender
    shall be entitled to recover from such Lender (acting through
    the Administrative Agent), on demand, such amount with interest
    thereon for the period from the date such payment is required to
    the date on which such payment is immediately available to the
    Foreign Swing Line Lender at a rate per annum equal to the
    Federal Funds Rate from time to time in effect. A certificate of
    the Foreign Swing Line Lender submitted to any Revolving Lender
    (through the Administrative Agent) with respect to any amounts
    owing under this clause (iii) shall be conclusive
    absent manifest error.
	 
	 	     
    (iv) Each Revolving Lender’s obligation to make
    Committed Revolving Loans or to purchase and fund risk
    participations in Foreign Swing Line Loans pursuant to this
    Section 2.10(b) shall be absolute and unconditional
    and shall not be affected by any circumstance, including
    (A) any set-off, counterclaim, recoupment, defense or other
    right that such Lender may have against the Foreign Swing Line
    Lender, the Borrowers or any other Person for any reason
    whatsoever, (B) the occurrence or continuance of a Default or
    Event of Default, (C) non-compliance with the conditions set
    forth in Section 5.02, or (D) any other
    occurrence, event or condition, whether or not similar to any of
    the foregoing. No such purchase or funding of risk
    participations shall relieve or otherwise impair the obligation
    of the Borrowers to repay Foreign Swing Line Loans, together
    with interest as provided herein.



     
(c) Repayment of Participations.



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    (i) At any time after any Revolving Lender has purchased
    and funded a risk participation in a Foreign Swing Line Loan, if
    the Foreign Swing Line Lender receives any payment on account of
    such Foreign Swing Line Loan, the Foreign Swing Line Lender will
    distribute to such Lender its Revolving Commitment Percentage of
    such payment (appropriately adjusted, in the case of interest
    payments, to reflect the period of time during which such
    Lender’s risk participation was funded) in the same funds
    as those received by the Foreign Swing Line Lender; provided
    that, notwithstanding anything contained herein to the contrary,
    in the case of Shared Foreign Swing Line Loans that are
    denominated in Designated Alternative Foreign Currencies,
    payment may be made in Dollars in the Dollar Equivalent thereof.
	 
	 	     
    (ii) If any payment received by the Foreign Swing Line
    Lender in respect of principal or interest on any Foreign Swing
    Line Loan is required to be returned by the Foreign Swing Line
    Lender under any of the circumstances described in
    Section 11.06 (including pursuant to any settlement
    entered into by the Foreign Swing Line Lender in its
    discretion), each Revolving Lender shall pay to the Foreign
    Swing Line Lender its Revolving Commitment Percentage thereof on
    demand of the Administrative Agent, plus interest thereon
    from the date of such demand to the date such amount is
    returned, at a rate per annum equal to the Federal Funds Rate;
    provided that, notwithstanding anything contained herein to the
    contrary, in the case of Shared Foreign Swing Line Loans that
    are denominated in Designated Alternative Foreign Currencies,
    payment may be made in Dollars in the Dollar Equivalent thereof.
    The Administrative Agent will make such demand upon the request
    of the Foreign Swing Line Lender.



     
(d) Interest for Account of Foreign Swing Line
Lender. The Foreign Swing Line Lender shall be responsible
for invoicing the applicable Borrower for interest on the
Foreign Swing Line Loans. Until each Revolving Lender funds its
Committed Revolving Loan or risk participation pursuant to this
Section 2.10 to refinance such Lender’s
Revolving Commitment Percentage of any Foreign Swing Line Loan,
interest in respect thereof shall be solely for the account of
the Foreign Swing Line Lender.



     
(e) Payments Directly to Foreign Swing Line Lender.
The Borrowers shall make all payments of principal and interest
in respect of the Foreign Swing Line Loans directly to the
Foreign Swing Line Lender.



     
(f) Additional Documentation. In connection with
Foreign Swing Line Loans, the Borrowers will provide such
additional documentation as necessary or appropriate, in the
discretion of the applicable Foreign Swing Line Lender taking
into account local custom and practice, and such additional
documentation shall constitute “Credit Documents”
hereunder. The terms of any such additional documentation may
differ from the terms herein and in the case of a conflict, the
terms of the additional documentation shall govern.



     
SECTION 2.11 Additional Provisions Relating to
Competitive Revolving Loans.



     
(a) Requesting Competitive Bids. The Borrowers may
request the submission of Competitive Bids by delivering a Bid
Request to the Competitive Bid Agent and the



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Administrative Agent not later than 12:00 noon (i) three
Business Days prior to the requested date of any Bid Borrowing
that is to consist of Absolute Rate Loans or Eurocurrency Margin
Bid Loans denominated in Dollars, (ii) four Business Days
prior to the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
denominated in Available Foreign Currencies (other than Japanese
yen) and (iii) five Business Days prior to the requested
date of any Bid Borrowing that is to consist of Absolute Rate
Loans or Eurocurrency Margin Bid Loans denominated in Japanese
yen. Each Bid Request shall specify (A) the kind of
financial accommodation requested, (B) the Borrower or
Borrowers therefor, (C) the requested date of the Bid
Borrowing (which shall be a Business Day), (D) the
aggregate principal amount of Competitive Revolving Loans
requested (which must be in the amount of ten million units of
the Applicable Currency and integral multiples of one million
units of the Applicable Currency in excess thereof),
(E) the Type of Competitive Revolving Loans requested,
(F) the currency of the requested Competitive Revolving
Loan, and (G) the duration of the Interest Period with
respect thereto, and shall be signed by a Responsible Officer or
duly authorized signatory of the applicable Borrower. No Bid
Request shall contain a request for (1) more than one Type
of Competitive Revolving Loan, (2) Competitive Revolving
Loans denominated in more than one currency or
(3) Competitive Revolving Loans having more than three
different Interest Periods. Bid Requests may be grouped and
submitted together, but not more frequently than twice in any
calendar week. Each such submission may contain up to five
separate Bid Requests. Unless the Competitive Bid Agent
otherwise agrees in its sole and absolute discretion, the
Borrowers may not submit a Bid Request if another Bid Request
has been submitted within the preceding five Business Days.



     
(b) Submitting Competitive Bids.






		
	 	     
    (i) After confirming with the Administrative Agent that the
    applicable Bid Request complies with the provisions of
    Section 2.01(e), the Competitive Bid Agent shall notify
    each Revolving Lender of each Bid Request received by it from
    the Borrowers and the contents of such Bid Request not later
    than 2:00 p.m. on the date it receives such Bid Request.
	 
	 	     
    (ii) Each Revolving Lender may (but shall have no
    obligation to) submit a Competitive Bid containing an offer to
    make one or more Competitive Revolving Loans in response to such
    Bid Request. Such Competitive Bid must be delivered to the
    Competitive Bid Agent not later than 10:00 a.m.
    (A) two Business Days prior to the requested date of any
    Bid Borrowing that is to consist of Absolute Rate Loans or
    Eurocurrency Margin Bid Loans denominated in Dollars,
    (B) three Business Days prior to the requested date of any
    Bid Borrowing that is to consist of Absolute Rate Loans or
    Eurocurrency Margin Bid Loans denominated in Available Foreign
    Currencies (other than Japanese yen) and (C) four Business
    Days prior to the requested date of any Bid Borrowing that is to
    consist of Absolute Rate Loans or Eurocurrency Margin Bid Loans
    denominated in Japanese yen; provided, however, that any
    Competitive Bid submitted by the Competitive Bid Agent in its
    capacity as a Revolving Lender in response to any Bid Request
    must be submitted to the Competitive Bid Agent not later than
    10:15 a.m. on the date on which Competitive Bids are
    required to be delivered by the other Revolving Lenders in
    response to such Bid Request. Each Competitive Bid shall specify
    (1) the



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    proposed date of the Bid Borrowing; (2) the principal
    amount of each Competitive Revolving Loan for which such
    Competitive Bid is being made, which principal amount
    (I) may be equal to, greater than or less than the
    Revolving Commitment of the bidding Lender, (II) must be in
    the amount of five million units of the Applicable Currency and
    integral multiples of one million units of the Applicable
    Currency in excess thereof, and (III) may not exceed the
    principal amount of Competitive Revolving Loans for which
    Competitive Bids were requested; (3) if the proposed Bid
    Borrowing is to consist of Absolute Rate Bid Loans, the Absolute
    Rate offered for each such Competitive Revolving Loan and the
    Interest Period applicable thereto; (4) if the proposed Bid
    Borrowing is to consist of Eurocurrency Margin Bid Loans, the
    Eurocurrency Bid Margin with respect to each such Eurocurrency
    Margin Bid Loan and the Interest Period applicable thereto; and
    (5) the identity of the bidding Lender.






		
	 	     
    (iii) Any Competitive Bid shall be disregarded if it
    (A) is received after the applicable time specified in
    clause (ii) above, (B) is not substantially in the
    form of a Competitive Bid as specified herein, (C) contains
    qualifying, conditional or similar language, (D) proposes
    terms other than or in addition to those set forth in the
    applicable Bid Request, or (E) is otherwise not responsive
    to such Bid Request. Any Revolving Lender may correct a
    Competitive Bid containing a manifest error by submitting a
    corrected Competitive Bid (identified as such) not later than
    the applicable time required for submission of Competitive Bids.
    Any such submission of a corrected Competitive Bid shall
    constitute a revocation of the Competitive Bid that contained
    the manifest error. The Competitive Bid Agent may, but shall not
    be required to, notify any Revolving Lender of any manifest
    error it detects in such Lender’s Competitive Bid.
	 
	 	     
    (iv) Subject only to the provisions of
    Sections 3.02, 3.03 and 5.02 and
    clause (iii) above, each Competitive Bid shall be
    irrevocable.



     
(c) Notice to Borrowers of Competitive Bids. Not
later than 11:00 a.m. (i) two Business Days prior to
the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans or Eurocurrency Margin Bid Loans denominated
in Dollars, (ii) three Business Days prior to the requested
date of any Bid Borrowing that is to consist of Absolute Rate
Loans or Eurocurrency Margin Bid Loans denominated in Available
Foreign Currencies (other than Japanese yen) and (iii) four
Business Days prior to the requested date of any Bid Borrowing
that is to consist of Absolute Rate Loans or Eurocurrency Margin
Bid Loans denominated in Japanese yen, the Competitive Bid Agent
shall notify the applicable Borrower or Borrowers of the
identity of each Revolving Lender that has submitted a
Competitive Bid that complies with the foregoing subsection
(b) and of the terms of the offers contained in each such
Competitive Bid.



     
(d) Acceptance of Competitive Bids. Not later than
11:30 a.m. (i) two Business Days prior to the
requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans or Eurocurrency Margin Bid Loans denominated
in Dollars, (ii) three Business Days prior to the requested
date of any Bid Borrowing that is to consist of Absolute Rate
Loans or Eurocurrency Margin Bid Loans denominated in Available
Foreign Currencies (other than Japanese yen) and (iii) four
Business Days prior to the requested date of any Bid Borrowing
that is to consist of



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Absolute Rate Loans or Eurocurrency Margin Bid Loans denominated
in Japanese yen, the Borrowers shall notify the Competitive Bid
Agent of its acceptance or rejection of the offers notified to
it pursuant to the foregoing subsection (c). The
Borrowers shall be under no obligation to accept any Competitive
Bid and may choose to reject all Competitive Bids. In the case
of acceptance, such notice shall specify the aggregate principal
amount of Competitive Bids for each Interest Period that is
accepted. The Borrowers may accept any Competitive Bid in whole
or in part; provided that:






		
	 	     
    (A) the aggregate principal amount of each Bid Borrowing
    may not exceed the applicable amount set forth in the related
    Bid Request;
	 
	 	     
    (B) the principal amount of each Competitive Revolving Loan
    must be in the amount of five million units of the Applicable
    Currency and integral multiples of one million units of the
    Applicable Currency in excess thereof;
	 
	 	     
    (C) the acceptance of offers may be made only on the basis
    of ascending Absolute Rates or Eurocurrency Bid Margins within
    each Interest Period; and
	 
	 	     
    (D) the Borrowers may not accept any offer that is
    described in the foregoing subsection (b)(iii) above or
    that otherwise fails to comply with the requirements hereof.



     
(e) Procedure for Identical Bids. If two or more
Revolving Lenders have submitted Competitive Bids at the same
Absolute Rate or Eurocurrency Bid Margin, as the case may be,
for the same Interest Period, and the result of accepting all of
such Competitive Bids in whole (together with any other
Competitive Bids at lower Absolute Rates or Eurocurrency Bid
Margins, as the case may be, accepted for such Interest Period
in conformity with the requirements of the foregoing
subsection (d) above) would be to cause the aggregate
outstanding principal amount of the applicable Bid Borrowing to
exceed the amount specified therefor in the related Bid Request,
then, unless otherwise agreed by the Borrowers, the Competitive
Bid Agent and such Lenders, such Competitive Bids shall be
accepted as nearly as possible in proportion to the amount
offered by each such Lender in respect of such Interest Period,
at such Absolute Rate or Eurocurrency Bid Margin, without regard
to the requirements of foregoing subsection (d) above.



     
(f) Notice to Lenders of Acceptance or Rejection of
Bids. The Competitive Bid Agent shall promptly notify each
Revolving Lender having submitted a Competitive Bid (with a copy
to the Administrative Agent) whether or not its offer has been
accepted and, if its offer has been accepted, of the amount of
the Competitive Revolving Loan or Competitive Revolving Loans to
be made by it on the date of the applicable Bid Borrowing. Any
Competitive Bid or portion thereof that is not accepted by the
Borrowers by the applicable time specified in foregoing
subsection (d) above shall be deemed rejected.



     
(g) Notice of Eurocurrency Rate. If any Bid
Borrowing is to consist of Eurocurrency Margin Loans, the
Competitive Bid Agent shall determine the Eurocurrency Rate for
the relevant Interest Period, and promptly after making such
determination, shall notify the applicable



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Borrower and the Revolving Lenders that will be participating in
such Bid Borrowing of such Eurocurrency Rate.



     
(h) Funding of Competitive Revolving Loans. Each
Revolving Lender that has received notice pursuant to foregoing
subsection (f) above that all or a portion of its
Competitive Bid has been accepted by the Borrowers shall make
the amount of its Competitive Revolving Loan(s) available to the
Competitive Bid Agent in Same Day Funds at the Competitive Bid
Agent’s Lending Office (or such other office as provided to
the Revolving Lenders by the Competitive Bid Agent) for the
Applicable Currency not later than 1:00 p.m., in the case of any
Competitive Revolving Loan denominated in Dollars, and not later
than the Applicable Time specified by the Competitive Bid Agent
in the case of any Competitive Revolving Loan in an Alternative
Foreign Currency, in each case on the date of the requested Bid
Borrowing. Upon satisfaction of the applicable conditions set
forth in Section 5.02 and after the Competitive Bid
Agent has received confirmation from the Administrative Agent
that such Competitive Bid complies with the provisions of
Section 2.01(e), the Competitive Bid Agent shall
make all funds so received available to the Borrowers in like
funds as received by the Competitive Bid Agent.



     
(i) Notice of Range of Bids. After each Competitive
Bid auction pursuant to this Section 2.11, the
Competitive Bid Agent shall notify each Revolving Lender that
submitted a Competitive Bid in such auction of the ranges of
bids submitted (without the bidder’s name) and accepted for
each Competitive Revolving Loan and the aggregate amount of each
Bid Borrowing.



     
SECTION 2.12 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base
Rate is determined by Bank of America’s “prime
rate” shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results
in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year) or, in the case of
interest in respect of Loans denominated in Foreign Currencies
as to which market practice differs from the foregoing, in
accordance with such market practice. Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which
the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made shall,
subject to Section 2.14(a), bear interest for one
day.



     
SECTION 2.13 Evidence of Debt.



     
(a) The Credit Extensions made by each Lender shall be
evidenced by one or more accounts or records maintained by such
Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent
manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments
thereon, and shall serve as the basis for determining amounts
due and payable in connection with enforcement of this Credit
Agreement and the Collateral Documents. Any failure to so record
or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of
any conflict between the accounts



76







 




and records maintained by any Lender (including the schedules to
such Lender’s Notes, if any) and the accounts and records
of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control
in the absence of manifest error. The Borrowers shall execute
and deliver to the Administrative Agent a Revolving Note for
each Revolving Lender that so requests, which Notes, in addition
to such accounts or records, shall evidence such Lender’s
Loans. Each Lender may attach schedules to its Notes and endorse
thereon the date, Type (if applicable), amount and maturity of
its Loans and payments with respect thereto.



     
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and
records of any Lender in respect of such matters, the accounts
and records of the Administrative Agent shall control in the
absence of manifest error.



     
SECTION 2.14 Payments Generally.



     
(a) All payments to be made by the Borrowers shall be made
without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder with respect to
principal and interest on Loans denominated in Dollars shall be
made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the
applicable Administrative Agent’s Office in Dollars and in
Same Day Funds not later than 2:00 p.m. on the date specified
herein, and all payments by the Borrowers hereunder with respect
to principal and interest on Loans denominated in Foreign
Currencies shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed,
at the applicable Administrative Agent’s Office in such
Foreign Currency and in Same Day Funds not later than the
Applicable Time specified by the Administrative Agent on the
date specified herein. The Administrative Agent will promptly
distribute to each Lender (i) with respect to such payments
on the Revolving Obligations, its Revolving Commitment
Percentage thereof, and (ii) such other applicable share as
provided herein, in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the
Administrative Agent (A) with respect to payments in
Dollars, after 2:00 p.m. and (B) with respect to payments
in Foreign Currencies, after the Applicable Time specified by
the Administrative Agent, shall in each case be deemed received
on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue; provided that, in the
case of repayment of Borrowings in Swiss francs and Japanese
yen, the Administrative Agent will provide funds in the then
applicable Dollar Equivalent thereof (including an exchange fee
and other normal and customary fees for providing this service
as determined by the Administrative Agent in its sole
discretion) to those Lenders that had funded the Borrowing with
the Dollar Equivalent as provided in Section 2.02(b).



     
(b) Except as otherwise provided in the definition of
“Interest Period,” if any payment to be made by the
Borrowers shall come due on a day other than a Business Day,



77







 




payment shall be made on the next following Business Day, and
such extension of time shall be reflected in computing interest
or fees, as the case may be.



     
(c) If at any time insufficient funds are received by or
are available to the Administrative Agent to pay fully all
amounts of principal, L/ C Borrowings, interest and fees then
due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts
payable under Article III) incurred by the
Administrative Agent and each Lender, (ii) second, toward
repayment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and
(iii) third, toward repayment of principal and L/ C
Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
L/ C Borrowings then due to such parties.



     
(d) Unless the Borrowers or any Lender has notified the
Administrative Agent, prior to the date any payment is required
to be made by it to the Administrative Agent hereunder, that the
Borrowers or such Lender, as the case may be, will not make such
payment, the Administrative Agent may assume that the Borrowers
or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact
made to the Administrative Agent in Same Day Funds, then:






		
	 	     
    (i) if the Borrowers failed to make such payment, each
    Lender shall forthwith on demand repay to the Administrative
    Agent the portion of such assumed payment that was made
    available to such Lender in Same Day Funds, together with
    interest thereon in respect of each day from and including the
    date such amount was made available by the Administrative Agent
    to such Lender to the date such amount is repaid to the
    Administrative Agent in Same Day Funds at the applicable
    Overnight Rate from time to time in effect; and
	 
	 	     
    (ii) (A) if any Lender failed to make such payment,
    such Lender shall forthwith on demand pay to the Administrative
    Agent the amount thereof in Same Day Funds, together with
    interest thereon for the period from the date such amount was
    made available by the Administrative Agent to the Borrowers to
    the date such amount is recovered by the Administrative Agent
    (the “Compensation Period”) at a rate per annum
    equal to the applicable Overnight Rate from time to time in
    effect; and






		
	 	     
    (B) if such Lender pays such amount to the Administrative
    Agent, then such amount shall constitute such Lender’s Loan
    included in the applicable Borrowing. If such Lender does not
    pay such amount upon the Administrative Agent’s demand
    therefor, the Administrative Agent may make a demand therefor
    upon the Borrowers, and the Borrowers shall pay such amount to
    the Administrative Agent, together with interest thereon for the
    Compensation Period at a rate per annum equal to the rate of
    interest applicable to the applicable Borrowing.



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Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights
that the Administrative Agent or the Borrowers may have against
any Lender as a result of any default by such Lender hereunder.




A notice of the Administrative Agent to any Lender or the
Borrowers with respect to any amount owing under this
subsection (d) shall be conclusive, absent manifest error.



     
(e) If any Lender makes available to the Administrative
Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and
such funds are not made available to the Borrowers by the
Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article V are not
satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.



     
(f) The obligations of the Lenders hereunder, including,
without limitation, to make Loans and to fund participations in
Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan, to fund any
such participation or to satisfy any other obligation on any
date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender
to so make its Loan, purchase its participation or satisfy such
other obligation.



     
(g) Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it
has obtained or will obtain the funds for any Loan in any
particular place or manner.



     
SECTION 2.15 Sharing of Payments.



     
If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Loans made by it, or the
participations in L/ C Obligations or in Swing Line Loans held
by it (excluding any amounts applied by the Swing Line Lender to
outstanding Swing Line Loans), any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact, and
(b) purchase from the other Lenders such participations in
the Loans made by them and/or such subparticipations in the
participations in L/ C Obligations or Swing Line Loans held by
them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in
Section 11.06 (including pursuant to any settlement
entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of
(i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount
so recovered, without



79







 




further interest thereon. The Borrowers agree that any Lender so
purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to
Section 11.09) with respect to such participation as
fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. The
Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each
case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant
to this Section shall from and after such purchase have the
right to give all notices, requests, demands, directions and
other communications under this Credit Agreement with respect to
the portion of the loans and obligations hereunder and under the
Term Loan Credit Agreement purchased to the same extent as
though the purchasing Lender were the original owner of the
loans and obligations hereunder and under the Term Loan Credit
Agreement purchased.



     
SECTION 2.16 Designated Borrowers.



     
FMCAG may request that any of its Subsidiaries (each, an
“Applicant Borrower”) be designated a
Designated Borrower by delivery of a written request to the
Administrative Agent, together with an executed copy of the
Borrower Joinder Agreement, including the Designated Borrowing
Limit requested for such Applicant Borrower and, if applicable,
requesting that the Applicant Borrower be a Primary Borrower
hereunder. The Designated Borrowing Limit for any Applicant
Borrower that becomes a Primary Borrower (including the
Co-Borrowers) shall be the same as the Designated Borrowing
Limit in effect for FMCH. The Administrative Agent will promptly
notify the Lenders of any such request and will provide the
Lenders with a copy of such Borrower Joinder Agreement.
Designation of any Applicant Borrower as a Designated Borrower
and approval of its Designated Borrowing Limit is subject to
(i) the prior consent of the Required Revolving Lenders in
their sole discretion; provided that (A) no consent
shall be required for any Wholly Owned Subsidiary of FMCAG
organized in an Approved Jurisdiction to become a Primary
Borrower or a Co-Borrower and (B) a Borrower for Mexican
pesos may be established with the consent of the Administrative
Agent and the Foreign Swing Line Lender in respect thereof;
(ii) delivery of each executed promissory note as may be
requested by any Revolving Lender in connection therewith; and
(iii) delivery of supporting resolutions, articles of
incorporation and bylaws (or their equivalents), incumbency
certificates, opinions of counsel and such other items as the
Administrative Agent and the Required Revolving Lenders may
request. The designation of an Applicant Borrower as a
Designated Borrower shall be effective ten Business Days after
(1) where applicable, receipt by the Administrative Agent
of the consent of the Required Revolving Lenders and
(2) receipt by the Administrative Agent of each of the
items required pursuant to clauses (ii) and (iii)
herein. Such Designated Borrower shall thereupon become a
Designated Borrower and a Credit Party hereunder and shall be
(1) entitled to all rights and benefits of a Designated
Borrower hereunder and under each of the Credit Documents and
(2) subject to all obligations of a Designated Borrower
hereunder and under the Credit Documents.



     
SECTION 2.17 Removal of Borrowers. FMCAG may
request that any Borrower (other than FMCAG and FMCH) cease to
be a Borrower by delivering to the Administrative Agent (which
shall promptly deliver copies thereof to each Lender) a written
notice to such effect. If



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such Borrower is a Primary Borrower (including the
Co-Borrowers), it shall cease to be a Borrower on the date the
Administrative Agent receives such written notice. If such
Borrower is a Designated Borrower (unless it is a Co-Borrower),
it shall cease to be a Borrower on the later to occur of
(i) the date the Administrative Agent receives such written
notice, and (ii) the date such Designated Borrower has paid
all of its obligations (including payment of cash collateral in
respect of any L/ C Obligations outstanding for its benefit) and
all accrued and unpaid interest, fees and other obligations
hereunder or in connection herewith.




ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY



     
SECTION 3.01 Taxes.



