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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 6-K

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13A-16 OR 15D-16 OF THE
SECURITIES EXCHANGE ACT OF 1934

For the month of July 2019

FRESENIUS MEDICAL CARE AG & Co. KGaA
(Translation of registrant's name into English)

Else-Kröner Strasse 1
61346 Bad Homburg
Germany
(Address of principal executive offices)

        Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

        Form 20-F     ý                           Form 40-F     o

        Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1) :            

        Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):            

        Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

        Yes     o                                          No     ý

        If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-                        .

   


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Interim Report of Financial Condition and Results of Operations for the three and six months ended June 30, 2019 and 2018

 
  Page  

FINANCIAL INFORMATION

       

Management's discussion and analysis

   
 
 

Forward-looking statements

    1  

Financial condition and results of operations

    3  

Discussion of measures

    8  

Business metrics for Care Coordination

    13  

Results of operations, financial position and net assets

    14  

Outlook

    39  

Recently issued accounting standards

    40  

Financial Statements (unaudited)

   
 
 

Consolidated statements of income

    41  

Consolidated statements of comprehensive income

    42  

Consolidated balance sheets

    43  

Consolidated statements of cash flows

    44  

Consolidated statement of shareholders' equity

    45  

Notes to consolidated financial statements

    46  

Quantitative and qualitative disclosures about market risk

    77  

Controls and procedures

    78  

OTHER INFORMATION

   
 
 

Legal Proceedings

   
79
 

Submission of matters to a vote of security holders

    79  

Exhibits

    80  

Signatures

    81  

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FINANCIAL INFORMATION

Management's discussion and analysis

In this report, "FMC-AG & Co. KGaA," or the "Company," "we," "us" or "our" refers to the Company or the Company and its subsidiaries on a consolidated basis, as the context requires. You should read the following discussion and analysis of the results of operations of the Company and its subsidiaries in conjunction with our unaudited consolidated financial statements and related notes contained elsewhere in this report and our disclosures and discussions in our consolidated financial statements for the year ended December 31, 2018 prepared in accordance with International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board ("IASB"), using the euro as our reporting currency. At June 30, 2019, there were no IFRS or International Financial Reporting Interpretation Committee ("IFRIC") interpretations as endorsed by the European Union relevant for interim reporting that differed from IFRS as issued by the IASB.

The term "North America Segment" refers to our North America operating segment, the term "EMEA Segment" refers to the Europe, Middle East and Africa operating segment, the term "Asia-Pacific Segment" refers to our Asia-Pacific operating segment, and the term "Latin America Segment" refers to our Latin America operating segment. The term "Corporate" includes certain headquarters' overhead charges, including accounting and finance, centrally managed production, asset management, quality management, procurement and research and development. The abbreviation "M" is used to denote the presentation of amounts in millions. The term "Constant Currency" or at "Constant Exchange Rates" means that we have translated local currency revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items for the current reporting period into euro using the prior year exchange rates to provide a comparable analysis without effect from exchange rate fluctuations on translation, as described below under "Financial condition and results of operations—II. Discussion of measures—Non-IFRS measures—Constant currency information."

Forward-looking statements

This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). When used in this report, the words "outlook," "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates" and similar expressions are generally intended to identify forward looking statements. Although we believe that the expectations reflected in such forward-looking statements are reasonable, forward-looking statements are inherently subject to risks and uncertainties, many of which cannot be predicted with accuracy and some of which might not even be anticipated, and future events and actual results, financial and otherwise, could differ materially from those set forth in or contemplated by the forward-looking statements contained elsewhere in this report. We have based these forward-looking statements on current estimates and assumptions made to the best of our knowledge. By their nature, such forward-looking statements involve risks, uncertainties, assumptions and other factors which could cause actual results, including our financial condition and profitability, to differ materially, positively or negatively, relative to the results expressly or implicitly described in or suggested by these statements. Moreover, forward-looking estimates or predictions derived from third parties' studies or information may prove to be inaccurate. Consequently, we cannot give any assurance regarding the future accuracy of the opinions set forth in this report or the actual occurrence of the projected developments described herein. In addition, even if our future results meet the expectations expressed here, those results may not be indicative of our performance in future periods.