     
(a) Except as provided below, any and all payments by the
Borrowers to or for the account of the Administrative Agent or
any Lender under any Credit Document shall be made free and
clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Administrative
Agent and each Lender and any of their respective Affiliates,
taxes imposed on or measured by overall net income, and any
franchise taxes, branch taxes, taxes on doing business or taxes
on overall capital or net worth imposed (in lieu of net income
taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which the Administrative Agent, such
Lender or any of their respective Affiliates, as the case may
be, is organized or maintains a lending office or in which its
principal executive office is located (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being
hereinafter referred to as “Taxes”). If the
Borrowers shall be required by any Laws to deduct any Taxes from
or in respect of any sum payable under any Credit Document to
the Administrative Agent or any Lender, except as otherwise
provided in Section 11.15 hereof, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made,
(ii) the Borrowers shall make such deductions,
(iii) the Borrowers shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance
with applicable Laws, and (iv) within thirty days after the
date of such payment, the Borrowers shall furnish to the
Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing
payment thereof.



     
(b) In addition, the Borrowers agree to pay any and all
present or future stamp, court or documentary taxes and any
other excise or property taxes or charges or similar levies that
arise from any payment made under any Credit Document or from
the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Credit
Document (hereinafter referred to as “Other
Taxes”).



81







 



     
(c) If the Borrowers shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under
any Credit Document to the Administrative Agent or any Lender,
the Borrowers shall also pay to the Administrative Agent or to
such Lender, as the case may be, at the time interest is paid,
such additional amount that the Administrative Agent or such
Lender specifies is necessary to preserve the after-tax yield
(after factoring in all taxes, including taxes imposed on or
measured by net income) that the Administrative Agent or such
Lender would have received if such Taxes or Other Taxes had not
been imposed.



     
(d) The Borrowers agree to indemnify the Administrative
Agent and each Lender for (i) the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this
Section) paid by the Administrative Agent and such Lender, and
(ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant
Governmental Authority. Payment under this
subsection (d) shall be made within thirty days
after the date the Lender or the Administrative Agent makes a
demand therefor.



     
SECTION 3.02 Illegality. If any Lender
determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans (whether denominated in Dollars or
a Foreign Currency), or to determine or charge interest rates
based upon the Eurocurrency Rate, or any Governmental Authority
has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, any
Applicable Currency in the applicable interbank market, then, on
notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or
continue Eurocurrency Rate Loans in the Applicable Currency or
to convert Base Rate Loans to Eurocurrency Rate Loans in the
Applicable Currency shall be suspended until such Lender
notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, the Borrowers shall, upon demand
from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurocurrency Rate Loans of
such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to
maintain such Eurocurrency Rate Loans. Upon any such prepayment
or conversion, the Borrowers shall also pay accrued interest on
the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous
to such Lender.



     
SECTION 3.03 Inability to Determine Rates. If
the Administrative Agent (in consultation with the Lenders)
determines that for any reason (i) deposits in the
Applicable Currency are not being offered to banks in the
applicable offshore interbank market for such currency for the
applicable amount and Interest Period thereof,
(ii) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for such Loan or
(iii) the Eurocurrency Rate for such Loan does not
adequately and fairly reflect the cost to such Lenders of
funding such Loan, then the Administrative Agent will promptly
so notify FMCAG and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurocurrency Rate Loans shall be
suspended until



82







 




the Administrative Agent (in consultation with the Lenders)
revokes such notice. Upon receipt of such notice, the Borrowers
may revoke any pending request for a Borrowing of, conversion to
or continuation of Eurocurrency Rate Loans or, failing that,
will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.



     
SECTION 3.04 Increased Cost and Reduced Return;
Capital Adequacy; Reserves on Eurocurrency Loans.



     
(a) If any Lender determines that as a result of the
introduction of or any change in or in the interpretation of any
Law in each case after the Closing Date, or such Lender’s
compliance therewith, there shall be any increase in the cost to
such Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Loans or (as the case may be)
issuing or participating in Letters of Credit, or a reduction in
the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this
subsection (a) any such increased costs or reduction
in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which
such Lender is organized or has its Lending Office, and
(iii) reserve requirements contemplated by
Section 3.04(c) below), then from time to time upon
demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrowers shall pay to such Lender
such additional amounts as will compensate such Lender for such
increased cost or reduction.



     
(b) If any Lender determines that the introduction of any
Law regarding capital adequacy or any change therein or in the
interpretation thereof in each case after the Closing Date, or
compliance by such Lender (or its Lending Office) therewith, has
the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a
consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy
and such Lender’s desired return on capital), then from
time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Borrowers shall pay to
such Lender such additional amounts as will compensate such
Lender for such reduction.



     
(c) The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal
amount of each Eurocurrency Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender pursuant
to regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
or the Mandatory Cost Rate imposed by the Bank of England or the
Financial Services Authority of the United Kingdom (as
determined by such Lender in good faith, which determination
shall be conclusive absent manifest error), which shall be due
and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least
fifteen days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice fifteen days



83







 




prior to the relevant Interest Payment Date, such additional
interest shall be due and payable fifteen days from receipt of
such notice.



     
(d) Each Lender and L/ C Issuer agrees that, as promptly as
practicable after the officer of such Lender or L/ C Issuer
responsible for administering the Loans or Letters of Credit of
such Lender or L/ C Issuer, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that
would entitle such Lender or L/ C Issuer to receive payments
under Section 3.04(a), (b) or (c), it
will, to the extent not inconsistent with the internal policies
of such Lender or L/ C Issuer and any applicable legal or
regulatory restrictions, use reasonable efforts (i) to
make, issue, fund or maintain the Commitments of such Lender or
the affected Loans or Letters of Credit of such Lender or L/ C
Issuer through another lending or letter of credit office of
such Lender or L/ C Issuer, or (ii) take such other
measures as such Lender or L/ C Issuer may deem reasonable, if
as a result thereof the additional amounts which would otherwise
be required to be paid to such Lender or L/ C Issuer pursuant to
Section 3.04(a), (b) or (c) would be
materially reduced and if, as determined by such Lender or L/ C
Issuer in its sole discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit
through such other lending or letter of credit office or in
accordance with such other measures, as the case may be, would
not otherwise materially adversely affect such Commitments or
Loans or Letters of Credit or would not be otherwise
disadvantageous to the interests of such Lender or L/ C Issuer,
provided that such Lender or L/ C Issuer will not be
obligated to utilize such other lending or letter of credit
office pursuant to this Section 3.04(d) unless the
Borrowers agree to pay all incremental expenses incurred by such
Lender or L/ C Issuer as a result of utilizing such other
lending or letter of credit office as described in clause
(i) above. A certificate as to the amount of any such
expenses payable by the Borrowers pursuant to this
Section 3.04(d) (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender
or L/ C Issuer to the Borrowers (with a copy to the
Administrative Agent) shall be conclusive absent manifest error.



     
SECTION 3.05 Funding Losses.



     
Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrowers shall promptly
compensate such Lender for and hold such Lender harmless from
any loss, cost or expense incurred by it as a result of:






		
	 	     
    (a) any continuation, conversion, payment or prepayment of
    any Loan other than a Base Rate Loan on a day other than the
    last day of the Interest Period for such Loan (whether
    voluntary, mandatory, automatic, by reason of acceleration, or
    otherwise);
	 
	 	     
    (b) any failure by the Borrowers (for a reason other than
    the failure of such Lender to make a Loan) to prepay, borrow,
    continue or convert any Loan other than a Base Rate Loan on the
    date or in the amount notified by the Borrowers; or
	 
	 	     
    (c) any assignment of any Loan other than a Base Rate Loan
    on a day other than the last day of the Interest Period therefor
    as a result of a request by the Borrowers pursuant to
    Section 11.16; including any loss or expense arising
    from the liquidation or reemployment of funds (excluding loss of
    profit or margin) obtained by it to maintain



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    such Loan or from fees payable to terminate the deposits from
    which such funds were obtained.



     
For purposes of calculating amounts payable by the Borrowers to
the Lenders under this Section 3.05, each Lender
shall be deemed to have funded each Eurocurrency Rate Loan made
by it at the Eurocurrency Rate for such Loan by a matching
deposit or other borrowing in the applicable offshore interbank
market for such currency for a comparable amount and for a
comparable period, whether or not such Eurocurrency Rate Loan
was in fact so funded.



     
SECTION 3.06 Matters Applicable to all Requests for
Compensation.



     
(a) If any Lender requests compensation under
Section 3.04 or any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to
Section 3.01, or if any Lender gives notice pursuant
to Section 3.02, then such Lender shall use
reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case
may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender; provided, that the
booking or funding of the Loan through such Lending Office is
not disadvantageous to the Borrowers. The Borrowers hereby agree
to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.



     
(b) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting
forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error.
In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.



     
(c) Upon any Lender’s making a claim for compensation
under Section 3.01 or 3.04, the Borrowers may
replace such Lender in accordance with Section 11.16.



     
SECTION 3.07 Survival.



     
All of the Borrowers’ obligations under this
Article III shall survive termination of the Aggregate
Commitments and repayment of all other Obligations hereunder.



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ARTICLE IV




GUARANTY



     
SECTION 4.01 The Guaranty.



     
(a) Each of the Guarantors hereby jointly and severally
guarantees to the Administrative Agent and each of the holders
of the Obligations as hereinafter provided, as primary obligor
and not as surety, the prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The
Guarantors hereby further agree that if any of the Obligations
are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time
of payment or renewal of any of the Obligations, the same will
be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of
such extension or renewal.



     
(b) Notwithstanding any provision to the contrary contained
herein or in any other of the Credit Documents or other
agreements or documents relating to the Obligations, the
obligations of each Guarantor under this Credit Agreement and
the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or
any comparable provisions of any applicable state law.



     
(c) With respect to the liability of any entity existing
under the laws of Germany (including, without limitation, a
corporation (AG), a limited liability company
(GmbH) or limited partnership (such as a KGaA or
GmbH & Co. KG)) (a “German
Guarantor”) in respect of the guaranty set forth in
this Article IV (each a “German
Guaranty”), to the extent it secures the Indebtedness
of FMCAG or any of its Subsidiaries (other than such German
Guarantor and its Subsidiaries), the following shall apply:






		
	 	     
    (i) Nothing herein shall lead to an obligation of such
    German Guarantor to make a payment and the Collateral Agent and
    the Administrative Agent agree not to enforce such German
    Guaranty to the extent that a subsequent application of the
    proceeds (the “Proceeds”) would have the effect
    of (i) reducing such German Guarantor’s net assets
    (Nettovermögen) (the “Net Assets”)
    to an amount less than its stated share capital
    (Stammkapital) or (ii) (if the Net Assets are
    already an amount less than the stated share capital) causing
    such amount to be further reduced, and thereby affects the
    assets required for the obligatory preservation of its stated
    share capital according to §§ 30, 31 of the German
    GmbH-Act (GmbH-Gesetz).
	 
	 	     
    (ii) The value of the Net Assets shall be determined by
    means of a balance sheet prepared in accordance with the
    principles for ordinary bookkeeping and the preparation of
    balance sheets as they were consistently applied by such German



86







 






		
	 	
    Guarantor in preparing its unconsolidated balance sheets
    (Jahresabschluss gem. § 42 GmbH-Act,
    §§ 242, 264 HGB) in the previous years, save
    that:






		
	 	     
    (A) any amounts due and payable under such German Guaranty,
    which correspond to funds that have been borrowed under this
    Credit Agreement or the Term Loan Credit Agreement and have been
    on-lent to such German Guarantor or any of its subsidiaries,
    shall be disregarded to the extent that any such amount is still
    outstanding; and
	 
	 	     
    (B) any asset that is shown in the balance sheet with a
    book value (Buchwert) that is significantly lower than
    the market value of such asset, which is not essentially
    necessary (betriebsnotwendig) for the German
    Guarantor’s business and that can be realized (to the
    extent legally possible) shall be taken into account with its
    market value.






		
	 	     
    (iii) The balance sheet shall be prepared by such German
    Guarantor within thirty days after the date of a payment request
    by the Collateral Agent or the Administrative Agent under such
    German Guaranty. If (A) the balance sheet has not become
    available within the given period of time or does not comply as
    to form and content to generally accepted accounting principles
    applying in Germany for companies of the size of such German
    Guarantor, or (B) in case of cessation of payments by such
    German Guarantor or (C) the filing of an application for
    insolvency proceeding by such German Guarantor (in case of
    (B) and (C) irrespective of whether or not thirty days
    have lapsed), the Collateral Agent or the Administrative Agent
    (I) shall be entitled to enforce such German Guaranty in
    the full amount and (II) agrees to repay the Proceeds to
    such German Guarantor to the extent that such German Guarantor
    is able to demonstrate that the enforcement of the such German
    Guaranty violated the rules on preservation of the stated share
    capital under §§ 30, 31 GmbH-Act as set out in
    paragraph (i) above.
	 
	 	     
    (iv) The limitation set out in clauses (i)
    through (iii) above shall not apply while a loss and
    profit pooling agreement (Gewinnabführungsvertrag)
    exists between such German Guarantor and FMCAG (such as, with
    respect to FMCD, the loss and profit pooling agreement dated 23
    August 1996), and the compensation claim of such German
    Guarantor against FMCAG arising under any such loss and profit
    pooling agreement compensates for any loss incurred due to any
    payment of such German Guarantor under such German Guaranty.
	 
	 	     
    (v) FMCAG undertakes neither to increase the stated share
    capital (Stammkapital) of such German Guarantor by way of
    a capital increase (Kapitalerhöhung) nor to grant
    any shareholder loans to such German Guarantor (except as
    otherwise permitted hereunder and except for those loans which
    are funds under this Credit Agreement or the Term Loan Credit
    Agreement lent-on to such German Guarantor) without the prior
    written consent of the Administrative Agent and the Collateral
    Agent. FMCAG undertakes to pay any such funds into the capital
    reserves (Kapitalrücklage, § 266
    paragraph 3 A.II.HGB) of such German Guarantor.



87







 






		
	 	     
    (vi) To the extent that (A) any party that is liable
    for a reimbursement to such German Guarantor is unable to
    satisfy any recourse claim that such German Guarantor may have
    against such party due to the enforcement of claims under any of
    the Credit Documents or such German Guaranty and (B) this
    may trigger the insolvency of such German Guarantor, neither the
    Administrative Agent nor the Collateral Agent may enforce the
    German Guaranty.



     
(d) The liability of any entity incorporated under the laws
of the Grand Duchy of Luxembourg (a “Luxembourg
Guarantor”) for obligations of any entity of which such
Luxembourg Guarantor is a Subsidiary and/or for obligations of
any of such Luxembourg Guarantor’s Affiliates (other than
its own Subsidiaries) in respect of the guaranty set forth in
this Article IV shall be limited at any time to an
aggregate amount not exceeding ninety-five percent (95%) of the
greater of such Luxembourg Guarantor’s own funds
(capitaux propres) as determined by Article 213 and
following of the Luxembourg Law of 10 August 1915 on Commercial
Companies, as amended, (i) as set forth in its most
recently approved financial statements or (ii) existing as
of the Closing Date.



     
(e) Notwithstanding anything to the contrary set forth
herein, with respect to FMC Trust Finance S.à r.l.
Luxembourg and FMC Trust Finance S.à r.l.
Luxembourg-III, the guaranty set forth in this
Article IV in respect of Obligations under Swap
Contracts shall be limited to the extent that such guaranty is
permitted under the Trust Preferred Indentures.



     
(f) The liability of any entity incorporated under the laws
of Spain in respect of the guaranty set forth in this
Article IV shall be limited at any time to the
largest amount that would not render such Guarantor insolvent.



     
SECTION 4.02 Obligations Unconditional.



     
The obligations of the Guarantors under Section 4.01
are joint and several, absolute and unconditional, irrespective
of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or other documents
relating to the Obligations, or any other agreement or
instrument referred to therein, or any substitution, release,
impairment or exchange of any other guarantee of or security for
any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the
intent of this Section 4.02 that the obligations of
the Guarantors shall be absolute and unconditional under any and
all circumstances. Each Guarantor agrees that such Guarantor
shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrowers or any other Guarantor for
amounts paid under this Article IV until such time
as the Obligations have been irrevocably paid in full and the
Commitment have expired or terminated. Without limiting the
generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of
the following shall not alter or impair the liability of any
Guarantor, which shall remain absolute and unconditional as
described above:



88







 






		
	 	     
    (a) at any time or from time to time, without notice to any
    Guarantor, the time for any performance of or compliance with
    any of the Obligations shall be extended, or such performance or
    compliance shall be waived;
	 
	 	     
    (b) any of the acts mentioned in any of the provisions of
    any of the Credit Documents, or other documents relating to the
    Obligations, or any other agreement or instrument referred to in
    the Credit Documents or such Swap Contracts shall be done or
    omitted;
	 
	 	     
    (c) the maturity of any of the Obligations shall be
    accelerated, or any of the Obligations shall be modified,
    supplemented or amended in any respect, or any right under any
    of the Credit Documents, or other documents relating to the
    Obligations, or any other agreement or instrument referred to in
    the Credit Documents or such Swap Contracts shall be waived or
    any other guarantee of any of the Obligations or any security
    therefor shall be released, impaired or exchanged in whole or in
    part or otherwise dealt with;
	 
	 	     
    (d) any Lien granted to, or in favor of, the Administrative
    Agent or any Lender or Lenders as security for any of the
    Obligations shall fail to attach or be perfected; or
	 
	 	     
    (e) any of the Obligations shall be determined to be void
    or voidable (including, without limitation, for the benefit of
    any creditor of any Guarantor) or shall be subordinated to the
    claims of any Person (including, without limitation, any
    creditor of any Guarantor).



     
With respect to its Obligations, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or
remedy or proceed against any Person under any of the Credit
Documents, or other documents relating to the Obligations, or
any other agreement or instrument referred to in the Credit
Documents or such Swap Contracts, or against any other Person
under any other guarantee of, or security for, any of the
Obligations.



     
SECTION 4.03 Reinstatement.



     
The obligations of the Guarantors under this
Article IV shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of
any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations,
whether as a result of any proceedings pursuant to any Debtor
Relief Laws or otherwise, and each Guarantor agrees that it will
indemnify the Administrative Agent and each Lender on demand for
all reasonable costs and expenses (including fees and expenses
of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any Debtor Relief Law.



89







 



     
SECTION 4.04 Certain Waivers.



     
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Obligations, except through the
exercise of rights of subrogation pursuant to
Section 4.02 and through the exercise of rights of
contribution pursuant to Section 4.06. Each
Guarantor further expressly waives any right to require that any
action be brought against the Borrowers or any other Credit
Party or to require recourse to security.



     
SECTION 4.05 Remedies.



     
The Guarantors agree that, to the fullest extent permitted by
law, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the
Obligations may be declared to be forthwith due and payable as
provided in Section 9.02 (and shall be deemed to
have become automatically due and payable in the circumstances
provided in said Section 9.02) for purposes of
Section 4.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not
due and payable by any other Person) shall forthwith become due
and payable by the Guarantors for purposes of
Section 4.01.



     
SECTION 4.06 Rights of Contribution.



     
The Guarantors hereby agree as among themselves that, if any
Guarantor shall make an Excess Payment (as defined below), such
Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor’s
Contribution Share (as defined below) of such Excess Payment.
The payment obligations of any Guarantor under this
Section 4.06 shall be subordinate and subject in
right of payment to the Obligations until such time as the
Obligations have been paid in full and the Commitments have
expired or terminated, and none of the Guarantors shall exercise
any right or remedy under this Section 4.06 against
any other Guarantor until such Obligations have been paid in
full and the Commitments have expired or terminated. For
purposes of this Section 4.06, (a) “Excess
Payment” shall mean the amount paid by any Guarantor in
excess of its Ratable Share of any Guaranteed Obligations; (b)
“Ratable Share” shall mean, for any Guarantor in
respect of any payment of Obligations, the ratio (expressed as a
percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other
properties of all of the Credit Parties exceeds the amount of
all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Credit Parties hereunder) of
the Credit Parties; provided, however, that, for purposes
of calculating the Ratable Shares of the Guarantors in respect
of any payment of Obligations, any Guarantor that became a
Guarantor subsequent to the date of any such payment shall be
deemed to have been a Guarantor on the date of such payment and
the



90







 




financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such
Guarantor in connection with such payment; (c)
“Contribution Share” shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, the
ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present
fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate
present fair salable value of all assets and other properties of
the Credit Parties other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such
Excess Payment; provided, however, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect
of any Excess Payment, any Guarantor that became a Guarantor
subsequent to the date of any such Excess Payment shall be
deemed to have been a Guarantor on the date of such Excess
Payment and the financial information for such Guarantor as of
the date such Guarantor became a Guarantor shall be utilized for
such Guarantor in connection with such Excess Payment; and (d)
“Guaranteed Obligations” shall mean the Obligations
guaranteed by the Guarantors pursuant to this
Article IV. This Section 4.06 shall not
be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under
Law against the Borrowers in respect of any payment of
Guaranteed Obligations. Notwithstanding the foregoing, all
rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor is
relieved of its obligations in accordance with
Section 10.11.



     
SECTION 4.07 Guaranty of Payment; Continuing
Guaranty.



     
The guarantee in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and
shall apply to all Obligations whenever arising.




ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS



     
SECTION 5.01 Conditions of Initial Credit
Extensions.



     
The obligation of each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following
conditions precedent:






		
	 	     
    (a) Executed Credit Documents. Receipt by the
    Administrative Agent of (i) multiple counterparts of this
    Credit Agreement and the Term Loan Credit Agreement,
    (ii) executed Notes for those Lenders requesting them,
    (iii) multiple counterparts of the Pledge Agreements, the
    Parallel Debt Agreement and any other Collateral Documents, in
    each case properly executed by a Responsible Officer or duly
    authorized signatory.
	 
	 	     
    (b) RCG Material Adverse Effect. There shall not
    have occurred a RCG Material Adverse Effect since the date of
    the RCG Merger Agreement.



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    (c) Acquisition Approvals and Documents. Receipt by
    the Administrative Agent of the following:






		
	 	     
    (i) Acquisition Agreement and Related Confirmations.
    An officer’s certificate in form and substance reasonably
    satisfactory to the Administrative Agent, with (A) a
    certified copy of the RCG Merger Agreement with all amendments,
    modifications, supplements and attachments,
    (B) confirmation that there have been no material
    modifications to the RCG Merger Agreement, except as approved by
    the Arrangers, (C) confirmation that the RCG Acquisition
    has been, or contemporaneously with the closing and initial
    funding under this Credit Agreement, will be consummated in
    accordance with the terms of the RCG Merger Agreement and in
    compliance with applicable laws and regulatory approvals, and
    (D) confirmation that there will be at least $200 million
    of unused availability under the Revolving Commitments after
    consummation of the RCG Acquisition and the transactions
    relating thereto, the initial Credit Extensions hereunder and
    payment in full of the fees and expenses relating to the RCG
    Acquisition and the establishment of the credit facilities
    hereunder.
	 
	 	     
    (ii) Required Consents. Evidence of receipt of all
    governmental, shareholder and third party consents (including
    Hart-Scott-Rodino clearance) and approvals necessary or, in the
    reasonable opinion of the Administrative Agent, desirable in
    connection with the RCG Acquisition and the related financings
    and other transactions contemplated in connection therewith and
    expiration of all applicable waiting periods without any action
    being taken by any authority that could restrain, prevent or
    impose any material adverse conditions on the Borrowers or their
    subsidiaries or such other transactions or that could seek or
    threaten any of the foregoing, and no law or regulation shall be
    applicable which in the reasonable judgment of the
    Administrative Agent could have such effect.
	 
	 	     
    (iii) Debt Rating. Evidence of a Debt Rating for the
    credit facilities established under this Credit Agreement from
    each of S&P and Moody’s after giving effect to the RCG
    Acquisition, and confirmation that such Debt Ratings remain in
    effect on the Closing Date.
	 
	 	     
    (iv) RCG Sub Debt. Either prior to (or substantially
    simultaneously with) the initial Credit Extension, evidence that
    the RCG Sub Debt shall have been (A) redeemed, defeased,
    purchased, repurchased or otherwise acquired by RCG or the
    Borrowers or their Subsidiaries or the obligations thereunder
    shall otherwise have been discharged, (B) RCG or the
    Borrowers or their Subsidiaries shall have offered to purchase
    up to one hundred percent (100%) of the RCG Sub Debt and sought
    consent from the holders of the RCG Sub Debt to effect certain
    amendments to the related indenture, and consent to such
    amendments shall have been obtained and the notes of any
    tendering note holders shall have been purchased or
    (C) Bank of America and DBNY shall have agreed to permit
    some



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    or all of the RCG Sub Debt to remain outstanding on terms
    satisfactory to them (other than those described in the
    foregoing clause (B)).






		
	 	     
    (d) Financial Information. Receipt by the
    Administrative Agent of the following:






		
	 	     
    (i) FMCAG. For FMCAG and its subsidiaries on a
    consolidated basis, (A) unaudited company-prepared
    financial statements, including a balance sheet, income
    statement, and statement of cash flows (excluding notes) within
    45 days after the end of each fiscal quarter (other than
    the last fiscal quarter of the fiscal year) ending after
    December 31, 2004 and before 45 days prior to the
    Closing Date, and (B) audited financial statements,
    including balance sheet, income statement and statement of cash
    flows (excluding notes) within 70 days after the end of the
    fiscal year ending after December 31, 2004 and before
    70 days prior to the Closing Date.
	 
	 	     
    (ii) RCG. For RCG and its subsidiaries on a
    consolidated basis, (A) unaudited company-prepared
    financial statements, including a balance sheet, income
    statement, and statement of cash flows (excluding notes) within
    45 days after the end of each fiscal quarter (other than
    the last fiscal quarter of the fiscal year) ending after
    December 31, 2004 and before 45 days prior to the
    Closing Date, and (B) audited financial statements,
    including balance sheet, income statement and statement of cash
    flows (excluding notes) within 70 days after the end of the
    fiscal year ending after December 31, 2004 and before
    70 days prior to the Closing Date.




It is hereby acknowledged that the financial statements required
to be delivered pursuant to Section 5.01(d)(i), in
respect of the second fiscal quarter of any year, shall include
information pertaining to the first 6 months of the fiscal
year and, in respect of the third fiscal quarter of any year,
shall include information pertaining to the first 9 months
of the fiscal year.






		
	 	     
    (e) Collateral. Receipt by the Collateral Agent of
    the following:






		
	 	     
    (i) UCC Financing Statements. UCC financing
    statements for each jurisdiction as necessary or appropriate, in
    the Collateral Agent’s discretion, to perfect the security
    interest in the Collateral granted under the Pledge Agreements.
	 
	 	     
    (ii) Certificated Interests. Where required for
    perfection under applicable Law, original certificates
    evidencing the Capital Stock pledged pursuant to the Collateral
    Documents (to the extent such Capital Stock is certificated),
    together with undated stock transfer powers executed in blank.






		
	 	     
    (f) Corporate Documents. Receipt by the
    Administrative Agent of a certificate of a Responsible Officer
    or duly authorized signatory of each Credit Party



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    attaching each of the following documents and certifying that
    each is true and correct and complete and in full force and
    effect as of the Closing Date:






		
	 	     
    (i) Charter Documents. Copies of its certificate of
    organization or equivalent, certified to be true and correct as
    of a recent date by the appropriate Governmental Authority of
    the state or other jurisdiction of its organization.
	 
	 	     
    (ii) Bylaws. Copies of its bylaws, operating
    agreement or partnership agreement or the equivalent.
	 
	 	     
    (iii) Resolutions. Copies of its resolutions
    approving and adopting the Credit Documents to which it is a
    party, the transactions contemplated herein and therein, and
    authorizing the execution and delivery thereof.
	 
	 	     
    (iv) Incumbency. Original incumbency certificates
    identifying the officers thereof authorized to act on its behalf
    in connection with the Credit Documents.
	 
	 	     
    (v) Good Standing. Certificates of good standing or
    the equivalent (if available from the applicable jurisdiction),
    certified as of a recent date by the appropriate Governmental
    Authorities from the state or other jurisdiction of its
    organization, and such other states or jurisdictions as the
    Administrative Agent may reasonably request.






		
	 	     
    (g) Legal Opinions. Receipt by the Administrative
    Agent of favorable legal opinions from counsel to FMCAG, FMCH
    and other members of the Consolidated Group in form and
    substance reasonably satisfactory to the Administrative Agent
    regarding, among other things, existence and due authorization,
    execution, delivery and enforceability of the Credit Documents,
    no violations of Organizational Documents, certain material
    agreements or applicable Law caused by the execution, delivery
    and performance of the Credit Documents, and the attachment and
    perfection of security interests in the Collateral pledged to
    secure the loans and obligations hereunder (including local
    counsel opinions).
	 
	 	     
    (h) Replacement of the Existing Credit Agreement.
    Evidence of repayment of the loans and obligations owing by
    (i) FMCAG, FMCH and the other Borrowers and Guarantors
    under the Existing Credit Agreement, and (ii) by RCG and
    its subsidiaries and affiliates under its existing senior bank
    debt credit agreement, and, in each case, termination of the
    commitments thereunder and release of the security interests
    relating thereto.



     
SECTION 5.02 Conditions to all Credit
Extensions.



     
The obligation of each Lender to honor any Request for Credit
Extension (including requests for conversions or continuations)
is subject to the following conditions precedent:



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    (a) The representations and warranties contained in
    Article VI or any other Credit Document, or that are
    contained in any document furnished at any time under or in
    connection herewith or therewith, shall be true and correct in
    all material respects on and as of the date of such Credit
    Extension, except (i) to the extent that such
    representations and warranties specifically refer to an earlier
    date, in which case they shall be true and correct in all
    material respects as of such earlier date, (ii) in the case
    of the initial Credit Extension hereunder, but only in such
    case, the representation in Section 6.06 shall not apply
    and (iii) that for purposes of this Section 5.02,
    the representations and warranties contained in subsections
    (a) and (b) of Section 6.05 shall be
    deemed to refer to the most recent statements furnished pursuant
    to subsections (a) and (b), respectively, of
    Section 7.01.
	 
	 	     
    (b) No Default or Event of Default shall exist, or would
    result from such proposed Credit Extension.
	 
	 	     
    (c) The Administrative Agent and, if applicable, the L/ C
    Issuer or the Swing Line Lender shall have received a Request
    for Credit Extension in accordance with the requirements hereof.




Each Borrowing pursuant to any Request for Credit Extension
(including requests for conversions or continuations) submitted
by the Borrowers shall be deemed to be a representation and
warranty by such Borrowers that the conditions specified in
Section 5.02(a) and (b) have been satisfied
on and as of the date of the applicable Credit Extension.




ARTICLE VI




REPRESENTATIONS AND WARRANTIES



     
The Credit Parties represent and warrant to the Administrative
Agent and the Lenders that:



     
SECTION 6.01 Existence, Qualification and Power;
Compliance with Laws. Each Credit Party (a) is a
corporation, partnership, limited liability company or other
entity duly organized or formed, validly existing and in good
standing (to the extent such concept exists in the applicable
jurisdiction and except to the extent that the failure to be in
good standing could not reasonably be expected to have a
Material Adverse Effect) under the Laws of the jurisdiction of
its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver
and perform its obligations under the Credit Documents to which
it is a party, (c) is duly qualified and is licensed and in
good standing (to the extent such concept exists in the
applicable jurisdiction) under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license,
(d) is in compliance with all Laws and (e) has, to the
extent applicable: (i) entered into and maintains in good
standing its Medicare Provider Agreements and Medicaid Provider
Agreements and (ii) ensured that all such required licenses
are in full force and effect



95







 




on the date hereof and have not been revoked or suspended or
otherwise limited; except in the case of clauses (b)(i),
(b)(ii), (c), (d) and (e), to the
extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.



     
SECTION 6.02 Authorization; No Contravention. The
execution, delivery and performance by each Credit Party of each
Credit Document to which such Person is party, have been duly
authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such
Person’s Organization Documents; (b) materially
conflict with or result in any material breach or contravention
of, or the creation of any Lien under, (i) any material
Contractual Obligation to which such Person is a party or
(ii) any material order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such
Person or its property is subject; (c) violate any Law; or
(d) except to the extent it would not have a Material
Adverse Effect, result in a limitation on any licenses, permits,
certificates or determinations of need or other approvals
applicable to the business, operations or properties of any
Credit Party or adversely affect the ability of any Credit Party
to participate in any Medical Reimbursement Programs.



     
SECTION 6.03 Governmental Authorization; Other
Consents. No approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or
enforcement against, any Credit Party of this Credit Agreement
or any other Credit Document.



     
SECTION 6.04 Binding Effect. This Credit Agreement
and each other Credit Document has been duly executed and
delivered by each Credit Party that is party thereto. This
Credit Agreement and the other Credit Documents constitute
legal, valid and binding obligations of such Credit Party,
enforceable against such Credit Party in accordance with its
terms, except to the extent that the enforceability thereof may
be limited by applicable Debtor Relief Laws affecting
creditors’ rights generally and by equitable principles of
law (regardless of whether enforcement is sought in equity or at
law).



     
SECTION 6.05 Financial Statements. The audited
consolidated balance sheets of the Consolidated Group for the
fiscal year ended December 31, 2005, and the related
consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year,
including the notes thereto (A) were prepared in accordance
with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
(B) fairly present the financial condition of the
Consolidated Group as of the date thereof and their results of
operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and
(C) reflect all material indebtedness and other material
liabilities, direct or contingent, as of the date thereof,
including liabilities for taxes, material commitments and
Indebtedness of the Consolidated Group.



     
SECTION 6.06 No Material Adverse Effect. Since
December 31, 2005, there has been no event or circumstance,
either individually or in the aggregate, that has had or would
reasonably be expected to have a Material Adverse Effect.



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SECTION 6.07 Litigation. There are no actions,
suits, investigations, criminal prosecutions, civil
investigative demands, imposition of criminal or civil fines or
penalties, proceedings, claims or disputes pending or, to the
knowledge of the Borrowers after due and diligent investigation,
threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against any member of the
Consolidated Group or against any of their respective properties
or revenues that (a) purport to affect or pertain to this
Credit Agreement or any other Credit Document, or any of the
transactions contemplated hereby, or (b) if determined
adversely, would reasonably be expected to have a Material
Adverse Effect.



     
SECTION 6.08 No Default. No member of the
Consolidated Group is in default under or with respect to any
Contractual Obligation that would reasonably be expected to have
a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing or would result from the consummation
of the transactions contemplated by this Credit Agreement or any
other Credit Document.



     
SECTION 6.09 Ownership of Property; Liens. Each
member of the Consolidated Group has good record and marketable
title to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or
in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Consolidated Group is
subject to no Liens, other than Liens permitted by
Section 8.02.



     
SECTION 6.10 Environmental Compliance. No member of
the Consolidated Group has any liability or responsibility under
any claim in respect of the violation of any Environmental Laws,
except for such claims that would not reasonably be expected to
have a Material Adverse Effect.



     
SECTION 6.11 Insurance. The properties of the
Consolidated Group are insured pursuant to self-insurance
arrangements or with financially sound and reputable insurance
companies that are not Affiliates of the Borrowers, in each case
in such kinds, types, amounts and with such deductibles and
self-insurance retentions as are in accordance with sound
business practice.



     
SECTION 6.12 Taxes. Each member of the Consolidated
Group has filed all material federal, state and other tax
returns and reports required to be filed, and have paid all
taxes shown thereon to be due and has paid all other material
taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties, income or assets
otherwise due and payable, except those that are being contested
in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against the
Borrowers or any Subsidiary that would, if made, have a Material
Adverse Effect.



     
SECTION 6.13 ERISA Compliance.



     
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Internal Revenue
Code and other federal or state Laws. Each Plan that is intended



97







 




to qualify under Section 401(a) of the Internal Revenue
Code has received a favorable determination letter from the IRS
or an application for such a letter is pending before the IRS
with respect thereto and, to the best knowledge of the
Borrowers, nothing has occurred that would prevent, or cause the
loss of, such qualification. The Borrowers and each ERISA
Affiliate have made all required contributions to each Plan
subject to Section 412 of the Internal Revenue Code, and no
application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal
Revenue Code has been made with respect to any Plan.



     
(b) There are no pending or, to the best knowledge of the
Borrowers, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan that could
be reasonably be expected to have a Material Adverse Effect.
There has been no non-exempt prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan
that has resulted or could reasonably be expected to result in a
Material Adverse Effect.



     
(c) Except to the extent it would not reasonably be
expected to have a Material Adverse Effect (i) no ERISA
Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrowers nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any material liability
under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither the Borrowers nor
any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred that,
with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243
of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrowers nor any ERISA Affiliate has
engaged in a transaction that could reasonably be expected to be
subject to Sections 4069 or 4212(c) of ERISA.



     
SECTION 6.14 Jurisdiction of Organization, Capital Stock
and Ownership of Credit Parties.



     
(a) As of the Closing Date, set forth on
Schedule 6.14, with respect to each Credit Party, is
the jurisdiction of organization, classes of Capital Stock
(including options, warrants, rights of subscription,
conversion, exchangeability and other similar rights), ownership
and ownership percentages thereof. The outstanding shares of
Capital Stock have been validly issued, fully paid and are
non-assessable and owned free of Liens other than Liens
permitted by Section 8.02. The outstanding shares of
Capital Stock shown are not the subject of buy-sell, voting
trust or other shareholder agreement except as identified on
Schedule 6.14.



     
(b) Each of the Borrowers (other than FMCAG) is a Wholly
Owned Subsidiary of FMCAG.



     
(c) As of the Closing Date, NMC is a Wholly Owned
Subsidiary of FMCH.



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SECTION 6.15 Margin Regulations; Investment Company Act;
Public Utility Holding Company Act.



     
(a) The Credit Parties are not engaged and will not engage,
principally or as one of their important activities, in the
business of purchasing or carrying “margin stock”
(within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each
Borrowing or drawing under each Letter of Credit, not more than
twenty-five percent (25%) of the value of the assets subject to
the provisions of Section 8.02 or
Section 8.05 or subject to any restriction contained
in any agreement or instrument between a Borrower and any Lender
or any Affiliate of any Lender relating to Indebtedness will be
margin stock.



     
(b) None of the Credit Parties, any Person Controlling a
Credit Party, or any Subsidiary (i) is a “holding
company,” or a “subsidiary company” of a
“holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary
company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935, or
(ii) is or is required to be registered as an
“investment company” under the Investment Company Act
of 1940.



     
SECTION 6.16 Disclosure. No report, financial
statement, certificate or other information (other than
information of a general economic nature) furnished (whether in
writing or orally) by or on behalf of any Credit Party to the
Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this
Credit Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) taken as a whole
contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that, with respect to projected
financial information, the Borrowers represent only that such
information was prepared in good faith based upon assumptions
believed to be reasonable at the time, it being understood that
projections are subject to uncertainties and contingencies
beyond the control of the Credit Parties and that no assurance
can be given that such projections will be realized.



     
SECTION 6.17 Compliance with Laws. Each member of
the Consolidated Group is in compliance in all material respects
with the requirements of all Laws and all orders, writs,
injunctions, settlements or other agreements with any
Governmental Authority and decrees applicable to it or to its
properties (including the CIA), except in such instances in
which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.



     
SECTION 6.18 Intellectual Property; Licenses, Etc.
Except to the extent it would not reasonably be expected to have
a Material Adverse Effect, (a) the Consolidated Group owns,
or possesses the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights
(collectively, “IP Rights”) that are
reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other
Person, (b) to the best knowledge of the Credit Parties, no
slogan or



99







 




other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be
employed, by any member of the Consolidated Group infringes upon
any rights held by any other Person, and (c) no claim or
litigation regarding any of the foregoing is pending or, to the
best knowledge of the Credit Parties, threatened.



     
SECTION 6.19 Pledge Agreements. Each Pledge
Agreement is effective to create in favor of the Collateral
Agent, for the ratable benefit of the holders of the
Obligations, a legal, valid and enforceable security interest in
the Collateral identified therein on the terms set forth
therein, except to the extent the enforceability thereof may be
limited by applicable Debtor Relief Laws affecting
creditors’ rights generally and by equitable principles of
law (regardless of whether enforcement is sought in equity or at
law) and, when such Collateral is delivered to the Collateral
Agent, each Pledge Agreement shall constitute a fully perfected
first priority Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such
Collateral, in each case prior and superior in right to any
other Lien.



     
SECTION 6.20 Reimbursement from Medical Reimbursement
Programs. The accounts receivable of each of the Domestic
Credit Parties have been and will continue to be adjusted in all
material respects to reflect the reimbursement policies (both
those most recently published in writing as well as those not in
writing that have been verbally communicated) of any Medical
Reimbursement Program (including Medicare, Medicaid, Blue Cross/
Blue Shield, private insurance companies, health maintenance
organizations, preferred provider organizations, alternative
delivery systems, managed care systems, government contracting
agencies and other third party payors) applicable to such Credit
Party. In particular, such accounts receivable relating to any
Medical Reimbursement Program do not and shall not exceed
amounts any obligee is entitled to receive under any capitation
arrangement, fee schedule, discount formula, cost-based
reimbursement or other adjustment or limitation to its usual
charges, in each case to the extent it would not reasonably be
expected to have a Material Adverse Effect.




ARTICLE VII




AFFIRMATIVE COVENANTS



     
Until the Loan Obligations hereunder shall have been paid in
full or otherwise satisfied, and the Commitments hereunder shall
have expired or been terminated, the Credit Parties will, and
will cause members of the Consolidated Group to:



     
SECTION 7.01 Financial Statements. Deliver to the
Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required
Lenders:






		
	 	     
    (a) as soon as available, and in any event within five days
    after the date such information is required to be delivered to
    the SEC (but not in any event more than ninety-five days after
    the end of any fiscal year), consolidated balance sheets of
    FMCAG and its Subsidiaries, as at the end of each fiscal year
    (beginning with the fiscal year ending December 31, 2006),
    and the related consolidated statements of income or operations,
    and the related statements of shareholders’ equity and cash
    flows for such fiscal year,



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    setting forth in each case in comparative form the figures for
    the previous fiscal year, all in reasonable detail and prepared
    in accordance with GAAP, audited and accompanied by a report and
    opinion of an independent certified public accountant of
    nationally recognized standing reasonably acceptable to the
    Required Lenders, which report and opinion shall state that such
    accountants conducted their audit of such financial statements
    in accordance with generally accepted auditing standards and
    shall not be subject to any “going concern” or like
    qualification or exception or any qualification or exception as
    to the scope of such audit or other material qualification or
    exception of any kind; and






		
	 	     
    (b) as soon as available, and in any event within five days
    after the date such information is required to be delivered to
    the SEC (but not in any event more than fifty days after the end
    of any fiscal quarter), consolidated balance sheets of FMCAG and
    its Subsidiaries, as at the end of for each of the first three
    fiscal quarters of each fiscal year, and the related
    consolidated statements of income or operations, and the related
    statements of shareholders’ equity and cash flows for such
    fiscal quarter and for the portion of the fiscal year then
    ended, setting forth in each case in comparative form the
    figures for the corresponding fiscal quarter of the previous
    fiscal year and the corresponding portion of the previous fiscal
    year, all in reasonable detail and certified by a Responsible
    Officer thereof as fairly presenting the financial condition,
    results of operations, shareholders’ equity and cash flows
    in accordance with GAAP, subject only to normal year-end audit
    adjustments and the absence of footnotes.



     
As to any information contained in materials furnished pursuant
to Section 7.02(c), the Borrowers shall not be
separately required to furnish such information under
subsections (a) or (b) above, but the foregoing
shall not be in derogation of the obligation of the Borrowers to
furnish the information and materials described in
subsections (a) and (b) above at the times
specified therein.



     
SECTION 7.02 Certificates; Other Information.



     
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required
Lenders:






		
	 	     
    (a) concurrently with the delivery of the financial
    statements referred to in Section 7.01(a), a
    certificate of its independent certified public accountants
    certifying such financial statements and stating that in making
    the examination necessary therefor no knowledge was obtained of
    any Default or Event of Default or, if any such Default or Event
    of Default shall exist, stating the nature and status of such
    event;
	 
	 	     
    (b) concurrently with the delivery of the financial
    statements referred to in Sections 7.01(a) and
    (b), a duly completed Compliance Certificate signed by a
    Responsible Officer (i) setting forth computations in
    reasonable detail satisfactory to the Administrative Agent
    demonstrating compliance with the financial covenants, (ii)
    demonstrating compliance with certain other covenants contained
    herein (including certain Indebtedness permitted under
    Section 8.01, certain Investments permitted under



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    Section 8.03 and certain Restricted Payments
    permitted under Section 8.06), (iii) certifying that
    no Default or Event of Default exists as of the date thereof (or
    the nature and extent thereof and proposed actions with respect
    thereto) and (iv) to the extent necessary pursuant to
    Section 1.03, including a summary of all material changes
    in or the consistent application of GAAP affecting the numeric
    value of the financial covenants, and a reconciliation between
    calculation of the financial covenants (and determination of the
    applicable pricing level under the definition of
    “Applicable Percentage”) before and after giving
    effect to such changes;






		
	 	     
    (c) promptly after the same are available, copies of each
    annual report, proxy or financial statement or other report or
    communication sent to the stockholders of FMCAG, and copies of
    all annual, regular, periodic and special reports and
    registration statements that FMCAG may file or be required to
    file with the SEC under Section 13 or 15(d) of the
    Securities Exchange Act of 1934, and not otherwise required to
    be delivered to the Administrative Agent pursuant hereto; and
	 
	 	     
    (d) promptly, such additional information regarding the
    business, financial or corporate affairs of members of the
    Consolidated Group, or compliance with the terms of the Credit
    Documents, as the Administrative Agent or any Lender may from
    time to time reasonably request.



     
Documents required to be delivered pursuant to
Section 7.01(a) or (b) or
Section 7.02(c) (to the extent any such documents
are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which FMCAG posts
such documents at sec.gov/edaux/searches.htm, or provides a link
thereto on FMCAG’s website on the internet at the website
address listed on Schedule 11.02; or (ii) on
which such documents are posted on FMCAG’s behalf on
IntraLinks/ IntraAgency or another relevant website, if any, to
which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored
by the Administrative Agent); provided that:
(i) FMCAG shall deliver paper copies of such documents to
the Administrative Agent or any Lender that requests FMCAG to
deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or
such Lender and (ii) FMCAG shall notify (which may be by
facsimile or electronic mail) the Administrative Agent and each
Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance FMCAG shall be
required to provide paper copies of the Compliance Certificates
required by Section 7.02(b) to the Administrative
Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility
to monitor compliance by FMCAG with any such request for
delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such
documents.



     
The Borrowers hereby acknowledge that (A) the
Administrative Agent and the Arrangers will make available to
the Lenders materials and/or information provided by or on
behalf of the



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Borrowers hereunder (collectively, the “Borrower
Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the
“Platform”) and (B) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with
respect to the Borrowers or their securities) (each, a
“Public Lender”). The Borrowers hereby further
agree that (1) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the
first page thereof; (2) by marking Borrower Materials
“PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent, the Arrangers and the
Lenders to treat such Borrower Materials as not containing any
material non-public information (although it may be sensitive
and proprietary) with respect to the Borrowers or their
securities for purposes of United States federal and state
securities laws (provided that to the extent such
Borrower Materials constitute Information, they shall be treated
as set forth in Section 11.08); (3) all
Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated as
“Public Investor”; and (4) the Administrative
Agent and the Arrangers shall be entitled to treat and shall
treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a
portion of the Platform not marked as “Public
Investor”.



     
SECTION 7.03 Notification. Promptly notify the
Administrative Agent and each Lender party to this Credit
Agreement:






		
	 	     
    (a) after any Credit Party knows or has reason to know of
    the occurrence of any Default or Event of Default;
	 
	 	     
    (b) of any matter that has resulted or, if adversely
    determined, would reasonably be expected to result in a Material
    Adverse Effect, including as a result of (i) breach or
    non-performance of, or any default under, a Contractual
    Obligation of the Borrowers or any Subsidiary; (ii) any dispute,
    litigation, investigation, proceeding or suspension between the
    Borrowers or any Subsidiary and any Governmental Authority; or
    (iii) the commencement of, or any material development in, any
    litigation or proceeding affecting the Borrowers or any
    Subsidiary, including pursuant to any applicable Environmental
    Laws;
	 
	 	     
    (c) of the occurrence of any ERISA Event;
	 
	 	     
    (d) of any material change in accounting policies or
    financial reporting practices by members of the Consolidated
    Group to the extent such change affects compliance with the
    financial covenants hereunder;
	 
	 	     
    (e) of any notice of intent to exclude, any notice of
    proposal to exclude issued by the OIG or any other Exclusion
    Event that would reasonably be expected to result in a Material
    Adverse Effect;
	 
	 	     
    (f) of (i) the institution of any investigation,
    review or proceeding against any Credit Party to suspend, revoke
    or terminate (or that may result in the termination of) any
    Medicaid Provider Agreement or Medicare Provider Agreement, or
    any such



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    investigation or proceeding that may result in an Exclusion
    Event, (ii) any notice of loss or threatened loss of
    accreditation by the Joint Commission on Accreditation of
    Healthcare Organizations or any other accrediting entity, loss
    of participation under any Medical Reimbursement Program or loss
    of applicable health care license, or (iii) payment of any
    penalties or the imposition of any other remedies pursuant to
    the CIA, in each case, that would reasonably be expected to
    result in a Material Adverse Effect.






		
	 	     
    (g) of any change in the Debt Rating; and
	 
	 	     
    (h) of the issuance of any material indictment or the
    initiation of other material criminal proceedings against any
    member of the Consolidated Group and provide a certificate,
    signed by a Responsible Officer, setting forth a detailed
    description of the nature of the proceedings and the relevant
    facts in connection therewith together with an estimation of the
    fines, penalties and damages sought in connection therewith.



     
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrowers have taken and proposes to take with respect thereto.
Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this
Credit Agreement and any other Credit Document that have been
breached.