These risks, uncertainties, assumptions, and other factors, including associated costs, could cause actual results to differ from our projected results and include, among others, the following:

changes in governmental and commercial insurer reimbursement for our complete products and services portfolio, including the United States ("U.S.") Medicare reimbursement system for dialysis and other health care services, including potentially significant changes that could be enacted due to the announced intention of the Trump administration to continue its efforts to repeal and replace the Patient Protection and Affordable Care Act ("ACA");

the outcome of government and internal investigations as well as litigation;

risks relating to compliance with current and future government regulations applicable to our business including, in the U.S., the Anti-Kickback Statute, the False Claims Act, the Stark Law, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and

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possible future disruptions in federal government agencies' operations and funding that could negatively impact regulatory approvals for our pharmaceutical products, medical devices and regulatory guidance;

the influence of commercial insurers and integrated care organizations, including efforts by these organizations to manage costs by limiting healthcare benefits, reducing provider reimbursement and/or restricting options for patient funding of health insurance premiums;

the impact of health care, tax and trade law reforms and regulation, including those proposed and enacted by the Trump administration in the U.S.;

product liability risks;

risks relating to our ability to continue to make acquisitions;

risks relating to our ability to attract and retain skilled employees, including shortages of skilled clinical personnel;

the impact of currency fluctuations;

potential impairment loss on assets in the Latin America Segment due to decreases in the recoverable amount of those assets relative to their book value;

our ability to protect our information technology systems against cyber security attacks or prevent other data privacy or security breaches;

changes in our costs of purchasing and utilization patterns for pharmaceuticals;

introduction of generic or new pharmaceuticals and medical devices that compete with our products or services or the development of pharmaceuticals that greatly reduce the progression of chronic kidney disease;

launch of new technology, advances in medical therapies, or new market entrants that compete with our medical businesses;

changes in raw material and energy costs or the inability to procure raw materials;

collectability of our receivables, which depends primarily on the efficacy of our billing practices and the financial stability and liquidity of our governmental and commercial payors;

our ability to achieve cost savings in various health care risk management programs in which we participate or intend to participate; and

the greater size, market power, experience and product offerings of certain competitors in certain geographic regions and business lines.

Important factors that could contribute to such differences are noted in "Financial condition and results of operations—I. Overview" below, in note 12 of the notes to consolidated financial statements (unaudited) included in this report, in note 22 of the notes to consolidated financial statements included in our Annual Report on Form 20-F for the year ended December 31, 2018, as well as under "Risk Factors," "Business overview," "Operating and financial review and prospects," and elsewhere in that report.

Our business is also subject to other risks and uncertainties that we describe from time to time in our public filings. Developments in any of these areas could cause our results to differ materially from the results that we or others have projected or may project.

Our reported financial condition and results of operations are sensitive to accounting methods, assumptions and estimates that are the basis of our financial statements. The actual accounting policies, the judgments made in the selection and application of these policies as well as the sensitivities of reported results to changes in accounting policies, assumptions and estimates are factors to be considered along with our financial statements and the discussion under "Results of operations, financial position and net assets" below.

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IFRS 16, Leases ("IFRS 16") replaces the straight-line operating lease expense for former leases under IAS 17, Leases ("IAS 17") with a depreciation charge for the lease asset and an interest expense on the lease liability as well as the classification of certain IAS 17 leases (such effects being, collectively "IFRS 16 Implementation"). As a result of the IFRS 16 Implementation, we have updated our accounting policies accordingly. Please refer to note 1 of the notes to consolidated financial statements (unaudited) included in this report for further details on the updated policies. Excluding the policy update for IFRS 16, there have been no significant changes during the six months ended June 30, 2019 to the items disclosed within the critical accounting policies and estimates in notes 1 and 2 to the consolidated financial statements in our annual report on Form 20-F for the year ended December 31, 2018 in accordance with IFRS as issued by the IASB.

Rounding adjustments applied to individual numbers and percentages shown in this and other reports may result in these figures differing immaterially from their absolute values.