     
SECTION 7.04 Payment of Obligations. Pay and
discharge as the same shall become due and payable, all its
material obligations and liabilities, including (a) all
material tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with
GAAP are being maintained; (b) all lawful claims that, if
overdue and unpaid, would by law become a Lien upon its property
(other than Liens permitted hereunder); and (c) all
Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.



     
SECTION 7.05 Preservation of Existence, Etc.



     
(a) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction
permitted by Section 8.04 or 8.05 or in a
liquidation, dissolution, winding-up or other termination of
existence not prohibited by Section 8.04;
(b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew
all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.



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SECTION 7.06 Maintenance of Properties.



     
(a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and
tear excepted; (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do
so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.



     
SECTION 7.07 Maintenance of Insurance. Maintain in
full force and effect, self-insurance arrangements or insurance
with financially sound and reputable insurance companies that
are not Affiliates, with respect to its properties and business
against loss or damage of the kinds, of such types, in such
amounts and with such deductibles and self-insurance retentions
as are in accordance with sound business practice.



     
SECTION 7.08 Compliance with Laws.



     
(a) Except to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect, cause
each member of the Consolidated Group to (i) comply with
all the requirements of Law (including Titles XVIII and XIX of
the Social Security Act, Medicare Regulations, Medicaid
Regulations), and all restrictions and requirements imposed by
any Governmental Authority, applicable to it and its property
(including the CIA, Environmental Laws and ERISA),
(ii) obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as
currently conducted and herein contemplated (including
professional licenses, CIA certifications, certificates or
determinations of need, Medicare Provider Agreements and
Medicaid Provider Agreements), (iii) ensure that billing
policies, arrangements, protocols and instructions will comply
with reimbursement requirements under Medicare, Medicaid and
other Medical Reimbursement Programs and will be administered by
properly trained personnel and (iv) make commercially
reasonable efforts to implement policies that are consistent
with the regulations implementing the privacy requirements of
the Administrative Simplification subtitle of HIPAA set forth at
45 CFR Parts 160, 162 and 164.



     
(b) FMCH has in place and shall maintain a compliance
program for its Subsidiaries that is reasonably consistent with
publicly available OIG guidelines and is reasonably designed to
provide effective internal controls that promote adherence to,
prevent and detect material violations of, Laws applicable to
its Subsidiaries, including any Medicaid Regulations and
Medicare Regulations applicable to its Subsidiaries, and to
comply with all applicable requirements of the CIA, which
compliance program includes the implementation of internal
audits and monitoring on a regular basis to monitor compliance
therewith, with such regulations and the CIA.



     
SECTION 7.09 Books and Records. Maintain proper
books of record and account, in which full, true and correct
entries in conformity with GAAP (or, with respect to any foreign
entity, the equivalent) shall be made of all financial
transactions and matters involving the assets and business of
the Borrowers or such Subsidiary, as the case may be; and
(b) maintain such



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books of record and account in material conformity with all
applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrowers or such Subsidiary,
as the case may be.



     
SECTION 7.10 Inspection Rights. Permit
representatives and independent contractors of the
Administrative Agent to visit and inspect any of its properties,
to examine its corporate, financial and operating records, and
make copies thereof (other than materials protected by attorney
client privilege or that a Credit Party may not disclose without
violation of a confidentiality obligation binding on it) or
abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public
accountants, at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable
advance notice; provided, however, that when an Event of
Default exists the Administrative Agent (or any of its
representatives or independent contractors) may do any of the
foregoing at the expense of FMCAG at any time during normal
business hours and without advance notice.



     
SECTION 7.11 Use of Proceeds. Use the proceeds of
the Credit Extensions to finance the RCG Acquisition (including
fees and expenses relating thereto), to refinance certain
existing indebtedness and for general corporate purposes not in
contravention of any Law or of any Credit Document.



     
SECTION 7.12 Joinder of Additional Guarantors. Give
prompt notice to the Administrative Agent of the formation,
acquisition (or other receipt of interests) or existence of
(a) any Material Subsidiary of FMCAG, (ii) any
Material Domestic Subsidiary of FMCH, or (c) any Subsidiary
of FMCAG that is not a Guarantor hereunder that issues or
becomes obligated with respect to Subordinated Debt pursuant to
Section 8.01(j), and shall cause any such Subsidiary
to become a Guarantor hereunder by execution and delivery of a
Guarantor Joinder Agreement, or such other document as the
Administrative Agent may deem appropriate, within ninety
(90) days of the formation, acquisition or existence
thereof (except in the case of RCG and the Material Domestic
Subsidiaries of RCG, which guaranties shall be provided on the
Closing Date), together with such organizational documents,
resolutions, opinions of counsel and such other documents as the
Administrative Agent may reasonably request in connection
therewith, all in form, content and scope reasonably
satisfactory to the Administrative Agent; provided that
notwithstanding anything contained herein to the contrary, in
the case of a guaranty by a Material Foreign Subsidiary
otherwise required hereunder, the Administrative Agent shall, in
consultation with FMCAG, do an analysis of the relative benefits
associated with the prospective guaranty and where, in its
reasonable discretion, the Administrative Agent shall make a
determination, taking into account local custom and practice,
that the costs, circumstances and requirements under local law
associated with the guaranty outweigh the relative benefits of
the guaranty, then in any such case the guaranty will not be
required. Without limiting the foregoing provisions regarding
the required joinder of Guarantors, FMCAG may, in its
discretion, join any other Subsidiary as a Guarantor hereunder.



     
SECTION 7.13 Pledge of Capital Stock. Pledge or
cause to be pledged to the Collateral Agent to secure the
Obligations pursuant to the Collateral Documents:



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    (a) in the case of Subsidiaries of FMCAG (other than
    Subsidiaries of FMCH), one hundred percent (100%) of the issued
    and outstanding Capital Stock with ordinary voting power issued
    to FMCAG or any of its Subsidiaries of (i) FMCH,
    (ii) FMCD, (iii) FMCF-V, (iv) National Medical
    Care of Spain, S.A., (v) Fresenius Medical Care Japan,
    K.K., and (vi) all Material Subsidiaries of FMCAG (other
    than (A) FMC US Beteiligungsgesellschaft mbH, FMC US Zwei
    Beteiligungsgesellschaft mbH, FMC US Drei
    Beteiligungsgesellschaft mbH, and (B) Subsidiaries of
    FMCH); provided that (1) in the case of the pledge
    of Capital Stock in Foreign Subsidiaries on the Closing Date,
    execution, notarization and recordation of local pledge
    agreements, parallel debt agreements and such other acts
    necessary or appropriate to give effect to the pledge under
    local law, together with the delivery of local counsel opinions
    in respect thereof, will be completed within ten (10) days
    of the Closing Date and (2) in the case of a pledge of
    Capital Stock of a Foreign Subsidiary, the Administrative Agent
    shall, in consultation with FMCAG, do an analysis of the
    relative benefits associated with the prospective pledge and
    where, in its reasonable discretion, the Administrative Agent
    shall make a determination, taking into account local custom and
    practice, that the costs, circumstances and requirements under
    local law associated with the pledge outweigh the relative
    benefits of the pledge, then in any such case the pledge will
    not be required;
	 
	 	     
    (b) in the case of Subsidiaries of FMCH (including, upon
    consummation of the RCG Acquisition, RCG and its Material
    Domestic Subsidiaries), (A) one hundred percent (100%) of
    the issued and outstanding Capital Stock with ordinary voting
    power issued to FMCH or any of its Subsidiaries of all Material
    Domestic Subsidiaries, and (B) sixty-five percent (65%) of the
    issued and outstanding Capital Stock with ordinary voting power
    issued to FMCH or any of its Subsidiaries of all
    First-Tier Foreign Subsidiaries that are Material Foreign
    Subsidiaries;
	 
	 	     
    (c) within ninety (90) days after a Subsidiary shall
    become a Material Subsidiary or after the formation, acquisition
    or other receipt of Capital Stock in a Material Subsidiary
    (except in the case of RCG and the Material Domestic
    Subsidiaries of RCG on the Closing Date, in which case, within
    five (5) days of the formation, acquisition or existence
    thereof), in each case pursuant to a Pledge Agreement or pledge
    joinder agreement, together with such filings and deliveries
    necessary or appropriate to perfect the security interests
    therein, and opinions of counsel relating thereto, all in form,
    content and scope reasonably satisfactory to the Collateral
    Agent; provided that (i) in each case any preferred
    stock issued by FMCH outstanding as of the Closing Date shall
    not be pledged pursuant hereto and (ii) in the case of a
    pledge of Capital Stock of a Foreign Subsidiary, the
    Administrative Agent shall, in consultation with FMCAG, do an
    analysis of the relative benefits associated with the
    prospective pledge and where, in its reasonable discretion, the
    Administrative Agent shall make a determination, taking into
    account local custom and practice, that the costs, circumstances
    and requirements under local law associated with the pledge
    outweigh the relative benefits of the pledge, then in any such
    case the pledge will not be required.



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SECTION 7.14 Ownership. Except as otherwise
permitted under Section 8.04, at all times
(a) each of the Primary Borrowers (other than FMCAG) shall
be a Wholly Owned Subsidiary of FMCAG and (b) NMC shall be
a Wholly Owned Subsidiary of FMCH.



     
SECTION 7.15 Interest Rate Protection. Enter into,
within ninety (90) days of the Closing Date, and maintain
one or more Swap Contracts on such terms as shall be reasonably
satisfactory to the Administrative Agent, the effect of which
shall be to fix or limit the interest cost for a period of three
(3) years from the Closing Date with respect to a notional
amount equal to at least thirty-five percent (35%) of the
aggregate principal amount of the Term Loans outstanding.



     
SECTION 7.16 Pledge of Additional Collateral. If at
any time the Debt Rating is lower than Ba3 from Moody’s (or
unrated) or lower than BB- from S&P (or unrated), then the
Credit Parties will promptly grant security interests in the
following:






		
	 	     
    (a) Domestic Personal Property. Except as may be
    agreed by the Administrative Agent and FMCAG, the Credit Parties
    will grant a security interest in substantially all personal
    property (including all accounts, contract rights, deposit
    accounts, chattel paper, insurance proceeds, inventory,
    investments and financial assets, general intangibles,
    intellectual property, licenses, machinery and equipment)
    located in the United States and which may be perfected by
    filing financing statements under the Uniform Commercial Code or
    by filing notices of security interests in respect of
    intellectual property with the United States Copyright Office or
    the United States Patent and Trademark Office. The scope of the
    personal property covered by this subsection will not include
    Excluded Personal Property. In connection with any grant of
    security interest under this subsection, the Credit Parties will
    deliver to the Administrative Agent within thirty (30) days
    (with extensions as deemed necessary by the Administrative
    Agent) (i) a security agreement in form and substance
    reasonably satisfactory to the Administrative Agent, executed in
    multiple counterparts, (ii) notices of grant of security
    interest in respect of intellectual property with the United
    States Copyright Office or the United States Patent and
    Trademark Office reasonably satisfactory to the Administrative
    Agent, executed in multiple counterparts, (iii) such
    opinions of counsel as the Administrative Agent may deem
    necessary or appropriate, in form and substance reasonably
    satisfactory to the Administrative Agent, (iv) evidence of
    casualty insurance (consistent with the requirements for
    insurance hereunder) on personal property showing the Collateral
    Agent as loss payee (if insurance is provided by a commercial
    insurer), and (v) such other filings and deliveries as may
    be necessary or appropriate as determined by the Administrative
    Agent in its reasonable discretion.
	 
	 	     
    (b) Domestic Real Property. Except as may be agreed
    by the Administrative Agent, the Credit Parties will mortgage,
    pledge and grant a security interest in all fee-owned real
    property located in the United States with a fair value in
    excess of $5 million in any instance (or otherwise
    determined to be material in the reasonable judgment of the
    Administrative Agent). Further, the Administrative Agent, in
    consultation with FMCAG, shall do an analysis of the relative
    benefits associated with the prospective mortgage lien and
    where, in its reasonable discretion, the Administrative Agent
    shall make a determination, taking into account local mortgage
    recording tax issues, that the costs,



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circumstances and requirements under local law associated with
the mortgage lien outweigh the relative benefits of the mortgage
lien, then, in any such case, the mortgage will not be required.
In connection with the mortgage, pledge or grant of a security
interest under this subsection, the Credit Parties will deliver
to the Administrative Agent within one hundred twenty
(120) days (with extensions as deemed necessary by the
Administrative Agent) (i) a mortgage, deed of trust, deed
to secure debt or other similar instrument in form and substance
reasonably satisfactory to the Administrative Agent, executed in
multiple counterparts, (ii) copies of recent ALTA surveys
prepared by registered engineers or land surveyors for each
mortgaged property, (iii) standard ALTA mortgagee policies
insuring the priority of the mortgage instruments and copies of
recorded documentation relating to any exceptions,
(iv) copies of environmental reports and other material,
non-privileged environmental documentation relating to the
mortgaged properties, in each case in form and substance
reasonably acceptable to the Collateral Agent, (v) evidence
of casualty insurance (consistent with the requirements for
insurance hereunder) on the real property improvements showing
the Collateral Agent as loss payee (if insurance is provided by
a commercial issuer), and (vi) evidence of flood insurance
on improvements located in a flood hazard area for the mortgaged
properties identifying the Collateral Agent as sole loss payee.






		
	 	     
    (c) Foreign Personal Property. Except as may be
    agreed by the Administrative Agent, the Credit Parties (other
    than Credit Parties that are Foreign Subsidiaries of FMCH) will
    grant a security interest in all material personal property
    (including all accounts, contract rights, deposit accounts,
    chattel paper, insurance proceeds, inventory, investments and
    financial assets, general intangibles, intellectual property,
    licenses, machinery and equipment) located outside the United
    States with a fair value in excess of $5 million in any
    instance (or otherwise determined to be material in the
    reasonable discretion of the Administrative Agent). The scope of
    the security interests will contain exceptions and
    qualifications reasonably acceptable to the Administrative
    Agent, and will not include Excluded Personal Property. Further,
    the Administrative Agent, in consultation with FMCAG, shall do
    an analysis of the relative benefits associated with the
    prospective pledge and where, in its reasonable discretion, the
    Administrative Agent shall make a determination, taking into
    account local custom and practice, that the costs, circumstances
    and requirements under local law associated with the pledge
    outweigh the relative benefits of the pledge, then, in any such
    case, the pledge will not be required. In connection with the a
    grant of security interests under this subsection, the Credit
    Parties will deliver to the Administrative Agent within ninety
    (90) days (with extensions as deemed necessary by the
    Administrative Agent) (i) a security agreement in form and
    substance reasonably satisfactory to the Administrative Agent,
    executed in multiple counterparts, (ii) filings and notices
    of grant of security interest in respect of such personal
    property as may be necessary or appropriate to perfect the
    subject interests and otherwise reasonably satisfactory to the
    Administrative Agent, (iii) such opinions of counsel as the
    Administrative Agent may deem necessary or appropriate, in form
    and substance reasonably satisfactory to the Administrative
    Agent, (iv) evidence of casualty insurance (consistent with
    the requirements for insurance hereunder) on personal property
    showing the Collateral Agent and loss payee (if insurance is
    provided by a commercial insurer), and (v) such other
    deliveries as may be



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    customary, necessary or appropriate in the subject jurisdiction
    as determined by the Administrative Agent in its reasonable
    discretion.






		
	 	     
    (d) Foreign Real Property. Except as may be agreed
    by the Administrative Agent, the Credit Parties will mortgage,
    pledge and grant a security interest in all fee-owned (or local
    equivalent) real property located outside the United States with
    a fair value in excess of $5 million in any instance (or
    otherwise determined to be material in the reasonable judgment
    of the Administrative Agent). Further, the Administrative Agent,
    in consultation with FMCAG, shall do an analysis of the relative
    benefits associated with the prospective mortgage and where, in
    its reasonable discretion, the Administrative Agent shall make a
    determination, taking into account local custom and practice,
    that the costs, circumstances and requirements under local law
    associated with the mortgage outweigh the relative benefits of
    the mortgage, then, in any such case, the mortgage will not be
    required. In connection with such mortgage, pledge or grant of a
    security interest under this subsection, the Credit Parties will
    deliver to the Administrative Agent within one hundred eighty
    (180) days (with extensions as deemed necessary by the
    Administrative Agent) a mortgage, deed of trust, deed to secure
    debt or other similar instrument in form and substance
    reasonably satisfactory to the Administrative Agent, executed in
    multiple counterparts, together with such other deliveries as
    may be customary, necessary or appropriate in the subject
    jurisdiction as determined by the Administrative Agent in its
    reasonable discretion.




ARTICLE VIII




NEGATIVE COVENANTS



     
Until the Loan Obligations hereunder shall have been paid in
full or otherwise satisfied, and until the Commitments hereunder
shall have expired or been terminated, the Credit Parties will
not, and will not permit members of the Consolidated Group to:



     
SECTION 8.01 Indebtedness. Create, incur,
assume or suffer to exist any Indebtedness, except:






		
	 	     
    (a) Indebtedness arising or existing under this Credit
    Agreement, the Term Loan Credit Agreement and the other Credit
    Documents;
	 
	 	     
    (b) Indebtedness identified on Schedule 8.01, and any
    refinancings, refundings, renewals or extensions thereof,
    provided that the principal amount of such Indebtedness
    is not increased at the time of any such refinancing, refunding,
    renewal or extension (except that the terms of any such
    refinancing, refunding, renewal or extension shall be on terms
    consistent with prevailing market standards, but not materially
    less favorable to the member of the Consolidated Group than the
    terms of the Indebtedness that is the subject of such
    refinancing, refunding, renewal or extension), but the amount of
    any such refinancing, refunding, renewal or extension may
    include (i) the amount of



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    unfunded commitments relating thereto and (ii) the costs
    thereof, including reasonable fees and expenses in connection
    therewith);






		
	 	     
    (c) unsecured intercompany Indebtedness among members of
    the Consolidated Group to the extent permitted by
    Section 8.03;
	 
	 	     
    (d) Indebtedness and obligations (contingent or otherwise)
    owing under Swap Contracts, provided that such
    obligations are (or were) entered into by such Person in the
    ordinary course of business for the purpose of directly
    mitigating risks associated with liabilities, commitments,
    investments, assets or property held or reasonably anticipated
    by such Person, or changes in the value of securities issued by
    such Person, and not for the purposes of speculation or taking a
    “market view”;
	 
	 	     
    (e) Indebtedness under capital leases, Synthetic Lease
    obligations and purchase money obligations incurred to provide
    all or a portion of the purchase price (or cost of construction
    or acquisition), in each case, for capital assets and
    refinancings, refundings, renewals or extensions thereof,
    provided that (i) such Indebtedness when incurred
    shall not exceed the purchase price or cost of construction of
    such asset, (ii) no such Indebtedness shall be refinanced
    for a principal amount in excess of the principal balance
    outstanding thereon at the time of such refinancing, and
    (iii) for the Consolidated Group taken as a whole, the
    total amount of all such Indebtedness incurred after the Closing
    Date plus the Attributed Principal Amount of Sale and
    Leaseback Transactions entered into after the Closing Date that
    are not otherwise included in such Indebtedness shall not exceed
    $250 million in the aggregate at any time;
	 
	 	     
    (f) Indebtedness and obligations under Permitted
    Receivables Financings, provided that the Attributed
    Principal Amount of all such Permitted Receivables Financings
    shall not exceed $750 million in the aggregate at any time;
	 
	 	     
    (g) senior Funded Debt of FMCAG and its Subsidiaries in a
    principal amount not to exceed an amount equal to the difference
    of (i) $700 million (or the Dollar Equivalent thereof on
    the date on which the amount is fixed, to the extent that any
    such Indebtedness is denominated other than in Dollars)
    minus (ii) the aggregate principal amount of loans
    and commitments established under the Incremental Loan
    Facilities hereunder, in the aggregate at any time outstanding,
    provided that not more than $550 million of such
    Funded Debt may be issued, assumed or guaranteed by the Credit
    Parties generally;
	 
	 	     
    (h) in addition to Indebtedness otherwise permitted under
    this Section 8.01, senior Funded Debt of FMCH and
    its Subsidiaries in a principal amount not to exceed
    $50 million (or the Dollar Equivalent thereof on the date
    on which the amount is fixed, to the extent that any such
    Indebtedness is denominated other than in Dollars) in the
    aggregate at any time outstanding;
	 
	 	     
    (i) customer deposits and advance payments received from
    customers for goods purchased in the ordinary course of business;



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    (j) in addition to Indebtedness otherwise permitted under
    this Section 8.01, Subordinated Debt and Support
    Obligations relating thereto, provided that (i) the
    maturity date for any such debt is not earlier than the final
    maturity date of the Tranche B Term Loan, (ii) such
    Subordinated Debt and any Support Obligations relating thereto
    shall be subordinated to the Obligations hereunder on terms and
    conditions materially no less favorable to the Lenders than
    those in the Trust Preferred Subdebt issued and outstanding on
    the Closing Date or on terms and conditions otherwise reasonably
    acceptable to the Administrative Agent and the Required Lenders
    and (iii) any Person that gives a Support Obligation in
    respect of any such Subordinated Debt shall also give a guaranty
    of the Obligations hereunder and become a Guarantor hereunder,
    provided further, that on the date of issuance,
    incurrence or assumption of any such additional Subordinated
    Debt, (A) no Default or Event of Default shall then exist
    and be continuing immediately before or after giving effect
    thereto, (B) the Consolidated Group shall be in compliance
    with the financial covenants hereunder after giving effect
    thereto on a Pro Forma Basis and (C) a Responsible Officer
    of FMCAG shall provide a compliance certificate, in form and
    detail satisfactory to the Administrative Agent, affirming the
    matters in this subsection;
	 
	 	     
    (k) Indebtedness of FMCAG and its Subsidiaries owing to
    Fresenius AG and any of its Subsidiaries (other than FMCAG and
    its Subsidiaries) in an aggregate principal amount not to exceed
    $400 million at any time outstanding (the “AG
    Debt”); provided that such Indebtedness shall be
    subordinated to the Obligations on terms and conditions
    materially no less favorable to the Lenders than those in the
    Trust Preferred Subdebt issued and outstanding on the
    Closing Date or on terms and conditions otherwise reasonably
    acceptable to the Administrative Agent and the Required Lenders;
	 
	 	     
    (l) Indebtedness in respect of convertible bonds referred
    to in Section 8.03(g);
	 
	 	     
    (m) in addition to Indebtedness otherwise permitted under
    this Section 8.01, Indebtedness under the EIB Loan
    in an aggregate principal amount not to exceed
    €
    150,000,000 and any refinancings, refundings, renewals
    and extensions thereof; and
	 
	 	     
    (n) in addition to Indebtedness otherwise permitted under
    this Section 8.01, Indebtedness under the
    Schuldscheindarlehen in an aggregate principal amount not to
    exceed €
    200,000,000 and any refinancings, refundings, renewals
    and extensions thereof.



     
SECTION 8.02 Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than
the following:






		
	 	     
    (a) Liens to secure the loans and obligations owing under
    this Credit Agreement, the Term Loan Credit Agreement and the
    other Credit Documents;
	 
	 	     
    (b) Liens in favor of a Lender or any of its Affiliates
    pursuant to a Swap Contract permitted hereunder, but only to the
    extent that (i) the obligations under such Swap Contract
    are permitted under Section 8.01, (ii) such Liens
    are on the same collateral



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    that secures the Obligations hereunder and (iii) the
    obligations under such Swap Contract and the Obligations share
    pari passu in the collateral subject to such Liens;






		
	 	     
    (c) Liens existing on the date hereof and listed on
    Schedule 8.02 and any renewals or extensions thereof,
    provided that the property covered thereby is not
    broadened or increased and any renewal or extension of the
    obligations secured or benefited thereby is permitted by
    Section 8.01;
	 
	 	     
    (d) Liens for taxes, assessments or governmental charges or
    levies not yet due or payable or that are being contested in
    good faith and by appropriate proceedings diligently conducted,
    if adequate reserves with respect thereto are maintained on the
    books of the applicable Person in accordance with GAAP;
	 
	 	     
    (e) carriers’, warehousemen’s, mechanics’,
    materialmen’s, repairmen’s, supplier’s or other
    like Liens arising in the ordinary course of business that are
    not overdue for a period of more than thirty days or that are
    being contested in good faith and by appropriate proceedings
    diligently conducted, if adequate reserves with respect thereto
    are maintained on the books of the applicable Person;
	 
	 	     
    (f) pledges or deposits in the ordinary course of business
    in connection with workers’ compensation, unemployment
    insurance and other social security legislation, other than any
    Lien imposed by ERISA, or to secure the performance of tenders,
    statutory obligations, bids, leases, government contracts,
    performance and return-of-money bonds and other similar
    obligations (exclusive of obligations for the payment of
    borrowed money);
	 
	 	     
    (g) deposits to secure the performance of bids, trade
    contracts and leases (other than Indebtedness), statutory
    obligations, surety bonds (other than bonds related to judgments
    or litigation), performance bonds and other obligations of a
    like nature incurred in the ordinary course of business;
	 
	 	     
    (h) easements, rights-of-way, restrictions, minor defects
    or irregularities in title and other similar encumbrances
    affecting real property that, in the aggregate, are not
    substantial in amount, and that do not in any case materially
    detract from the value of the property subject thereto or
    materially interfere with the ordinary conduct of the business
    of the applicable Person;
	 
	 	     
    (i) Liens securing attachments or judgments for the payment
    of money not constituting an Event of Default under
    Section 9.01(h) or securing appeal or other surety
    bonds related to such judgments;
	 
	 	     
    (j) Liens securing, or in respect of, obligations under
    capital leases or Synthetic Leases and purchase money
    obligations for fixed or capital assets permitted hereunder,
    provided that (i) such Liens do not at any time
    encumber any property other than the property financed by such
    Indebtedness and (ii) the Indebtedness secured thereby



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    does not exceed the cost or fair market value, whichever is
    lower, of the property being acquired on the date of acquisition;






		
	 	     
    (k) Liens on the property or assets of any Credit Party
    granted in connection with Sale and Leaseback Transactions
    permitted hereunder;
	 
	 	     
    (l) Liens on the property or assets granted in connection
    with Permitted Receivable Financings (including any related
    filings of financing statements), provided that such
    Liens shall extend only to those accounts receivable and related
    property that are the subject of the Permitted Receivables
    Financing;
	 
	 	     
    (m) leases and subleases of real property granted to others
    not interfering in any material respect with the business of any
    member of the Consolidated Group;
	 
	 	     
    (n) any interest of title of a lessor under, and Liens
    arising under UCC financing statements (or equivalent filings,
    registrations or agreements in foreign jurisdictions) relating
    to, leases permitted by this Credit Agreement;
	 
	 	     
    (o) normal and customary rights of setoff on deposits of
    cash in favor of banks and other depository institutions;
	 
	 	     
    (p) Liens in favor of customs and revenue authorities
    required as a matter of law to secure payment of customs duties
    in connection with the importation of goods;
	 
	 	     
    (q) Liens created or deemed to exist by the establishment
    of trusts for the purpose of satisfying (i) Governmental
    Reimbursement Program Costs and (ii) other actions or
    claims pertaining to the same or related matters or other
    Medical Reimbursement Programs, provided in each case
    that (A) adequate reserves for such claims or actions have
    been established and (B) contributions to such trusts in
    respect of such actions or claims shall not exceed
    $60 million at any time;
	 
	 	     
    (r) Liens arising out of the refinancing, extension,
    renewal or refunding of any Indebtedness secured by any Lien
    permitted by any of the foregoing clauses of this
    Section 8.02, provided that (i) such
    Indebtedness is not secured by any additional assets of the
    Consolidated Group and (ii) the amount of such Indebtedness
    secured by any such Lien is not increased; and
	 
	 	     
    (s) Liens other than those referred to herein above,
    provided that (i) the aggregate amount of all
    Indebtedness secured thereby does not at any time exceed
    $50 million and (ii) the Liens do not cover or extend
    to any of the collateral pledged to secure the Obligations
    hereunder.



     
SECTION 8.03 Investments. Make any Investments,
except:






		
	 	     
    (a) cash (including cash held in non-time deposit accounts)
    and Cash Equivalents;



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    (b) accounts receivable created, acquired or made by a
    member of the Consolidated Group in the ordinary course of
    business and payable or dischargeable in accordance with
    customary trade terms;
	 
	 	     
    (c) Investments consisting of stock, obligations,
    securities or other property received by a member of the
    Consolidated Group in settlement of accounts receivable (created
    in the ordinary course of business) from bankrupt obligors;
	 
	 	     
    (d) Investments consisting of capital contributions and
    equity Investments made by members of the Consolidated Group in
    other members of the Consolidated Group prior to the Closing
    Date;
	 
	 	     
    (e) Investments existing on the Closing Date and set forth
    on Schedule 8.03;
	 
	 	     
    (f) Guaranty Obligations permitted by
    Section 8.01;
	 
	 	     
    (g) loans to employees, directors or officers in connection
    with the award of convertible bonds under a stock incentive
    plan, stock option plan or other equity-based compensation plan
    or arrangement in an aggregate amount not to exceed
    $20 million (net of Indebtedness owing by members of the
    Consolidated Group to such employees, directors or officers
    under convertible bonds) in the aggregate at any time
    outstanding;
	 
	 	     
    (h) other advances or loans to directors, officers,
    employees or agents not to exceed $10 million in the
    aggregate at any one time outstanding,
	 
	 	     
    (i) advances or loans to customers or suppliers that do not
    exceed $80 million in the aggregate at any one time
    outstanding;
	 
	 	     
    (j) Investments by a member or an Affiliate of a member of
    the Consolidated Group in connection with a Permitted
    Receivables Financing;
	 
	 	     
    (k) Permitted Acquisitions;
	 
	 	     
    (l) Investments by FMCAG and its Subsidiaries in and to any
    Credit Party that is organized and existing under the laws of an
    Approved Jurisdiction;
	 
	 	     
    (m) Investments by FMCAG and its Subsidiaries in and to
    (i) any Wholly Owned Domestic Subsidiary of FMCH, whether
    or not a Credit Party and (ii) any Foreign Subsidiary of
    FMCH that is a special purpose finance subsidiary;
	 
	 	     
    (n) Investments by members of the Consolidated Group (other
    than FMCH and its Subsidiaries) that are not Credit Parties or
    that are Credit Parties organized and existing under the laws of
    a jurisdiction that is not an Approved Jurisdiction may make
    Investments in and to other such members of the Consolidated
    Group (other than FMCH



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    and its Subsidiaries) that are not Credit Parties or that are
    Credit Parties organized and existing under the laws of a
    jurisdiction that is not an Approved Jurisdiction;






		
	 	     
    (o) Investments by FMCAG and its Subsidiaries in and to
    members of the Consolidated Group that are not otherwise
    permitted under the foregoing subsections (l), (m)
    or (n) of this Section 8.03 in an aggregate
    principal amount outstanding at any time (excluding those
    Investments permitted under subsections (d), (e)
    or (n) of this Section 8.03) not to exceed
    twelve percent (12%) of consolidated total assets of the
    Consolidated Group; provided that where the Investment is
    a loan or advance, there shall be no contractual restriction or
    limitation on the repayment of any such indebtedness;
	 
	 	     
    (p) Investments by FMCAG and its Subsidiaries in and to
    joint ventures or other entities in which FMCAG, directly or
    indirectly, owns less than a majority of the Capital Stock with
    ordinary voting power of such venture or entity; provided
    that (i) the aggregate principal amount of all such
    Investments under this subsection (p), together with the
    aggregate principal amount of loans and advances under
    subsection (q), shall not exceed $300 million at any
    time, and (ii) where the Investment is a loan or advance,
    there shall be no contractual restriction or limitation on the
    repayment of any such indebtedness;
	 
	 	     
    (q) loans and advances by FMCAG and its Subsidiaries in
    Fresenius AG in an aggregate principal amount not to exceed
    $200 million; provided that (i) Fresenius AG no
    longer Controls FMCAG in a manner that allows it to provide
    consolidated financial statements with the Consolidated Group
    under GAAP, then the aggregate principal amount of such loans
    and advances shall not exceed $100 million, (ii) the
    aggregate principal amount of all such loans and advances under
    this subsection (q), together with the aggregate
    principal amount of Investments under subsection (p),
    shall not exceed $300 million at any time, and
    (iii) there shall be no contractual restriction or
    limitation on the repayment of any such indebtedness;
	 
	 	     
    (r) Investments by members of the Consolidated Group in
    Fresenius AG or a common “cash pool” for
    investment purposes maintained by Fresenius AG for the
    investment of funds on an overnight basis; and
	 
	 	     
    (s) other loans, advances or investments of a nature not
    contemplated in the foregoing subsections in an amount not to
    exceed $50 million in the aggregate at any time outstanding.



     
SECTION 8.04 Merger and Consolidation; Dissolution;
Restriction on Certain Foreign Subsidiaries.



     
(a) Enter into a transaction of merger or consolidation;
provided that so long as no Default or Event of Default
then exists or would result therefrom:






		
	 	     
    (i) a Domestic Subsidiary may merge or consolidate with
    another Domestic Subsidiary, provided that (A) FMCH
    shall not merge or consolidate with another Person



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    (other than NMC or a direct Wholly Owned Domestic Subsidiary of
    FMCAG) unless FMCH shall be the surviving corporation or entity
    and (B) if the merger or consolidation involves a Domestic
    Credit Party then, in addition to the conditions contained in
    clause (A), the surviving corporation or entity shall be either
    the Domestic Credit Party or such surviving corporation or
    entity shall become a Guarantor pursuant to the terms of
    Section 7.12 immediately after the consummation of
    such merger or consolidation;






		
	 	     
    (ii) a Foreign Subsidiary may merge or consolidate with any
    other Foreign Subsidiary, provided that (A) FMCAG
    shall not merge or consolidate with another Person unless FMCAG
    shall be the surviving corporation or entity and (B) if
    such merger or consolidation involves a Credit Party, the
    surviving corporation or entity shall either be a Credit Party
    or shall become a Guarantor pursuant to the terms of
    Section 7.12 immediately after the consummation of
    such merger or consolidation; and
	 
	 	     
    (iii) members of the Consolidated Group may merge or
    consolidate with Persons that are not members of the
    Consolidated Group, provided that (A) the
    transaction shall constitute a Permitted Acquisition and shall
    be permitted by Section 8.03, (B) the member of
    the Consolidated Group shall be the surviving entity,
    (C) if the member of the Consolidated Group that is a party
    to the merger or consolidation is a Wholly Owned Subsidiary of
    FMCH, then the surviving entity shall be a Wholly Owned
    Subsidiary of FMCH, (D) if the member of the Consolidated
    Group that is a party to the merger or consolidation is a
    Guarantor hereunder, the surviving entity shall be a Guarantor
    hereunder and (E) no Default or Event of Default shall then
    exist and be continuing immediately before or immediately after
    giving effect thereto.



     
(b) Neither FMCAG nor FMCH will dissolve or otherwise
permit termination of its existence, except in a merger or
consolidation permitted under Section 8.04(a).



     
SECTION 8.05 Dispositions. Make any
Disposition, except:






		
	 	     
    (a) the sale of inventory in the ordinary course of
    business for fair consideration;
	 
	 	     
    (b) the sale or disposition of machinery and equipment no
    longer used or useful in the conduct of such Person’s
    business;
	 
	 	     
    (c) a Permitted Receivables Financing as provided for in
    Section 8.01(f);
	 
	 	     
    (d) in the case of Sale and Leaseback Transactions,
    Dispositions of property (i) if the subject lease is a
    capital lease under GAAP, the transaction shall be permitted
    under Section 8.01(e) and (ii) if the subject
    lease is an operating lease under GAAP, the sum of Indebtedness
    under capital leases, Synthetic Leases and purchase money
    obligations incurred to provide all or a portion of the purchase
    price (or cost of construction or acquisition), in each case for
    capital assets, plus the Attributed Principal Amount of
    Sale and Leaseback Transactions not otherwise included in the
    foregoing Indebtedness shall not exceed the amount referenced in
    Section 8.01(e);



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    (e) Dispositions from a Credit Party to any other Credit
    Party, and Dispositions from a member of the Consolidated Group
    that is not a Credit Party to any other member of the
    Consolidated Group;
	 
	 	     
    (f) Dispositions from a Credit Party to any other member of
    the Consolidated Group that is not a Credit Party if
    (i) such Disposition consists of inventory that is sold in
    the ordinary course of business or (ii) such Dispositions
    are for fair consideration;
	 
	 	     
    (g) Dispositions in compliance with or consistent with any
    order, request or approval by, or any agreement with, any
    Governmental Authority in connection with, as a result of or as
    a condition to the RCG Acquisition; and
	 
	 	     
    (h) Dispositions not otherwise permitted under this
    Section, provided that (i) the aggregate book value
    of property so sold or otherwise disposed of under this
    subsection (h) in any given fiscal year shall not exceed
    an amount equal to (A) for fiscal year 2006, seven and
    one-half percent (7.5%) of Consolidated Net Worth as of
    December 31, 2005, and (B) for fiscal year 2007 and
    each fiscal year thereafter, five percent (5%) of Consolidated
    Net Worth as of the end of the fiscal year immediately preceding
    the date of determination, (ii) no Default or Event of
    Default shall then exist or would result therefrom after giving
    effect thereto on a Pro Forma Basis, (iii) at least seventy
    percent (70%) of the consideration received in connection with
    such Disposition shall be in the form of cash or cash
    equivalents and (iv) the Net Cash Proceeds therefrom shall
    be applied in accordance with the provisions of
    Section 2.06(c)(ii).



     
SECTION 8.06 Restricted Payments. FMCAG will
not make or permit any Restricted Payment, unless and to the
extent that (a) no Default or Event of Default shall exist
after giving effect thereto on a Pro Forma Basis and
(b) the aggregate amount of Restricted Payments in any
calendar year shall not in any event exceed the amount set out
in Schedule 8.06.



     
SECTION 8.07 Change in Nature of Business.
Engage in any material line of business substantially different
from those lines of business conducted by the Consolidated Group
on the date hereof or any business substantially related or
incidental thereto.



     
SECTION 8.08 Transactions with Affiliates.
Enter into any transaction with any Affiliate of the Borrowers,
whether or not in the ordinary course of business, other than
(a) as described on Schedule 8.08,
(b) transactions between Credit Parties,
(c) transactions between a Credit Party and a member of the
Consolidated Group that is not a Credit Party to the extent it
would not be materially detrimental to the interests of FMCH,
(d) customary fees and expenses paid to directors and
(e) transactions that are on fair and reasonable terms
substantially as favorable to such member of the Consolidated
Group as would be obtainable by such member of the Consolidated
Group at the time in a comparable arm’s length transaction
with a Person other than an Affiliate.



     
SECTION 8.09 No Further Negative Pledges.
Except in connection with the Term Loan Credit Agreement and
Indebtedness permitted under subsections (b), (e),
(f), (g), (h) and (j) of



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Section 8.01 or restrictions in the Organization
Documents of any Subsidiary that is not Wholly Owned, no member
of the Consolidated Group will enter into, assume or become
subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired; provided
that (i) in the case of Indebtedness under subsections
(e) and (f) of Section 8.01, such
prohibition or limitations shall relate to the specific property
(and related property) to which such Indebtedness relates,
(ii) in the case of Indebtedness under subsection
(b) of Section 8.01, such prohibitions or
limitations shall not be more restrictive on the members of the
Consolidated Group than those in effect on the Closing Date and
(iii) if the scope of such prohibitions or restrictions in
the documents relating to any assumed Subordinated Debt is
materially more restrictive on FMCAG and its Subsidiaries than
the corresponding prohibitions and restrictions under the
Trust Preferred Subdebt outstanding on the Closing Date,
such Subordinated Debt shall be prepaid, redeemed, defeased or
otherwise acquired for value, or refinanced or otherwise amended
on terms reasonably acceptable to the Administrative Agent and
the Required Lenders, within six months of the related
Acquisition.



     
SECTION 8.10 Fiscal Year. Change its fiscal
year without the prior written consent of the Required Lenders.



     
SECTION 8.11 Financial Covenants.



     
(a) Consolidated Leverage Ratio. As of the end of
each fiscal quarter, the Consolidated Leverage Ratio will not
exceed:




	 	 	 	 	 
	 	 	Maximum	
	 	 	Consolidated	
	Fiscal Quarters Ending	 	Leverage Ratio	
	 	 	 	
	
    
    December 31, 2005 through December 30, 2006

    	 	 	4.85:1.00	 
	
    
    December 31, 2006 through December 30, 2007

    	 	 	4.50:1.00	 
	
    
    December 31, 2007 through December 30, 2008

    	 	 	4.00:1.00	 
	
    
    December 31, 2008 through December 30, 2009

    	 	 	3.50:1.00	 
	
    
    December 31, 2009 and thereafter

    	 	 	3.00:1.00	 




     
(b) Consolidated Fixed Charge Coverage Ratio. As of
the end of each fiscal quarter, the Consolidated Fixed Charge
Coverage Ratio will not be less than 1.20:1.00.



     
(c) Consolidated Capital Expenditures. Consolidated
Capital Expenditures in any fiscal year will not exceed:




	 	 	 	 	 
	Fiscal Year	 	 
	
    
    2006

    	 	$	600 million	 
	
    
    2007

    	 	$	600 million	 
	
    
    2008

    	 	$	650 million	 
	
    
    2009

    	 	$	700 million	 
	
    
    2010

    	 	$	700 million	 
	
    
    2011

    	 	$	700 million	 




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Unused amounts may be carried-over for one year in an amount of
up to $50 million.




ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES



     
SECTION 9.01 Events of Default. Any of the
following shall constitute an Event of Default:






		
	 	     
    (a) Non-Payment. The Borrowers or any other Credit
    Party fails to pay (i) when and as required to be paid
    herein, any amount of principal of any Loan or any L/ C
    Obligation, or (ii) within five Business Days after the
    same becomes due, any interest on any Loan or on any L/
    C Obligation, or any commitment or other fee due hereunder,
    or (iii) within five Business Days after the same becomes
    due, any other amount payable hereunder or under any other
    Credit Document; or
	 
	 	     
    (b) Specific Covenants. The Borrowers fails to
    perform or observe any term, covenant or agreement contained in
    any of Section 7.02 or 7.03, or
    Article VIII; or
	 
	 	     
    (c) Other Defaults. Any Credit Party fails to
    perform or observe any other covenant or agreement (not
    specified in subsection (a) or (b) above)
    contained in any Credit Document on its part to be performed or
    observed (subject to applicable grace or cure periods, if any)
    and such failure continues unremedied for a period of at least
    thirty days after the earlier of a responsible officer of a
    Credit Party becoming aware of such default or notice thereof by
    the Administrative Agent; or
	 
	 	     
    (d) Representations and Warranties. Any
    representation, warranty, certification or statement of fact
    made or deemed made by or on behalf of the Borrowers or any
    other Credit Party herein, in any other Credit Document, or in
    any document delivered in connection herewith or therewith shall
    prove to be false or misleading in any material respect when
    made or deemed made; or
	 
	 	     
    (e) Cross-Default. (i) Any member of the
    Consolidated Group (A) fails to make any payment when due
    (whether by scheduled maturity, required prepayment,
    acceleration, demand, or otherwise) in respect of any
    Indebtedness or Support Obligations (other than Indebtedness
    hereunder and Indebtedness under Swap Contracts) having an
    aggregate principal amount (including undrawn committed or
    available amounts and including amounts owing to all creditors
    under any combined or syndicated credit arrangement) of more
    than $50 million, or (B) fails to observe or perform
    any other agreement or condition relating to any such
    Indebtedness or Support Obligations or contained in any
    instrument or agreement evidencing, securing or relating
    thereto, or any other event occurs, the effect of which default
    or other event is to cause, or to permit the holder or holders
    of such Indebtedness or the beneficiary or beneficiaries of such
    Support Obligations (or a trustee or agent on behalf of such
    holder or holders or beneficiary or



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    beneficiaries) to cause, with the giving of notice if required,
    such Indebtedness to be demanded or to become due or to be
    repurchased, prepaid, defeased or redeemed (automatically or
    otherwise), or an offer to repurchase, prepay, defease or redeem
    such Indebtedness to be made, prior to its stated maturity, or
    such Support Obligations to become payable or cash collateral in
    respect thereof to be demanded; or (ii) there occurs under
    any Swap Contract an Early Termination Date (as defined in such
    Swap Contract) resulting from (A) any event of default
    under such Swap Contract as to which the Borrowers or any
    Subsidiary is the Defaulting Party (as defined in such Swap
    Contract) or (B) any Termination Event (as so defined)
    under such Swap Contract as to which the Borrowers or any
    Subsidiary is an Affected Party (as so defined) and, in either
    event, the Swap Termination Value owed by the Borrowers or such
    Subsidiary as a result thereof is greater than $50 million;
    or






		
	 	     
    (f) Insolvency Proceedings, Etc. Any member of the
    Consolidated Group (other than any Immaterial Foreign
    Subsidiary) institutes or consents to the institution of any
    proceeding under any Debtor Relief Law, or makes an assignment
    for the benefit of creditors; or applies for or consents to the
    appointment of any receiver, trustee, custodian, conservator,
    liquidator, rehabilitator or similar officer for it or for all
    or any material part of its property; or any receiver, trustee,
    custodian, conservator, liquidator, rehabilitator or similar
    officer is appointed without the application or consent of such
    Person and the appointment continues undischarged or unstayed
    for sixty calendar days; or any proceeding under any Debtor
    Relief Law relating to any such Person or to all or any material
    part of its property is instituted without the consent of such
    Person and continues undismissed or unstayed for sixty calendar
    days, or an order for relief is entered in any such proceeding;
    or
	 
	 	     
    (g) Inability to Pay Debts; Attachment. (i) Any
    member of the Consolidated Group (other than any Immaterial
    Foreign Subsidiary) becomes unable or admits in writing its
    inability or fails generally to pay its debts as they become
    due, or (ii) any writ or warrant of attachment or execution
    or similar process is issued or levied against all or any
    material part of the property of any such Person and is not
    released, vacated or fully bonded within thirty days after its
    issue or levy; or
	 
	 	     
    (h) Judgments. There is entered against member of
    the Consolidated Group (i) a final judgment or order for
    the payment of money in an aggregate amount exceeding
    $50 million (to the extent not covered by independent
    third-party insurance as to which the insurer does not dispute
    coverage) or (ii) any one or more non-monetary final
    judgments that have, or could reasonably be expected to have,
    individually or in the aggregate, a Material Adverse Effect and,
    in either case, (A) such judgment or order is not paid,
    bonded or otherwise discharged within thirty days of entry
    thereof and enforcement proceedings are commenced by any
    creditor upon such judgment or order, or (B) there is a
    period of thirty consecutive days during which a stay of
    enforcement of such judgment, by reason of a pending appeal or
    otherwise, is not in effect (it being understood and agreed for
    the purposes of clarification that any judgment or order entered
    into in connection with the W.R. Grace bankruptcy that relates
    to the settlement



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    of the fraudulent transfer and related claims against members of
    the Consolidated Group is not included within the scope of this
    provision); or






		
	 	     
    (i) ERISA. (i) An ERISA Event occurs with
    respect to a Pension Plan or Multiemployer Plan that has
    resulted or could reasonably be expected to result in liability
    of the Borrowers under Title IV of ERISA to the Pension
    Plan, Multiemployer Plan or the PBGC in an aggregate amount in
    excess of $50 million, or (ii) the Borrowers or any
    ERISA Affiliate fails to pay when due, after the expiration of
    any applicable grace period, any installment payment with
    respect to its withdrawal liability under Section 4201 of
    ERISA under a Multiemployer Plan in an aggregate amount in
    excess of $50 million; or
	 
	 	     
    (j) Invalidity of Credit Documents. Any Credit
    Document, at any time after its execution and delivery and for
    any reason other than as expressly permitted hereunder or
    satisfaction in full of all the Obligations, ceases to be in
    full force and effect; or any Credit Party or any other Person
    contests in any manner the validity or enforceability of any
    Credit Document; or any Credit Party denies that it has any or
    further liability or obligation under any Credit Document, or
    purports to revoke, terminate or rescind any Credit Document;
	 
	 	     
    (k) Exclusion Event. There occurs any Exclusion
    Event that has, or could reasonably be expected to have, a
    Material Adverse Effect; or
	 
	 	     
    (l) Change of Control. There occurs any Change of
    Control.



     
SECTION 9.02 Remedies Upon Event of Default. If any
Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:






		
	 	     
    (a) declare the commitments of the Lenders to make Loans
    hereunder and the obligation of the L/ C Issuer to make L/ C
    Credit Extensions to be terminated, whereupon such commitments
    and obligation shall be terminated;
	 
	 	     
    (b) declare the unpaid principal amount of all outstanding
    Loans hereunder, all interest accrued and unpaid thereon, and
    all other amounts owing or payable hereunder or under any other
    Credit Document to be immediately due and payable, without
    presentment, demand, protest or other notice of any kind, all of
    which are hereby expressly waived by the Borrowers;
	 
	 	     
    (c) require that the Borrowers Cash Collateralize the L/ C
    Obligations (in an amount equal to the Dollar Equivalent of the
    Outstanding Amount thereof); and
	 
	 	     
    (d) exercise on behalf of itself and the Lenders all rights
    and remedies available to it and the Lenders under the Credit
    Documents or applicable law;



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    provided, however, that upon the occurrence of an event
    under Section 9.01(f), the obligation of each Lender
    to make Loans and any obligation of the L/ C Issuer to make L/ C
    Credit Extensions shall automatically terminate, the unpaid
    principal amount of all outstanding Loans and all interest and
    other amounts as aforesaid shall automatically become due and
    payable, and the obligation of the Borrowers to Cash
    Collateralize the L/ C Obligations as aforesaid shall
    automatically become effective, in each case without further act
    of the Administrative Agent or any Lender.



     
SECTION 9.03 Application of Funds. After the
exercise of remedies provided for in Section 9.02
(or after the Loans have automatically become immediately due
and payable and the L/ C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso
to Section 9.02), any amounts received on account of
the Obligations shall be applied by the Administrative Agent
(or, as applicable, the Collateral Agent) in the following order:






		
	 	     
    First, pro rata to the payment of that portion of the
    Obligations hereunder and under the Term Loan Credit Agreement
    constituting fees, indemnities, expenses and other amounts
    (including Attorney Costs and amounts payable under
    Article III) payable to the Collateral Agent in its
    capacity as such, including all amounts incurred in the
    execution of its duties as collateral agent and the exercise of
    rights and remedies in respect of the collateral;
	 
	 	     
    Second, pro rata to payment of that portion of the
    Obligations hereunder and under the Term Loan Credit Agreement
    constituting fees, indemnities, expenses and other amounts
    (including Attorney Costs and amounts payable under
    Article III) payable to the Administrative Agent in
    its capacity as such;
	 
	 	     
    Third, pro rata to payment of that portion of the
    Obligations hereunder and under the Term Loan Credit Agreement
    constituting fees, indemnities and other amounts (other than
    principal and interest) payable to the Lenders (including
    Attorney Costs and amounts payable under
    Article III), ratably among them in proportion to
    the amounts described in this clause payable to them;
	 
	 	     
    Fourth, pro rata to payment of that portion of the
    Obligations hereunder and under the Term Loan Credit Agreement
    constituting accrued and unpaid interest on the Loans and L/ C
    Borrowings and fees, premiums and scheduled periodic payments,
    and any interest accrued thereon, due under any Swap Contract
    between any Credit Party and any Lender, or any Affiliate of a
    Lender, to the extent such Swap Contract is permitted by
    Section 8.01(d), ratably among the Lenders (and, in
    the case of such Swap Contracts, Affiliates of Lenders) in
    proportion to the respective amounts described in this clause
    Fourth held by them;
	 
	 	     
    Fifth, pro rata to payment of that portion of the
    Obligations hereunder and under the Term Loan Credit Agreement
    constituting unpaid principal of the Loans and L/ C Borrowings
    and breakage, termination or other payments, and any interest
    accrued thereon, due under any Swap Contract between any Credit
    Party and any Lender, or any Affiliate of a Lender, to the
    extent such Swap Contract is permitted by
    Section 8.01(d),



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    and to Cash Collateralize that portion of L/ C Obligations
    comprised of the aggregate undrawn amount of Letters of Credit,
    ratably among the Lenders (and, in the case of such Swap
    Contracts, Affiliates of Lenders) in proportion to the
    respective amounts described in this clause Fifth held by
    them; and
	 
	 	
    Last, the balance, if any, after all of the Obligations
    hereunder and under the Term Loan Credit Agreement have been
    indefeasibly paid in full, to the Borrowers or as otherwise
    required by Law.



     
Subject to Section 2.08(c), amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to clause Fifthabove shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters
of Credit have either been fully drawn or expired, such
remaining amount shall be applied to the other Obligations, if
any, in the order set forth above.




ARTICLE X




ADMINISTRATIVE AGENT



     
SECTION 10.01 Appointment and Authorization of
Administrative Agent and Collateral Agent.



     
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action
(including taking action to raise a Spanish notarial deed
(documento publico) in connection with any Credit
Document and any Assignment and Assumption Agreement) on its
behalf under the provisions of this Credit Agreement and each
other Credit Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of
this Credit Agreement or any other Credit Document, together
with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Credit Document, the
Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit
Agreement or any other Credit Document or otherwise exist
against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term
“agent” herein and in the other Credit Documents with
reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead, such term
is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.



     
(b) Each Lender hereby irrevocably appoints, designates and
authorizes the Collateral Agent to take such action (including
taking action to raise a Spanish notarial deed (documento
publico) in connection with any Credit Document and any
Assignment and Assumption Agreement) on its behalf under the
provisions of this Credit Agreement and each other Credit



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Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Credit
Agreement or any other Credit Document, together with such
powers as are reasonably incidental thereto. The Collateral
Agent shall act on behalf of the Lenders with respect to any
Collateral and the Collateral Documents, and the Collateral
Agent shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this
Article X with respect to any acts taken or
omissions suffered by the Collateral Agent in connection with
the Collateral or the Collateral Documents as fully as if the
term “Administrative Agent” as used in this
Article X and in the definition of
“Agent-Related Person” included the Collateral Agent
with respect to such acts or omissions, and (ii) as
additionally provided herein and in the other Credit Documents
with respect to the Collateral Agent.



     
(c) The L/ C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/ C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative
Agent in this Article X with respect to any acts
taken or omissions suffered by the L/ C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by
it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in this Article X
and in the definition of “Agent-Related Person”
included the L/ C Issuer with respect to such acts or omissions,
and (ii) as additionally provided herein with respect to
the L/ C Issuer.



     
(d) For so long as loans and obligations shall remain
outstanding under this Credit Agreement and the Term Loan Credit
Agreement and until the commitments hereunder and thereunder
shall have expired or been terminated, the Administrative Agent
under this Credit Agreement, the Administrative Agent under the
Term Loan Credit Agreement and the Collateral Agent shall be the
same institution and if Bank of America shall resign or be
replaced as Administrative Agent under either this Credit
Agreement or the Term Loan Credit Agreement or as Collateral
Agent, then it shall be replaced with its successor institution
in all such capacities.



     
(e) Each of the Administrative Agent, the Collateral Agent
and the L/ C Issuer shall be released from the restrictions of
Section 181 of the German Civil Code (BGB,
Bürgerliches Gesetzbuch) and shall be authorized to
delegate its power of attorney granted hereunder including the
release from the restrictions of Section 181 of the German
Civil Code.



     
SECTION 10.02 Delegation of Duties. The
Administrative Agent may execute any of its duties under this
Credit Agreement or any other Credit Document by or through
agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel and other consultants or experts concerning
all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.



     
SECTION 10.03 Liability of Administrative Agent. No
Agent-Related Person shall (a) be liable for any action
taken or omitted to be taken by any of them under or in
connection with this Credit Agreement or any other Credit
Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any
recital,



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statement, representation or warranty made by any Credit Party
or any officer thereof, contained herein or in any other Credit
Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Credit
Agreement or any other Credit Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of
this Credit Agreement or any other Credit Document, or for any
failure of any Credit Party or any other party to any Credit
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or
conditions of, this Credit Agreement or any other Credit
Document, or to inspect the properties, books or records of any
Credit Party or any Affiliate thereof.



     
SECTION 10.04 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Credit Party), independent
accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Credit Document
unless it shall first receive such advice or concurrence of the
Required Lenders (or such greater number of Lenders as may be
expressly required hereunder in any particular instance) as it
deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit
Agreement or any other Credit Document in accordance with a
request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders.



     
SECTION 10.05 Notice of Default. The Administrative
Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and
fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall
have received written notice from a Lender or the Borrowers
referring to this Credit Agreement, describing such Default or
Event of Default and stating that such notice is a “notice
of default.” The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default or
Event of Default as may be directed by the requisite Lenders in
accordance herewith; provided, however, that unless and
until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.



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SECTION 10.06 Credit Decision; Disclosure of Information
by Administrative Agent. Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to
it, and that no act by the Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate
thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents
to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its
own decision to enter into this Credit Agreement and to extend
credit to the Borrowers and the other Credit Parties hereunder.
Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrowers and the other
Credit Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects,
operations, property, financial and other condition or
creditworthiness of any of the Credit Parties or any of their
respective Affiliates that may come into the possession of any
Agent-Related Person.



     
SECTION 10.07 Indemnification of Administrative
Agent. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on
behalf of any Credit Party and without limiting the obligation
of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related
Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court
of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful
misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders (or such
greater number of Lenders as may be expressly required hereunder
in any particular instance) shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Credit Agreement, any
other Credit Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent
is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive
termination of the Aggregate



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Commitments, the payment of all other Obligations and the
resignation of the Administrative Agent.



     
SECTION 10.08 Administrative Agent in its
Individual Capacity. Bank of America and its Affiliates may
make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Credit Parties
and their respective Affiliates as though Bank of America were
not the Administrative Agent or the L/ C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America
or its Affiliates may receive information regarding any Credit
Party or its Affiliates (including information that may be
subject to confidentiality obligations in favor of such Credit
Party or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information
to them. With respect to its Loans, Bank of America shall have
the same rights and powers under this Credit Agreement as any
other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/ C Issuer, and the
terms “Lender” and “Lenders” include Bank of
America in its individual capacity.



     
SECTION 10.09 Successor Administrative Agent.
Subject to the provisions of Section 10.01(d), the
Administrative Agent may voluntarily resign as Administrative
Agent upon thirty days’ notice to the Lenders, and shall,
upon thirty days’ notice to the Administrative Agent,
resign at the request, with or without cause, of the Required
Lenders (provided at all times other than during the existence
of an Event of Default, such request for resignation by the
Required Lenders shall require the written consent of the
Borrowers, which consent shall not be unreasonably withheld or
delayed) within thirty days of its receipt of such request for
resignation; provided that any such resignation by Bank
of America shall also constitute its resignation as Collateral
Agent, L/ C Issuer and Swing Line Lender. If the Administrative
Agent resigns under this Credit Agreement, the Required Lenders
shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent
shall be consented to by the Borrowers at all times other than
during the existence of an Event of Default (which consent of
the Borrowers shall not be unreasonably withheld or delayed). If
no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent,
the Administrative Agent may appoint, after consulting with the
Lenders and the Borrowers, a successor administrative agent from
among the Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent,
Collateral Agent, L/ C Issuer and Swing Line Lender and such
respective terms shall mean such successor administrative agent,
collateral agent, Letter of Credit issuer and swing line lender,
and the retiring Administrative Agent’s appointment, powers
and duties in such capacities shall be terminated without any
other or further act or deed on its behalf. After any retiring
Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this
Article X and Sections 11.04 and
11.05 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent
under this Credit Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the
date thirty days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become
effective



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and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.



     
SECTION 10.10 Administrative Agent May File Proofs
of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative
Agent (irrespective of whether the principal of any Loan or L/ C
Obligation shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the
Borrowers) shall be entitled and empowered to, and upon the
request of the Required Lenders shall, by intervention in such
proceeding or otherwise:






		
	 	     
    (a) file and prove a claim for the whole amount of the
    principal and interest owing and unpaid in respect of the Loans,
    L/ C Obligations and all other Obligations (other than
    obligations under Swap Contracts to which the Administrative
    Agent is not a party) that are owing and unpaid and to file such
    other documents as may be necessary or advisable in order to
    have the claims of the Lenders and the Administrative Agent
    (including any claim for the reasonable compensation, expenses,
    disbursements and advances of the Lenders and the Administrative
    Agent and their respective agents and counsel and all other
    amounts due the Lenders and the Administrative Agent under
    Sections 2.04 and 11.04) allowed in such
    judicial proceeding; and
	 
	 	     
    (b) collect and receive any monies or other property
    payable or deliverable on any such claims and to distribute the
    same; and any custodian, receiver, assignee, trustee,
    liquidator, sequestrator or other similar official in any such
    judicial proceeding is hereby authorized by each Lender to make
    such payments to the Administrative Agent and, in the event that
    the Administrative Agent shall consent to the making of such
    payments directly to the Lenders, to pay to the Administrative
    Agent any amount due for the reasonable compensation, expenses,
    disbursements and advances of the Administrative Agent and its
    agents and counsel, and any other amounts due the Administrative
    Agent under Sections 2.04 and 11.04.



     
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such
proceeding.



     
SECTION 10.11 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Guarantor from
its obligations under the Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder and
to release any Collateral if such release is appropriate as a
result of a transaction permitted hereunder.



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Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative
Agent’s authority to release any Guarantor from its
obligations hereunder pursuant to this Section 10.11.



     
SECTION 10.12 Other Agents; Arrangers and
Managers. None of the Lenders or other Persons identified on
the facing page or signature pages of this Credit Agreement as a
“co-syndication agent”, “co-documentation
agent”, “joint lead arranger” or “book
manager” shall have any right, power, obligation,
liability, responsibility or duty under this Credit Agreement
other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any
of the Lenders or other Persons so identified in deciding to
enter into this Credit Agreement or in taking or not taking
action hereunder.




ARTICLE XI




MISCELLANEOUS



     
SECTION 11.01 Amendments, Etc. No amendment or
waiver of, or any consent to deviation from, any provision of
this Credit Agreement or any other Credit Document shall be
effective unless in writing and signed by the Borrowers or the
applicable Credit Parties, as the case may be, and the Required
Lenders and acknowledged by the Administrative Agent, and each
such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is
given; provided, however, that:






		
	 	     
    (a) unless also signed by each Lender directly affected
    thereby, no such amendment, waiver or consent shall:






		
	 	     
    (i) extend or increase the Commitment of any Lender (or
    reinstate any Commitment terminated pursuant to Section
    9.02), it being understood that the waiver of an Event of
    Default or a mandatory reduction or a mandatory prepayment in
    Commitments shall not be considered an increase in Commitments,
	 
	 	     
    (ii) waive non-payment or postpone any date fixed by this
    Credit Agreement or any other Credit Document for any payment of
    principal, interest, fees or other amounts due to any Lender
    hereunder or under any other Credit Document,
	 
	 	     
    (iii) reduce the principal of, or the rate of interest
    specified herein on, any Loan or L/ C Borrowing, or any fees or
    other amounts payable hereunder or under any other Credit
    Document; provided, however, that only the consent of the
    Required Lenders shall be necessary (A) to amend the
    definition of “Default Rate” or to waive any
    obligation of the Borrowers to pay interest at the Default Rate
    or (B) to amend any financial covenant hereunder (or any
    defined term used



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    therein) even if the effect of such amendment would be to reduce
    the rate of interest on any Loan or L/C Borrowing or to
    reduce any fee payable hereunder,






		
	 	     
    (iv) change any provision of this Credit Agreement
    regarding pro rata sharing or pro rata funding with respect to
    (A) the making of advances (including participations),
    (B) the manner of application of payments or prepayments of
    principal, interest, or fees, (C) the manner of application
    of reimbursement obligations from drawings under Letters of
    Credit, or (D) the manner of reduction of commitments and
    committed amounts,
	 
	 	     
    (v) change any provision of this
    Section 11.01(a) or the definition of “Required
    Lenders” or any other provision hereof specifying the
    number or percentage of Lenders required to amend, waive or
    otherwise modify any rights hereunder or make any determination
    or grant any consent hereunder,
	 
	 	     
    (vi) release all or substantially all of the Guarantors
    from their obligations hereunder (other than as provided herein
    or as appropriate in connection with transactions permitted
    hereunder), or
	 
	 	     
    (vii) release all or substantially all of the Collateral
    (other than as provided herein or as appropriate in connection
    with transactions permitted hereunder);






		
	 	     
    (b) unless also signed by the Required Revolving Lenders,
    no such amendment, waiver or consent shall:






		
	 	     
    (i) waive any Default or Event of Default for purposes of
    Section 5.02,
	 
	 	     
    (ii) amend or waive any mandatory prepayment on the
    Revolving Obligations under Section 2.06(b) or the
    manner of application thereof to the Revolving Obligations under
    Section 2.06(c),
	 
	 	     
    (iii) amend or waive the provisions of
    Section 5.02 (Conditions to all Credit Extensions),
    Section 7.12(Joinder of Additional Guarantors),
    Article VIII (Negative Covenants),
    Article IX (Events of Default and Remedies), this
    Section 11.01(b) or the definition of “Required
    Revolving Lenders”;






		
	 	     
    (c) unless also signed by the Required Tranche A Term
    Lenders, no such amendment, waiver or consent shall:






		
	 	     
    (i) amend or waive any mandatory prepayment on the
    Tranche A Term Loan under Section 2.06(b) or
    the manner of application thereof to the Tranche A Term
    Loan under Section 2.06(c), or



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    (ii) amend or waive the provisions of this Section
    11.01(c) or the definition of “Required Tranche A
    Term Lenders”;






		
	 	     
    (d) unless also signed by the Required Tranche B Term
    Lenders, no such amendment, waiver or consent shall:






		
	 	     
    (i) amend or waive any mandatory prepayment on the
    Tranche B Term Loan under Section 2.06(b) or
    the manner of application thereof to the Tranche B Term
    Loan under Section 2.06(c), or
	 
	 	     
    (ii) amend or waive the provisions of this Section
    11.01(d) or the definition of “Required Tranche B
    Term Lenders”;






		
	 	     
    (e) unless also signed by the Required Tranche C Term
    Lenders, no such amendment, waiver or consent shall:






		
	 	     
    (i) amend or waive any mandatory prepayment on the
    Tranche C Term Loan under Section 2.06(b) or
    the manner of application thereof to the Tranche C Term
    Loan under Section 2.06(c), or
	 
	 	     
    (ii) amend or waive the provisions of this Section
    11.01(e) or the definition of “Required Tranche C
    Term Lenders”;






		
	 	     
    (f) unless also signed by Lenders holding in the aggregate
    more than fifty percent (50%) of each other term loan
    established under the Incremental Loan Facilities (excluding for
    the purposes of such determination the amounts held by any
    Defaulting Lender), no amendment, waiver or consent shall:






		
	 	     
    (i) amend or waive any mandatory prepayment on such term
    loan under Section 2.06(b) or the manner of
    application thereof to any such term loan under
    Section 2.06(c); or
	 
	 	     
    (ii) amend or waive the provisions of this Section
    11.01(f).






		
	 	     
    (g) unless also signed by the L/C Issuer, no such
    amendment, waiver or consent shall affect the rights or duties
    of the L/C Issuer under this Credit Agreement or any Letter
    of Credit Application relating to any Letter of Credit issued or
    to be issued by it;
	 
	 	     
    (h) unless also signed by the Swing Line Lender, no such
    amendment, waiver or consent shall affect the rights or duties
    of the Swing Line Lender under this Credit Agreement;






		
	 	     
    (i) unless also signed by the Administrative Agent, no such
    amendment, waiver or consent shall affect the rights or duties
    of the Administrative Agent under this Credit Agreement or any
    other Credit Document and unless also signed by the Collateral



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    Agent, no such amendment, waiver or consent shall affect the
    rights or duties of the Collateral Agent under this Credit
    Agreement or any other Credit Document.




Notwithstanding any provision to the contrary contained herein,
(i) no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except
that the Commitment of such Lender may not be increased or
extended without the consent of such Lender, (ii) each
Lender is entitled to vote as such Lender sees fit on any
bankruptcy or insolvency reorganization plan that affects the
Loans, (iii) each Lender acknowledges that the provisions
of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein, (iv) the
Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency
proceeding, (v) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the
parties thereto and (vi) the Borrowers may increase the
Applicable Percentage for the Tranche B Term Loan on notice
to the Administrative Agent without the consent of the Required
Lenders or the Tranche B Lenders in connection with the
establishment of a Tranche C Term Loan (or other term loan
established under the Incremental Loan Facilities under
Section 2.01(j)).



     
SECTION 11.02 Notices and Other Communications;
Facsimile Copies.



     
(a) General. Unless otherwise expressly provided
herein, all notices and other communications provided for
hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed (unless
such notice is to FMCAG or any Foreign Subsidiary of FMCAG),
faxed or delivered, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be
made, to the address, facsimile number, electronic mail address
or telephone number specified for the applicable party on
Schedule 11.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties;
provided that all notices given to FMCAG hereunder shall
simultaneously be given to FMCH. All such notices and other
communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant
party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party
hereto; (B) with respect to any Domestic Credit Party, if
delivered by mail, four Business Days after deposit in the
mails, by registered or certified mail, postage prepaid;
(C) if delivered by facsimile, when sent and receipt has
been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications
to the Administrative Agent, the L/C Issuer and the Swing
Line Lender pursuant to Article II shall not be
effective until actually received by such Person. In no event
shall a voicemail message be effective as a notice,
communication or confirmation hereunder.



     
(b) Effectiveness of Facsimile Documents and
Signatures. Credit Documents may be transmitted and/or
signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on
all Credit Parties, the Administrative Agent and the Lenders.
The Administrative Agent may also require that any such
documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of
any facsimile document or signature.



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(c) Limited Use of Electronic Mail. With respect to
any notices or deliveries required hereunder, electronic mail
and internet and intranet websites may be used only to
distribute routine communications, such as financial statements
and other information as provided in Section 7.02,
and to distribute Credit Documents for execution by the parties
thereto, and may not be used for any other purpose.



     
(d) The Platform. THE PLATFORM IS PROVIDED “AS
IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS
OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent, Arrangers
or any of its Agent-Related Persons (collectively, the
“Agent Parties”) have any liability to any
Borrower, any Lender, the L/ C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of any
Borrower’s or the Administrative Agent’s transmission
of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party;
provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, the
L/ C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to
direct or actual damages).



     
(e) Reliance by Administrative Agent and Lenders.
The Administrative Agent and the Lenders shall be entitled to
rely and act upon any notices (including telephonic Loan Notices
and Swing Line Loan Notices) purportedly given by or on behalf
of the Borrowers even if (i) such notices were not made in
a manner provided herein, were incomplete or were not preceded
or followed by any other form of notice provided herein, or
(ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrowers shall
indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or
on behalf of the Borrowers. All telephonic notices to and other
communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby
consents to such recording.



     
SECTION 11.03 No Waiver; Cumulative Remedies. No
failure by any Lender or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights,



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remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.



     
SECTION 11.04 Attorney Costs and Expenses. The
Borrowers agree (a) to pay directly to the provider thereof
or reimburse the Administrative Agent for all reasonable costs
and expenses incurred in connection with the development,
preparation, negotiation and execution of this Credit Agreement
and the other Credit Documents, or preservation of any rights or
remedies under this Credit Agreement or the other Credit
Documents, and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all
Attorney Costs, and (b) if an Event of Default has occurred
and is continuing, to pay or reimburse the Administrative Agent
and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Credit
Agreement or the other Credit Documents (including all such
costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public
accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this
Section 11.04 shall be payable within thirty days
after demand therefor. The agreements in this Section shall
survive the termination of the Aggregate Commitments and
repayment of all other Obligations.



     
SECTION 11.05 Indemnification by the Borrowers.
Whether or not the transactions contemplated hereby are
consummated, the Borrowers shall indemnify and hold harmless
each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents,
trustees, advisors and attorneys-in-fact (collectively the
“Indemnitees”) from and against any and all
liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature
whatsoever (subject to the provisions of
Section 3.01 with respect to Taxes and Other Taxes)
that may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising
out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Credit
Document or any other agreement, letter or instrument delivered
in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby,
(b) any Commitment, Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by
the L/ C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand
do not strictly comply with the terms of such Letter of Credit)
or (c) any actual or threatened claim, litigation,
investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending
or threatened claim, investigation, litigation or proceeding)
and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the “Indemnified
Liabilities”); provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that
such liabilities,



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obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. No
Indemnitee shall be liable for any damages arising from the use
by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in
connection with this Credit Agreement, and no Indemnitee shall
have any liability for any indirect or consequential damages
relating to this Credit Agreement or any other Credit Document
or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All
amounts due under this Section 11.05 shall be
payable within thirty days after demand therefor. The agreements
in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.



     
SECTION 11.06 Payments Set Aside. To the extent that
any payment by or on behalf of the Borrowers is made to the
Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment
or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such
set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by
the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate from time to time in
effect.



     
SECTION 11.07 Successors and Assigns.



     
(a) The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except
that the Borrowers may not assign or otherwise transfer any of
their rights or obligations hereunder without the prior written
consent of each Lender (other than as provided in
Sections 2.16 and 2.17) and no Lender may
assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) or
(g) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void);
provided that no such assignment, participation or
transfer shall, without the consent of FMCAG, require FMCAG to
file a registration statement with the SEC or apply to qualify
such assignment, participation or other transfer under the
securities laws of any state. Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the
extent provided in



136







 




subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this
Credit Agreement.



     
(b) Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans (including for purposes
of this subsection (b), participations in L/ C
Obligations and in Swing Line Loans) at the time owing to it);
provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and
Assumption Agreement with respect to such assignment is
delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption
Agreement, as of the Trade Date, shall not be less than
$5 million, in the case of Revolving Loans, and
$1 million, in the case of Term Loans, unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, FMCAG otherwise consents (each such
consent not to be unreasonably withheld or delayed),
provided that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an
Assignee Group to a single assignee (or to an Eligible Assignee
and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum
amount has been met; (ii) any assignment of a Commitment
must be approved by the Administrative Agent and, in the case of
any assignment of a Revolving Commitment, the L/ C Issuers and
the Swing Line Lenders (each such approval not to be
unreasonably withheld or delayed) unless the Person that is the
proposed assignee is itself a Lender or an Affiliate of a Lender
(whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption Agreement, together with a
processing and recordation fee as set forth on the attached
Schedule 11.07 payable by the assigning Lender or
the Eligible Assignee, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption
Agreement, the Eligible Assignee thereunder shall be a party to
this Credit Agreement and, to the extent of the interest
assigned by such Assignment and Assumption Agreement, have the
rights and obligations of a Lender under this Credit Agreement,
and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement,
be released from its obligations under this Credit Agreement
(and, in the case of an Assignment and Assumption Agreement
covering all of the assigning Lender’s rights and
obligations under this Credit Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05,
11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such
assignment). Upon request of the assignee Lender, the Borrowers
shall execute and deliver a Note to such Lender. Any assignment
or transfer by a Lender of rights or obligations under this
Credit Agreement that does not comply with this subsection shall
be treated for purposes of this Credit Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.



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(c) The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the
Administrative Agent’s Office a copy of each Assignment and
Assumption Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/ C
Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Credit Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any
reasonable time and from time to time upon reasonable prior
notice.



     
(d) Any Lender may at any time, without the consent of, or
notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or the
Borrowers or any of the Borrowers’ Affiliates or
Subsidiaries) (each, a “Participant”) in all or
a portion of such Lender’s rights and/or obligations under
this Credit Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s
participations in L/ C Obligations and/or Swing Line Loans)
owing to it); provided that (i) such Lender’s
obligations under this Credit Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and
(iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and
obligations under this Credit Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to
enforce this Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit
Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other
modification that extends the time for, reduces the amount or
alters the application of proceeds with respect to such
obligations and payments required thereon that directly affects
such Participant. Subject to subsection (e) of this
Section, the Borrowers agree that each Participant shall be
entitled to the benefits of and subject to the obligations of a
Lender set forth in Sections 3.01, 3.04 and
3.05 and shall be subject to replacement in accordance
with Section 11.16 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted
by Law, each Participant also shall be entitled to the benefits
of and subject to the obligations of a Lender set forth in
Section 11.09 as though it were a Lender,
provided such Participant agrees to be subject to
Section 2.15 as though it were a Lender.



     
(e) A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04
than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant. A
Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of
Section 3.01 unless the Borrowers are notified of
the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply and complies
with Section 11.15 as though it were a Lender.



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(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit
Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.



     
(g) Notwithstanding anything to the contrary contained
herein, any Lender that is a Fund may (without notice to or the
consent of the Administrative Agent or the Borrowers) create a
security interest in all or any portion of the Loans owing to it
(and its Note, if any) to the trustee for holders of obligations
owed, or securities issued, by such Fund as security for such
obligations or securities, provided that unless and until
such trustee actually becomes a Lender in compliance with the
other provisions of this Section 11.07, (i) no
such pledge shall release the pledging Lender from any of its
obligations under the Credit Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a
Lender under the Credit Documents even though such trustee may
have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.



     
(h) The words “execution”, “signed”,
“signature”, and words of like import in any
Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic
Transactions Act.



     
(i) Notwithstanding anything to the contrary contained
herein, (i) if any Domestic Swing Line Lender at any time
assigns all of its Commitment and Loans pursuant to
subsection (b) above, such Swing Line Lender may, upon
thirty days’ notice to the Borrowers, resign as a Domestic
Swing Line Lender, (ii) if at any time any Foreign Swing
Line Lender assigns all of its Commitment and Loans pursuant to
subsection (b) above, it may, upon thirty days’
notice to the Borrowers, resign as Foreign Swing Line Lender and
(iii) if any L/ C Issuer at any time assigns all of its
Commitment and Loans pursuant to subsection (b) above,
such L/ C Issuer may, upon thirty days’ notice to the
Borrowers and the Lenders, resign as an L/ C Issuer. If any L/ C
Issuer resigns as an L/ C Issuer, it shall retain all the rights
and obligations of an L/ C Issuer hereunder with respect to all
Letters of Credit issued by it outstanding as of the effective
date of its resignation as an L/ C Issuer and all L/ C
Obligations with respect thereto (including the right to require
the Lenders to make Revolving Loans or fund risk participations
in Unreimbursed Amounts pursuant to
Section 2.08(c)). If any Domestic Swing Line Lender
resigns as a Domestic Swing Line Lender, it shall retain all the
rights of a Domestic Swing Line Lender provided for hereunder
with respect to Domestic Swing Line Loans made by it and
outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Revolving
Loans or fund risk participations in outstanding Domestic Swing
Line Loans made by it pursuant to Section 2.09(b).
In the event of any such resignation as Domestic Swing Line
Lender, the Borrowers shall be entitled to appoint from among
the Lenders a successor Domestic



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Swing Line Lender hereunder; provided, however, that no
Lender shall have any obligation to accept such appointment as
successor Domestic Swing Line Lender, and no failure by the
Borrowers to appoint any such successor shall affect the
resignation of such Domestic Swing Line Lender. If any Foreign
Swing Line Lender resigns as Foreign Swing Line Lender, it shall
retain all the rights of the Foreign Swing Line Lender provided
for hereunder with respect to Foreign Swing Line Loans made by
it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Revolving
Loans or fund risk participations in outstanding Foreign Swing
Line Loans pursuant to Section 2.10(b). In the event
of any such resignation as Foreign Swing Line Lender, the
Borrowers shall be entitled to appoint from among the Lenders a
successor Foreign Swing Line Lender hereunder; provided,
however, that no Lender shall have any obligation to accept such
appointment as successor Foreign Swing Line Lender, and no
failure by the Borrowers to appoint any such successor shall
affect the resignation of such Foreign Swing Line Lender.



     
SECTION 11.08 Confidentiality. Each of the
Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information, except that Information may
be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal
counsel and other advisors, in connection with matters relating
to the credit relationship with members of the Consolidated
Group and/or the administration of the Credit Documents (it
being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such
Information and instructed to keep such Information
confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar
legal process; (d) to any other party to this Credit
Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to
this Credit Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any
Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or
obligations under this Credit Agreement or (ii) any direct
or indirect contractual counterparty or prospective counterparty
(or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit
derivative transaction relating to obligations of the Credit
Parties; (g) with the consent of the Borrowers; (h) to
the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the
Borrowers; (i) to the National Association of Insurance
Commissioners or any other similar organization; or (j) to
any nationally recognized rating agency that requires access to
a Lender’s or an Affiliate’s investment portfolio in
connection with ratings issued with respect to such Lender or
Affiliate. In addition, the Administrative Agent and the Lenders
may disclose the existence of this Credit Agreement and
non-confidential information about this Credit Agreement to
market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and
the Lenders in connection with the administration and management
of this Credit Agreement, the other Credit Documents, the
Commitments, and the Credit Extensions. Any Person required to
maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person
would accord to its own confidential information. Each of the
Administrative Agent, the Lenders and the L/ C Issuer
acknowledges



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that (a) the Information may include material non-public
information concerning the Borrowers or their Subsidiaries, as
the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and
(c) it will handle such material non-public information in
accordance with applicable Law, including federal and state
securities Laws.



     
SECTION 11.09 Set-off. In addition to any rights and
remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender and
to the fullest extent permitted by law, each of its Affiliates
are authorized at any time and from time to time, without prior
notice to the Borrowers or any other Credit Party, any such
notice being waived by the Borrowers (on its own behalf and on
behalf of each Credit Party) to the fullest extent permitted by
law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing by, such Lender or
Affiliate to or for the credit or the account of the respective
Credit Parties against any and all Obligations owing to such
Lender hereunder or under any other Credit Document, now or
hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under
this Credit Agreement or any other Credit Document and although
such Obligations may be contingent or unmatured or denominated
in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify FMCAG and
the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such
set-off and application.



     
SECTION 11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Credit
Document, the interest paid or agreed to be paid under the
Credit Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the
“Maximum Rate”). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest
contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the
extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and
the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations
hereunder.



     
SECTION 11.11 Counterparts. This Credit Agreement
may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall
constitute one and the same instrument.



     
SECTION 11.12 Integration; Effectiveness. This
Credit Agreement, together with the other Credit Documents,
comprises the complete and integrated agreement of the parties
on the subject matter hereof and of the other Credit Documents
(including, for purposes hereof, the Term Loan Credit Agreement)
and supersedes all prior agreements, written or oral, on such
subject matter (including the Existing Credit Agreement). In the
event of any conflict between the provisions of this Credit
Agreement and those of any other Credit Document, the provisions
of this Credit Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor



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of the Administrative Agent or the Lenders in any other Credit
Document shall not be deemed a conflict with this Credit
Agreement. Each Credit Document was drafted with the joint
participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather
in accordance with the fair meaning thereof. Except as provided
in Section 5.01, this Credit Agreement shall become
effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Credit
Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Credit Agreement.



     
SECTION 11.13 Survival of Representations and
Warranties. All representations and warranties made
hereunder and in any other Credit Document or other document
delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will
be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent
or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or
knowledge of any Default or Event of Default at the time of any
Credit Extension, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.



     
SECTION 11.14 Severability. If any provision of this
Credit Agreement or the other Credit Documents is held to be
illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this
Credit Agreement and the other Credit Documents shall not be
affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity
of a provision in a particular jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.



     
SECTION 11.15 Tax Forms.






		
	 	
    (a) (i) Each Lender that is not a “United States
    person” within the meaning of Section 7701(a)(30) of
    the Internal Revenue Code (a “Foreign Lender”)
    shall deliver to the Administrative Agent, prior to receipt of
    any payment under this Credit Agreement or any Note (or upon
    accepting an assignment of an interest herein), (A) two
    duly signed completed copies of either IRS Form W-8BEN or
    any successor thereto (relating to such Foreign Lender and
    entitling it to a complete exemption from any United States
    withholding tax on any payments to be made to such Foreign
    Lender by the Borrowers pursuant to this Credit Agreement) or
    IRS Form W-8ECI or any successor thereto (relating to all
    payments to be made to such Foreign Lender by the Borrowers
    pursuant to this Credit Agreement being subject to full United
    States income tax) or such other evidence satisfactory to the
    Borrowers and the Administrative Agent that such Foreign Lender
    is entitled to a complete exemption from United States
    withholding tax, including any exemption pursuant to
    Section 881(c) of the Internal Revenue Code and
    (B) two duly signed completed copies of IRS Form W-8,
    or applicable successor form, certifying that



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    it is entitled to an exemption from United States backup
    withholding tax. For the avoidance of doubt, in the case of an
    exemption under Section 881(c) of the Internal Revenue
    Code, such other satisfactory evidence shall include a statement
    under penalties of perjury that such Lender (1) is not a
    “bank” under Section 881(c)(3)(A) of the Internal
    Revenue Code, is not subject to regulatory or other legal
    requirements as a bank in any jurisdiction and has not been
    treated as a bank for purposes of any tax, securities law or
    other filing or submission made to nay Governmental Authority,
    any application made to a rating agency or qualification for any
    exemption from any tax, securities law or other legal
    requirements, (2) is not a ten percent (10%) shareholder of
    any of the Borrowers within the meaning of
    Section 811(c)(3)(B) of the Internal Revenue Code and
    (3) is not a controlled foreign corporation receiving
    interest from a related person within the meaning of
    Section 881(c)(3)(C) of the Internal Revenue Code.
    Thereafter and from time to time, each such Foreign Lender shall
    (A) promptly submit to the Administrative Agent such
    additional duly completed and signed copies of one of such forms
    (or such successor forms as shall be adopted from time to time
    by the relevant United States taxing authorities) as may then be
    available under then current United States laws and regulations
    to avoid, or such evidence as is satisfactory to the Borrowers
    and the Administrative Agent of any available exemption from
    United States withholding taxes in respect of all payments to be
    made to such Foreign Lender by the Borrowers pursuant to this
    Credit Agreement, (B) promptly notify the Administrative
    Agent of any change in circumstances that would modify or render
    invalid any claimed exemption or reduction, and (C) take
    such steps as shall not be materially disadvantageous to it, in
    the reasonable judgment of such Lender, and as may be reasonably
    necessary (including the re-designation of its Lending Office)
    to avoid any requirement of applicable Laws that the Borrowers
    make any deduction or withholding for taxes from amounts payable
    to such Foreign Lender.






		
	 	     
    (ii) Each Foreign Lender, to the extent it does not act or
    ceases to act for its own account with respect to any portion of
    any sums paid or payable to such Lender under any of the Credit
    Documents (for example, in the case of a typical participation
    by such Lender), shall deliver to the Administrative Agent on
    the date when such Foreign Lender ceases to act for its own
    account with respect to any portion of any such sums paid or
    payable, and at such other times as may be necessary in the
    determination of the Administrative Agent (in the reasonable
    exercise of its discretion), (A) two duly signed completed
    copies of the forms or statements required to be provided by
    such Lender as set forth above, to establish the portion of any
    such sums paid or payable with respect to which such Lender acts
    for its own account that is not subject to U.S. withholding tax,
    and (B) two duly signed completed copies of IRS
    Form W-8IMY (or any successor thereto), together with any
    information such Lender chooses to transmit with such form, and
    any other certificate or statement of exemption required under
    the Internal Revenue Code, to establish that such Lender is not
    acting for its own account with respect to the remaining portion
    of any such sums payable to such Lender.
	 
	 	     
    (iii) The Borrowers shall not be required to pay any
    additional amount to any Foreign Lender under
    Section 3.01 (A) with respect to any Taxes
    required to be deducted or withheld on the basis of the
    information, certificates or statements of exemption such



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    Lender transmits with an IRS Form W-8IMY pursuant to this
    Section 11.15(a) or (B) if such Lender shall have
    failed to satisfy the foregoing provisions of this
    Section 11.15(a); provided that if such
    Lender shall have satisfied the requirement of this
    Section 11.15(a) on the date such Lender became a
    Lender or ceased to act for its own account with respect to any
    payment under any of the Credit Documents, nothing in this
    Section 11.15(a) shall relieve the Borrowers of its
    obligation to pay any amounts pursuant to
    Section 3.01 in the event that, as a result of any
    change in any applicable law, treaty or governmental rule,
    regulation or order, or any change in the interpretation,
    administration or application thereof, such Lender is no longer
    properly entitled to deliver forms, certificates or other
    evidence at a subsequent date establishing the fact that such
    Lender or other Person for the account of which such Lender
    receives any sums payable under any of the Credit Documents is
    not subject to withholding or is subject to withholding at a
    reduced rate.






		
	 	     
    (iv) The Administrative Agent may, without reduction,
    withhold any Taxes required to be deducted and withheld from any
    payment under any of the Credit Documents with respect to which
    the Borrowers are not required to pay additional amounts under
    this Section 11.15(a).



     
(b) Upon the request of the Administrative Agent, each
Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Internal Revenue Code
shall deliver to the Administrative Agent two duly signed
completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold
from any interest payment to such Lender an amount equivalent to
the applicable back-up withholding tax imposed by the Internal
Revenue Code, without reduction.



     
(c) If any Governmental Authority asserts that the
Administrative Agent did not properly withhold or backup
withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on
the amounts payable to the Administrative Agent under this
Section, and costs and expenses (including Attorney Costs) of
the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and
the resignation of the Administrative Agent.



     
SECTION 11.16 Replacement of Lenders. If
(i) any Lender requests compensation under
Section 3.04, (ii) the Borrower is required to
pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to
Section 3.01, (iii) a Lender (a
“Non-Consenting Lender”) does not consent to a
proposed amendment, consent, change, waiver, discharge or
termination with respect to any Credit Document that has been
approved by the Required Lenders, the Required Revolving
Lenders, the Required Tranche A Term Lenders, the Required
Tranche B Term Lenders or the Required Tranche C Term
Lenders (or the required lenders for any other term loan
established under the Incremental Loan Facilities), as
appropriate, (including, without limitation by a failure to
respond in writing to a proposed amendment by the date and time
specified by the Administrative Agent) as provided in
Section 11.01 but requires unanimous consent of all
Lenders or all Lenders of a particular class



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of loans, or (iv) any Lender is a Defaulting Lender, then
the Borrowers may, at their sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required
by, Section 11.07), all of its interests, rights and
obligations under this Credit Agreement and the related Credit
Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such
assignment), provided that:






		
	 	     
    (a) the Borrowers shall have paid to the Administrative
    Agent the assignment fee specified in
    Section 11.07(b);
	 
	 	     
    (b) such Lender shall have received payment of an amount
    equal to the outstanding principal of its Loans and L/ C
    Advances, accrued interest thereon, accrued fees and all other
    amounts payable to it hereunder and under the other Credit
    Documents (including any amounts under Section 3.05)
    from the assignee (to the extent of such outstanding principal
    and accrued interest and fees) or the Borrowers (in the case of
    all other amounts);
	 
	 	     
    (c) in the case of any such assignment resulting from a
    claim for compensation under Section 3.04 or
    payments required to be made pursuant to
    Section 3.01, such assignment will result in a
    reduction in such compensation or payments thereafter; and
	 
	 	     
    (d) such assignment does not conflict with applicable Laws;
    and
	 
	 	     
    (e) in the case of any such assignment resulting from a
    Non-Consenting Lender’s failure to consent to a proposed
    amendment, consent change, waiver, discharge or termination with
    respect to any Credit Document, the applicable replacement bank
    or financial institution consents to the proposed change,
    waiver, discharge or termination; provided that the failure by
    such Non-Consenting Lender to execute and deliver an Assignment
    and Assumption shall not impair the validity of the removal of
    such Non-Consenting Lender and the mandatory assignment of such
    Non-Consenting Lender’s Commitments and outstanding Loans
    and participations in L/ C Obligations pursuant to this
    Section 11.16 shall nevertheless be effective
    without the execution by such Non-Consenting Lender of an
    Assignment and Assumption.



     
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers
to require such assignment and delegation cease to apply.



     
SECTION 11.17 Source of Funds. Each of the Lenders
party to this Credit Agreement hereby represents and warrants to
the Borrowers that at least one of the following statements is
an accurate representation as to the source of funds to be used
by such Lender in connection with the financing hereunder:



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    (a) no part of such funds constitutes assets allocated to
    any separate account maintained by such Lender in which any
    employee benefit plan (or its related trust) has any interest;
	 
	 	     
    (b) to the extent that any part of such funds constitutes
    assets allocated to any separate account maintained by such
    Lender, such Lender has disclosed to the Borrowers the name of
    each employee benefit plan whose assets in such account exceed
    ten percent (10%) of the total assets of such account as of the
    date of such purchase (and, for purposes of this subsection
    (b), all employee benefit plans maintained by the same
    employer or employee organization are deemed to be a single
    plan);
	 
	 	     
    (c) to the extent that any part of such funds constitutes
    assets of an insurance company’s general account, such
    insurance company has complied with all of the requirements of
    the regulations issued under Section 401(c)(1)(A) of ERISA;
    or
	 
	 	     
    (d) such funds constitute assets of one or more specific
    benefit plans that such Lender has identified in writing to the
    Borrowers.



     
As used in this Section, the terms “employee benefit
plan” and “separate account” shall have the
respective meanings provided in Section 3 of ERISA.



     
SECTION 11.18 Nature of Obligations of the Borrowers.



     
(a) The obligations of each of the Primary Borrowers, as
borrowers hereunder, shall be joint and several in nature for
all Loan Obligations and other obligations owing hereunder or
under the other Credit Documents; provided that:
(i) the obligations of any Primary Borrower as a joint and
several obligor hereunder in respect of such obligations shall
not in any event exceed an aggregate amount equal to the largest
amount that would not render such obligations subject to
avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law, (ii) none of the
Primary Borrowers shall exercise any right of subrogation,
indemnity, reimbursement or contribution against any other
Borrower or Guarantor until such time as the Loan Obligations
and the other obligations owing hereunder and under the other
Credit Documents have been irrevocably paid in full and the
commitments relating thereto have expired or been terminated,
and (iii) each Primary Borrower expressly waives any
requirement that the Administrative Agent or any Lender, or any
of their officers, agents or representatives, exhaust any right,
power or remedy or first proceed under any of the Credit
Documents or against any other Borrower, Guarantor, other Person
or collateral.



     
(b) The obligations of each of the Designated Borrowers
that are not Primary Borrowers, as borrowers hereunder, shall be
several (and not joint) in nature and shall be limited in each
case to the obligations borrowed by such Designated Borrower
hereunder.



     
SECTION 11.19 Judgment Currency. If, for the
purposes of obtaining judgment in any court, it is necessary to
convert a sum due hereunder or any other Credit Document from one



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currency into another currency, the rate of exchange used shall
be that at which, in accordance with normal banking procedures,
the Administrative Agent could purchase such currency with such
other currency on the Business Day preceding the day on which
final judgment is given. The obligation of the Borrowers in
respect of any such sum due to the Administrative Agent or the
Lenders hereunder or under the other Credit Documents shall,
notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which
such sum is denominated in accordance with the applicable
provisions of this Credit Agreement (the “Agreement
Currency”), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent
of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent
from the Borrowers in the Agreement Currency, the Borrowers
agree, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or the Person to
whom such obligation was owing against such loss. If the amount
of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess
to the Borrowers (or to any other Person who may be entitled
thereto under applicable law).



     
SECTION 11.20 Power of Attorney.



     
(a) Without limiting any other authority granted to the
Collateral Agent herein or in any other Credit Document, each
Lender party to this Credit Agreement hereby specifically
authorizes the Collateral Agent to enter into, as agent on
behalf of the Lenders party to this Credit Agreement (with the
effect that each Lender shall become a party thereunder), and/or
amend, as agent on behalf of the Lenders, (i) any Pledge
Agreements governed by German Law and (ii) the Parallel
Debt Agreement or any substantially similar agreement that
creates an obligation of the Credit Parties (as debt
acknowledgement or abstraktes Schuldanerkenntnis) in
favor of the Collateral Agent under German Law. The
authorization granted herein comprises any action or declaration
the Collateral Agent may deem necessary in connection with such
Pledge Agreements (including any action or declaration that the
Collateral Agent deems to be necessary in order to create and
continue a valid Pledge Agreement governed by German Law), the
Parallel Debt Agreement or any substantially similar agreement
that creates an obligation of the Credit Parties (as debt
acknowledgement or abstraktes Schuldanerkenntnis) in
favor of the Collateral Agent under German Law (including any
action or declaration that the Collateral Agent deems to be
necessary in order to create and continue valid obligations
under such agreements governed by German Law). The Collateral
Agent is explicitly exempt from any restriction of
Section 181 of the German Civil Code. The Collateral Agent
has the power to sub-delegate its powers as agent of each of the
Lenders granted by this Section 11.20(a) to third
parties, including the release from the restrictions of
Section 181 of the German Civil Code.



     
(b) The Credit Parties hereby specifically authorize and
instruct FMCAG to enter into, as agent on behalf of the Credit
Parties (with the effect that each Credit Party shall become a
party thereunder), and/or amend, as agent of behalf of the
Credit Parties, the Parallel Debt Agreement or any substantially
similar agreement that creates an obligation of the Credit
Parties (as debt acknowledgement or abstraktes
Schuldanerkenntnis) in favor of the Collateral Agent



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under German Law. The authorization granted herein comprises any
action or declaration FMCAG may deem necessary in connection
with such agreements (including any action or declaration that
FMCAG deems to be necessary in order to create and continue
valid obligations under such agreements governed by German Law).
FMCAG has the power to sub-delegate its powers as agent of each
of the Credit Parties granted by this
Section 11.20(b) to third parties.



     
SECTION 11.21 GOVERNING LAW.



     
(a) THIS CREDIT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.



     
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS CREDIT AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY CREDIT
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, THAT MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.



     
SECTION 11.22 WAIVER OF RIGHT TO TRIAL BY JURY. EACH
PARTY TO THIS CREDIT AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS CREDIT
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.



148







 



     
SECTION 11.23 ENTIRE AGREEMENT. THIS CREDIT
AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



     
SECTION 11.24 Conflict. To the extent there is any
conflict or inconsistency between the provisions hereof and the
provisions of any Credit Document, this Credit Agreement shall
control.



     
SECTION 11.25 USA PATRIOT Act Notice. Each Lender
that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the
“Act”), it is required to obtain, verify and
record information that identifies the Borrowers, which
information includes the name and address of each Borrower and
other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Borrower
in accordance with the Act.



     
SECTION 11.26 German Money Laundering Act. Each
Borrower incorporated in Germany hereby confirms that it is the
beneficiary within the meaning of Section 8 of the German
Money Laundering Act of each part of the Loan that is made
available to it.



     
SECTION 11.27 Additional Provisions In Respect of
Trust Preferred Subdebt.



     
(a) Senior Bank Credit Agreement. This Credit
Agreement replaces the Existing Credit Agreement and refinances
and replaces the revolving loan commitments and outstanding
revolving loans and letters of credit indebtedness thereunder.
The Existing Credit Agreement replaced that certain Credit
Agreement dated as of September 27, 1996 among NMC and
certain subsidiaries and affiliates of NMC, as borrowers,
certain subsidiaries and affiliates of NMC, as guarantors, the
lenders identified therein and NationsBank, N.A. (now known as
Bank of America, N.A.), as Paying Agent, and which refinanced
the indebtedness thereunder. This Credit Agreement constitutes
the “Bank Credit Agreement” under the
Trust Preferred Subdebt Indentures and the loans and
interest owing hereunder constitute “Senior
Indebtedness” under the Trust Preferred Indentures.



     
(b) Payment Blockage Notices. The Lenders under this
Credit Agreement, as holders of the “Specified Senior
Indebtedness” referenced the Trust Preferred Subdebt
shall have the exclusive right to send “Blockage
Notices” in respect of the Trust Preferred Subdebt;
provided that the Lenders under this Credit Agreement
agree not to send any such “Blockage Notice” without
the consent of or direction by the Required Lenders.



     
(c) Third Party Beneficiary Rights. The Lenders
under the Term Loan Credit Agreement shall be deemed to have
acted in reliance on the provisions contained in this
Section 11.27. The provisions of this
Section 11.27 shall constitute a continuing offer to
and agreement with all Persons who, in reliance on these
provisions, become Lenders



149







 




under the Term Loan Credit Agreement or continue to be such
Lenders, and such provisions are made for the benefit of such
Lenders which shall be third party beneficiaries and obligees
under this Section 11.27.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



150







 



     
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and
delivered as of the date first above written.




	 	 	 
	
    BORROWERS AND GUARANTORS:	 	
    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







			
	 	By: 	
    /s/ Lawrence A. Rosen



		
	 	
     

	 	
    Name: Lawrence A. Rosen



			
	 	Title:	
    CFO and Member of the Management Board






			
	 	By: 	
    /s/ Dr. Rainer Runte



		
	 	
     

	 	
    Name: Dr. Rainer Runte
	 	
    Title:  Member of the Management Board
	 
	 	
    FMC FINANCE S.à r.l. LUXEMBOURG V, a
	 	
    private limited company (société à
	 	
    responsabilité limitée) organized under the
	 	
    laws of Luxembourg






			
	 	By: 	
    /s/ Dr. Andrea Stopper



		
	 	
     

	 	
    Name: Dr. Andrea Stopper
	 	
    Title:  Sole Manager
	 
	 	
    FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York
    corporation






			
	 	By: 	
    /s/ Mark Fawcett



		
	 	
     

	 	
    Name: Mark Fawcett
	 	
    Title:  Assistant Treasurer



151







 




CO-BORROWERS AND GUARANTORS:




NATIONAL MEDICAL CARE, INC., a Delaware corporation




BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF GEORGIA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF INDIANA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a Delaware
limited liability company




BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC., a
Delaware corporation




BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., a
Delaware corporation




BIO-MEDICAL APPLICATIONS OF OHIO, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC., a
Delaware corporation




BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC., a
Delaware corporation




BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a Delaware
corporation




BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC., a
Delaware corporation




BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC., a Delaware
corporation




FRESENIUS MEDICAL CARE CARDIOVASCULAR RESOURCES, INC., a
Pennsylvania corporation




FRESENIUS USA MANUFACTURING, INC., a Delaware corporation




FRESENIUS USA MARKETING, INC., a Delaware corporation




FRESENIUS USA, INC., a Massachusetts corporation




SAN DIEGO DIALYSIS SERVICES, INC., a Delaware corporation




SPECTRA LABORATORIES, INC., a Nevada corporation




WSKC DIALYSIS SERVICES, INC., an Illinois corporation




EVEREST HEALTHCARE INDIANA, INC., an Indiana corporation




	 	 	 
	
    
    By: /s/ Mark Fawcett

     
Name: Mark
    Fawcett

    Title:  Treasurer for each of the foregoing

    	 	 




152







 




	 	 	 
	 
	
    
    GUARANTORS:

    	 	
    BIO-MEDICAL APPLICATIONS OF MARYLAND, INC., a Delaware
    corporation

     FRESENIUS SECURITIES, INC., a California corporation

     SRC HOLDING COMPANY, INC., a Delaware corporation

    

    By: /s/ Mark Fawcett

     
Name: Mark
    Fawcett

    Title:  Treasurer for each of the foregoing




153







 




	 	 	 
	 
	
    GUARANTOR:	 	
    FRESENIUS MEDICAL CARE NORTH AMERICA HOLDINGS LIMITED
    PARTNERSHIP, a Delaware limited partnership

    

    By: Fresenius Medical Care US Vermögensverwaltungs
    GmbH and Co. KG, a German partnership

    

    Its General Partner

    

    By: Fresenius Medical Care Vermögensverwaltungs GmbH,
    a German limited liability company

    

    Its General Partner

    

    By: /s/ Lawrence A. Rosen

     
Name: Lawrence
    A. Rosen

    Title:  Managing Director




154







 




	 	 	 
	 
	
    
    GUARANTORS:

    	 	
    FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH, a German limited
    liability company

    

    By: /s/ Norbert Weber

     
Name: Norbert
    Weber

    Title:  Managing Director

    

    By: /s/ Rolf Groos

     
Name: Rolf
    Groos

    Title:  Managing Director

    

     FRESENIUS MEDICAL CARE

    BETEILIGUNGSGESELLSCHAFT mbH, a German limited
    liability company

    

    By: /s/ Dr. Emanuele Gatti

     
Name: Dr. Emanuele
    Gatti

    Title:  Managing Director

    

    By: /s/ Dr. Rainer Runte

     
Name: Dr. Rainer
    Runte

    Title:  Managing Director

    

     FRESENIUS MEDICAL CARE US BETEILIGUNGSGESELLSCHAFT mbH,
    a German limited liability company

    

    By: /s/ Lawrence A. Rosen

     
Name: Lawrence
    A. Rosen

    Title:  Managing Director




155







 




	 	 	 
	
    
    GUARANTORS:

    	 	
    FRESENIUS MEDICAL CARE US ZWEI BETEILIGUNGSGESELLSCHAFT
    MBH,

    a German limited liability company
	 
	 	 	
    By: /s/ Lawrence A. Rosen

     
Name: Lawrence
    A. Rosen

    Title:  Managing Director
	 
	 	 	
    FRESENIUS MEDICAL CARE US DREI BETEILIGUNGSGESELLSCHAFT
    MBH,

    a German limited liability company
	 
	 	 	
    By: /s/ Lawrence A. Rosen

     
Name: Lawrence
    A. Rosen

    Title:  Managing Director
	 
	 	 	
    FMC TRUST FINANCE S.à r.l.

    LUXEMBOURG, a private limited company (société
    à responsabilité limitée) organized under the
    laws of Luxembourg
	 
	 	 	
    By: /s/ Dr. Andrea Stopper

     
Name: Dr. Andrea
    Stopper

    Title:  Sole Manager
	 
	 	 	
    FMC FINANCE II S.à r.l., a private limited company
    (société à responsabilité limitée)
    organized under the laws of Luxembourg
	 
	 	 	
    By: /s/ Dr. Andrea Stopper

     
Name: Dr. Andrea
    Stopper

    Title:  Manager
	 
	 	 	
    By: /s/ Gabriele Dux

     
Name: Gabriele
    Dux

    Title:  Manager




156







 




	 	 	 
	
    
    GUARANTORS:

    	 	
    FMC TRUST FINANCE S.à r.l. LUXEMBOURG-III, a private
    limited company (société à responsabilité
    limitée) organized under the laws of Luxembourg
	 
	 	 	
    By: /s/ Gabriele Dux

     
Name: Gabriele
    Dux

    Title:  Sole Manager
	 
	 	 	
    FMC FINANCE S.à r.l. LUXEMBOURG-IV, a private
    limited company (société à responsabilité
    limitée) organized under the laws of Luxembourg
	 
	 	 	
    By: /s/ Dr. Andrea Stopper

     
Name: Dr. Andrea
    Stopper

    Title:  Sole Manager
	 
	 	 	
    NATIONAL MEDICAL CARE OF SPAIN, S.A., a corporation
    (sociedad anónima) organized under the laws of Spain
	 
	 	 	
    By: /s/ Dr. Emanuele Gatti

     
Name: Dr. Emanuele
    Gatti

    Title:  Director
	 
	 	 	
    By: /s/ Dr. Andrea Stopper

     
Name: Dr. Andrea
    Stopper

    Title:  Director




157







 




	 	 	 
	
    
    GUARANTORS:

    	 	
    BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC., a
    Delaware corporation
	 	 	
    NMC A, LLC, a Delaware limited liability company
	 	 	
    BIO-MEDICAL APPLICATIONS OF ARIZONA, INC., a Delaware
    corporation
	 	 	
    BIO-MEDICAL APPLICATIONS OF MAINE, INC., a Delaware
    corporation
	 	 	
    EVEREST HEALTHCARE HOLDINGS, INC, a Delaware corporation
	 	 	
    FRESENIUS MANAGEMENT SERVICES, INC, a Delaware corporation
	 	 	
    FMS NEW YORK, INC., a Delaware corporation
	 
	 	 	
    By: /s/ Mark Fawcett

     
Name: Mark
    Fawcett

    Title:  Treasurer for each of the foregoing




158







 




	 	 	 
	
    
    ADMINISTRATIVE AGENT:

    	 	
    BANK OF AMERICA, N.A., as Administrative Agent and
    Collateral Agent
	 
	 	 	
    By: /s/ Angela S. Lau

     
Name: Angela
    S. Lau

    Title:  Assistant Vice President




159







 




	 	 	 
	
    
    LENDERS:

    	 	
    BANK OF AMERICA, N.A.
	 
	 	 	
    By: /s/ Amie L. Edwards

     
Name: Amie
    L. Edwards

    Title:  Vice President
	 
	 	 	
    DEUTSCHE BANK AG NEW YORK BRANCH
	 
	 	 	
    By: /s/ Diane F. Rolfe

     
Name: Diane
    F. Rolfe

    Title:  Vice President
	 
	 	 	
    By: /s/ Anca Trifan

     
Name: Anca
    Trifan

    Title:  Director
	 
	 	 	
    THE BANK OF NOVA SCOTIA
	 
	 	 	
    By: /s/ C. A. Calloway

     
Name: C.
    A. Calloway

    Title:  Managing Director
	 
	 	 	
    CREDIT SUISSE, Cayman Islands Branch
	 
	 	 	
    By: /s/ Judith Smith

     
Name: Judith
    Smith

    Title:  Director
	 
	 	 	
    By: /s/ Doreen Barr

     
Name: Doreen
    Barr

    Title:  Associate




160







 




	 	 	 
	 	 	
    DRESDNER BANK AG, NIEDERLASSUNG LUXEMBURG
	 
	 	 	
    By: /s/ Christiane Zahnert-Jost

     
Name: Christiane
    Zahnert-Jost

    Title:  Transaction Management
	 
	 	 	
    By: /s/ Barbara Stein

     
Name: Barbara
    Stein

    Title:  Transaction Management
	 
	 	 	
    JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
	 
	 	 	
    By: /s/ James W. Peterson

     
Name: James
    W. Peterson

    Title:  Vice President
	 
	 	 	
    ABN AMRO BANK N.V., Niederlassung Deutschland
	 
	 	 	
    By: /s/ Michaela Steidl

     
Name: Michaela
    Steidl

    Title:  Corporate Director
	 
	 	 	
    By: /s/ Markus Meiser

     
Name: Markus
    Meiser

    Title:  Assistant Vice President




161







 




	 	 	 	 	 
	 	 	
    BANCO BILBAO VIZCAYA ARGENTARIA S.A.
	 
	 	 	
    By: /s/ Christopher Metherell
	 	 	 
	 	 	
        Name: Christopher Metherell
	 	 	
        Title:  Global Relationship
    Manager
	 
	 	 	
    By: /s/ M.I. Carrera Ortiz de Eribe
	 	 	 
	 	 	
        Name: M.I. Carrera Ortiz de Eribe
	 	 	
        Title:  Global Relationship
    Manager
	 
	 	 	
    BANK OF NEW YORK
	 
	 	 	
    By: /s/ Thomas J. McCormack
	 	 	 
	 	 	
        Name: Thomas J. McCormack
	 	 	
        Title:  Vice President
	 
	 	 	
    BARCLAYS BANK PLC
	 
	 	 	
    By: /s/ Mark Pope
	 	 	 
	 	 	
        Name: Mark Pope
	 	 	
        Title:  Manager
	 
	 	 	
    BAYERISCHE LANDESBANK
	 
	 	 	
    By: /s/ Hans Fischer	 	
    /s/ Josef Diepold
	 	 	 
	 	 	
        Name: Hans Fischer

    Title:  First Vice President	 	
    Josef Diepold

    Assistant Vice President




162






 




	 	 	 
	 	 	
    BNP PARIBAS
	 
	 	 	
    By: /s/ Cecile Scherer

     
Name: Cecile
    Scherer

    Title:  Director, Merchant Banking Group
	 
	 	 	
    By: /s/ PJ de Filippis

     
Name: PJ
    de Filippis

    Title:  Managing Director
	 
	 	 	
    CALYON DEUTSCHLAND
	 
	 	 	
    By: /s/ Jean-Louis Manera

     
Name: Jean-Louis
    Manera

    Title:  Acting Senior Country Officer for Germany and
    Austria
	 
	 	 	
    By: /s/ Birgit Nabben

     
Name: Birgit
    Nabben

    Title:  Senior Relationship Manager
	 
	 	 	
    COMMERZBANK AG, Frankfurt am Main
	 
	 	 	
    By: /s/ Michael Peter Froeschke

     
Name: Michael
    Peter Froeschke

    Title:  Head of Chemicals/ Pharmaceuticals, Senior
    Relationship Management
	 
	 	 	
    By: /s/ Hans-Friedrich Jenetzky

     
Name: Hans-Friedrich
    Jenetzky

    Title:  Senior Vice President Relationship Management
    Großkundencenter Frankfurt/ Main




163







 




	 	 	 
	 	 	
    DZ BANK AG

    Deutsche Zentral-Genossenschaftsbank Frankfurt am Main
	 
	 	 	
    By: /s/ Gottfried Finken

     
Name: Gottfried
    Finken

    Title:  Director
	 
	 	 	
    By: /s/ Eric Stöver

     
Name: Eric
    Stöver

    Title:  Vice President
	 
	 	 	
    KfW
	 
	 	 	
    By: /s/ Sven Wabbels

     
Name: Sven
    Wabbels

    Title:  Vice President
	 
	 	 	
    By: /s/ Marion Jöstingmeier

     
Name: Marion
    Jöstingmeier

    Title:  Senior Project Manager
	 
	 	 	
    LANDESBANK BADEN-WUERTTEMBERG,

    New York Branch and/or Cayman Islands Branch
	 
	 	 	
    By: /s/ Karen Richard

     
Name: Karen
    Richard

    Title:  Vice President
	 
	 	 	
    By: /s/ Carolyn Gutbrod

     
Name: Carolyn
    Gutbrod

    Title:  Vice President




164







 




	 	 	 	 	 
	 	 	
    LANDESBANK HESSEN THüRINGEN GIROZENTRALE
	 
	 	 	
    By: /s/ Claus Hemsteg
	 	 	 
	 	 	
        Name: Claus Hemsteg
	 	 	
        Title:  Vice President
	 
	 	 	
    By: /s/ Schu-Minn Kim
	 	 	 
	 	 	
        Name: Schu-Minn Kim
	 	 	
        Title:  Associate
	 
	 	 	
    MIZUHO CORPORATE BANK (GERMANY) AKTIENGESELLSCHAFT
	 
	 	 	
    By: /s/ Gunnar Graf	 	
    /s/ Andreas Tretzmueller
	 	 	 
	 	 	
        Name: Gunnar Graf

    Title:  General Manager	 	
    Andreas Tretzmueller

    Director
	 
	 	 	
    NORDEA BANK AB (publ)
	 
	 	 	
    By: /s/ Birgitta Höög
	 	 	 
	 	 	
        Name: Birgitta Höög
	 	 	
        Title:  Legal Counsel
	 
	 	 	
    By: /s/ Eva Österström Rietz
	 	 	 
	 	 	
        Name: Eva Österström Rietz
	 	 	
        Title:  Legal Counsel




165






 




	 	 	 	 	 
	 	 	
    THE ROYAL BANK OF SCOTLAND PLC,

    Niederlassung Frankfurt
	 
	 	 	
    By: /s/ Kai Gloystein	 	
    /s/ Kristijan Krstic
	 	 	 
	 	 	
        Name: Kai Gloystein

    Title:  Director	 	
    Kristijan Krstic

    Senior Director
	 
	 	 	
    SOCIETE GENERALE
	 
	 	 	
    By: /s/ Anne-Marie Dumortier
	 	 	 
	 	 	
        Name: Anne-Marie Dumortier
	 	 	
        Title:  Director
	 
	 	 	
    SUMITOMO MITSUI BANKING CORPORATION
	 
	 	 	
    By: /s/ Dr. Harald Wimmer	 	
    /s/ Jörg Legens
	 	 	 
	 	 	
        Name: Dr. Harald Wimmer

    Title:  Manager	 	
    Jörg Legens

    Assistant Manager
	 
	 	 	
    SUNTRUST BANK
	 
	 	 	
    By: /s/ William D. Priester
	 	 	 
	 	 	
        Name: William D. Priester
	 	 	
        Title:  Director
	 
	 	 	
    WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	
    By: /s/ Laura McInnes
	 	 	 
	 	 	
        Name: Laura McInnes
	 	 	
        Title:  Director




166






 




	 	 	 	 	 
	 	 	
    WESTLB AG, NEW YORK BRANCH
	 
	 	 	
    By: /s/ Walter T. Duffy III
	 	 	 
	 	 	
        Name: Walter T. Duffy III
	 	 	
        Title:  Director
	 
	 	 	
    By: /s/ Angelika Seifert
	 	 	 
	 	 	
        Name: Angelika Seifert
	 	 	
        Title:  Executive Director
	 
	 	 	
    UNITED OVERSEAS BANK
	 
	 	 	
    By: /s/ Wong Kwong Yew
	 	 	 
	 	 	
        Name: Wong Kwong Yew
	 	 	
        Title:  First Vice President
    & General Manager
	 
	 	 	
    By: /s/ Philip Cheong
	 	 	 
	 	 	
        Name: Philip Cheong
	 	 	
        Title:  Vice
    President & Deputy General Manager
	 
	 	 	
    ALLIED IRISH BANKS P.L.C.
	 
	 	 	
    By: /s/ Ingrid Lacey	 	
    /s/ Grace Gilligan
	 	 	 
	 	 	
        Name: Ingrid Lacey

    Title:  Senior Manager	 	
    Grace Gilligan

    Senior Manager




167






 




	 	 	 
	 	 	
    BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK BRANCH
	 
	 	 	
    By: /s/ Hetal Selarka

     
Name: Hetal
    Selarka

    Title:  Associate Director
	 
	 	 	
    By: /s/ Mario Caicedo

     
Name: Mario
    Caicedo

    Title:  Senior Associate





	 	 	 	 	 
	 
	 	 	
    BHF-BANK AKTIENGESELLSCHAFT
	 
	 	 	
    By: /s/ Josef Brähler	 	
    /s/ Torsten Lange
	 	 	 
	 	 	
        Name: Josef Brähler

    Title:  Vice President	 	
    Torsten Lange

    Assistant Vice President





	 	 	 
	 
	 	 	
    HSBC BANK PLC
	 
	 	 	
    By: /s/ Roger Booth

     
Name: Roger
    Booth

    Title:  Managing Director, Healthcare-Europe
	 
	 	 	
    LANDSBANKI ISLANDS HF.
	 
	 	 	
    By: /s/ Lárus Welding

     
Name: Lárus
    Welding

    Title:  Head of London Branch




168






 




	 	 	 	 	 
	 	 	
    SANPAOLO IMI S.P.A. NEW YORK BRANCH
	 
	 	 	
    By: /s/ R. Pedicini	 	
    /s/ M. Ruecker
	 	 	 
	 	 	
        Name: R. Pedicini

    Title:  Deputy Chief Manager	 	
    M. Ruecker

    Senior Relationship Manager
	 
	 	 	
    LANDESBANK RHEINLAND PFALZ
	 
	 	 	
    By: /s/ Richard Kuhn	 	
    /s/ Robert Wagner
	 	 	 
	 	 	
        Name: Richard Kuhn

    Title:  Senior Vice President	 	
    Robert Wagner

    Vice President
	 
	 	 	
    RAIFFEISEN ZENTRALBANK ÖSTERREICH AKTIENGESELLSCHAFT
	 
	 	 	
    By: /s/ Mag. Josef Hörl	 	
    /s/ Mag. Marianne Szigeti
	 	 	 
	 	 	
        Name: Mag. Josef
    Hörl
    Title:  Head of
    Credit Office I	 	
    Mag. Marianne Szigeti

    Account Manager
	 
	 	 	
    BANK OF AUSTRIA CREDITANSTALT AG
	 
	 	 	
    By: /s/ I. Bleier	 	
    /s/ C. Dietrich
	 	 	 
	 	 	
        Name: I. Bleier

    Title:  Dep. Managing Director	 	
    C. Dietrich

    Senior Manager
	 
	 	 	
    BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY
	 
	 	 	
    By: /s/ Karen A. Brinkman
	 	 	 
	 	 	
        Name: Karen A. Brinkman
	 	 	
        Title:  Vice President




169






 




	 	 	 	 	 
	 	 	
    DEUTSCHE APOTHEKER-UND ARZTEBANK EG
	 
	 	 	
    By: /s/ Gebauer	 	
    /s/ Dörr
	 	 	 
	 	 	
        Name: Gebauer

    Title: 	 	
    Dörr
	 
	 	 	
    FORTIS CAPITAL CORP
	 
	 	 	
    By: /s/ John Crawford
	 	 	 
	 	 	
        Name: John Crawford
	 	 	
        Title:  Managing Director
	 
	 	 	
    By: /s/ Douglas Riahi
	 	 	 
	 	 	
        Name: Douglas Riahi
	 	 	
        Title:  Managing Director
	 
	 	 	
    LANDESBANK SACHSEN GIROZENTRALE
	 
	 	 	
    By: /s/ Tino Petzold	 	
    /s/ Jana Spangler
	 	 	 
	 	 	
        Name: Tino Petzold

    Title:  Head of Syndication	 	
    Jana Spangler

    Associate




170






 




	 	 	 
	 	 	
    NATEXIS BANQUES POPULAIRES
	 
	 	 	
    By: /s/ Nicolas Regent

     
Name: Nicolas
    Regent

    Title:  VP Multinational
	 
	 	 	
    By: /s/ P.J. Van Tuller

     
Name: P.J.
    Van Tuller

    Title:  Group Head
	 
	 	 	
    NATIONAL CITY BANK OF KENTUCKY
	 
	 	 	
    By: /s/ Erica E. Dowd

     
Name: Erica
    E. Dowd

    Title:  Assistant Vice President
	 
	 	 	
    THE GOVERNOR AND COMPANY OF THE

    BANK OF IRELAND
	 
	 	 	
    By: /s/ Mark McGoldrick

     
Name: Mark
    McGoldrick

    Title:  Managing Director
	 
	 	 	
    By: /s/ Brian Williams

     
Name: Brian
    Williams

    Title:  Vice President




171







 




	 	 	 
	 	 	
    LBBW BANK IRELAND PLC
	 
	 	 	
    By: /s/ Eoin Redmond

     
Name: Eoin
    Redmond

    Title:  Senior Manager
	 
	 	 	
    By: /s/ Owen Butler

     
Name: Owen
    Butler

    Title:  Senior Manager
	 
	 	 	
    BANK OF TAIWAN, LONDON BRANCH
	 
	 	 	
    By: /s/ Fu-San Chiang

     
Name: Fu-San
    Chiang

    Title:  General Manager of Bank of Taiwan, London
    Branch
	 
	 	 	
    BANK OF TAIWAN, NEW YORK AGENCY
	 
	 	 	
    By: /s/ Eunice S. J. Yeh

     
Name: Eunice
    S. J. Yeh

    Title:  Senior Vice President & General
    Manager





	 	 	 	 	 
	 
	 	 	
    CREDIT INDUSTRIEL ET COMMERCIAL
	 
	 	 	
    By: /s/ Mathew Gillard	 	
    /s/ Patrick Kitching
	 	 	 
	 	 	
        Name: Mathew Gillard

    Title:  Manager	 	
    Patrick Kitching

    Manager




172







 




	 	 	 	 	 
	 	 	
    CREDIT MUTUEL BANQUE DE L’ECONOMIE DU COMMERCE ET DE LA
    MONETIQUE S.A. NIEDERLASSUNG DEUTSCHLAND
	 
	 	 	
    By: /s/ Daniel Lorang	 	
    /s/  Jean-Michel Guillocheau
	 	 	 
	 	 	
       Name: Daniel Lorang

    Title:  Vice Director	 	
    Jean-Michel Guillocheau

    Authorized Signatory





	 	 	 
	 
	 	 	
    KEYBANK NATIONAL ASSOCIATION
	 
	 	 	
    By: /s/ J. T. Taylor

     
Name: J.
    T. Taylor

    Title:  Senior Vice President
	 
	 	 	
    STATE BANK OF INDIA
	 
	 	 	
    By: /s/ Rakesh Chandra

     
Name: Rakesh
    Chandra

    Title:  Vice President & Head (Credit)
	 
	 	 	
    RZB FINANCE LLC
	 
	 	 	
    By: /s/ Christoph Hoedl

     
Name: Christoph
    Hoedl

    Title:  Group Vice President
	 
	 	 	
    By: /s/ Juan M. Csillagi

     
Name: Juan
    M. Csillagi

    Title:  Group Vice President




173