Financial condition and results of operations

I.     Overview

We are the world's largest kidney dialysis company, based on publicly reported sales and number of patients treated. We provide dialysis care and related services to persons who suffer from end stage renal disease ("ESRD") as well as other health care services. We develop and manufacture a wide variety of health care products, which includes both dialysis and non-dialysis products. Our dialysis products include dialysis machines, water treatment systems and disposable products while our non-dialysis products include acute cardiopulmonary and apheresis products. We sell our health care products to customers in around 150 countries and we also use them in our own health care service operations. Our dialysis business is therefore vertically integrated. We describe certain other health care services that we provide in our North America Segment and our Asia-Pacific Segment as "Care Coordination." Care Coordination currently includes, but is not limited to, coordinated delivery of pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology services, health plan services, urgent care services and ambulant treatment services. Until June 28, 2018, Care Coordination also included the coordinated delivery of emergency, intensivist and hospitalist physician services as well as transitional care which we refer to as "hospital related physician services" (see note 2 (b) of the notes to the consolidated financial statements (unaudited) included in this report). All of these Care Coordination services together with dialysis care and related services represent our health care services. We estimated the volume of the global dialysis market was approximately €71 billion in 2018. Due to the complexity and evolving nature of Care Coordination services, we are currently unable to estimate the global volume of this market. Dialysis patient growth results from factors such as the aging population and increased life expectancies; shortage of donor organs for kidney transplants; increasing incidence of kidney disease and better treatment of and survival of patients with diabetes, hypertension and other illnesses, which frequently lead to the onset of chronic kidney disease; improvements in treatment quality, new pharmaceuticals and product technologies, which prolong patient life; and improving standards of living in developing countries, which make life-saving dialysis treatment available. We are also engaged in different areas of health care research.

As a global company delivering health care services and products, we face the challenge of addressing the needs of a wide variety of stakeholders, such as patients, customers, payors, regulators and legislators in many different economic environments and health care systems. In general, government-funded programs (in some countries in coordination with private insurers) pay for certain health care items and services provided to their citizens. Not all health care systems provide for dialysis treatment. Therefore, the reimbursement systems and ancillary services utilization environment in various countries significantly influence our business.

Premium assistance programs

On August 18, 2016, the Centers for Medicare and Medicaid Services ("CMS") issued a request for information ("RFI") seeking public comment about providers' alleged steering of patients inappropriately to individual plans offered on the Patient Protection and Affordable Care Act individual health insurance market. Fresenius Medical Care Holdings, Inc. ("FMCH") and other dialysis providers, commercial insurers and other industry participants responded to the RFI, and in that response, we reported that we do not engage in such steering. On December 14, 2016, CMS published an Interim Final Rule ("IFR") titled "Medicare Program; Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payment" that would amend the Conditions for Coverage for dialysis providers, like FMCH. The IFR

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would have effectively enabled insurers to reject premium payments made by patients who received grants for individual market coverage from the American Kidney Fund ("AKF") and, therefore, could have resulted in those patients losing their individual market health insurance coverage. The loss of individual market coverage for these patients would have had a material and adverse impact on our operating results. On January 25, 2017, a federal district court in Texas, responsible for litigation initiated by a patient advocacy group and dialysis providers including FMCH, preliminarily enjoined CMS from implementing the IFR ( Dialysis Patient Citizens v. Burwell (E.D. Texas, Sherman Div.) ). The preliminary injunction was based on CMS' failure to follow appropriate notice-and-comment procedures in adopting the IFR. The injunction remains in place and the court retains jurisdiction over the dispute. On June 22, 2017, CMS requested a stay of proceedings in the litigation pending further rulemaking concerning the IFR. CMS stated, in support of its request that it expects to publish a Notice of Proposed Rulemaking in the Federal Register and otherwise pursue a notice-and-comment process in the fall of 2017 which they ultimately did not publish. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court.

Separately, the United States Department of Health and Human Services ("HHS") announced in its fall 2018 semi-annual review of agency actions, or "unified agenda," that it was considering the publication of a new proposed rule, ostensibly consistent with the Court's order on the IFR, that would establish requirements for ESRD facilities treating patients that accept financial assistance from third parties for premiums to enroll in coverage provided by an individual market plan (RIN 0938-AT11). On June 6, 2019, CMS sent a proposed rule modifying the ESRD conditions for Coverage and addressing Third Party Premium Payments to the Office of Management and Budget for review.

The operation of charitable assistance programs like that of the AKF is also receiving increased attention by state insurance regulators and legislators. The result may be a regulatory framework that differs from state to state. Even in the absence of the IFR or similar administrative actions, insurers are likely to continue efforts to thwart charitable premium assistance to our patients for individual market plans and other insurance coverages. If successful, these efforts would have a material adverse impact on our operating results.

On January 3, 2017, FMCH received a subpoena from the United States Attorney for the District of Massachusetts inquiring into its interactions and relationships with AKF, including its charitable contributions to the Fund and the Fund's financial assistance to patients for insurance premiums. FMCH is cooperating with the investigation.

For further information on these and other legal proceedings, please see note 12 of the notes to consolidated financial statements (unaudited) found elsewhere in this report.

U.S. ballot initiatives and other legislation

Further federal or state legislation or regulations may be enacted in the future through legislative and public referendum processes that could substantially modify or reduce the amounts paid for services and products offered by us and our subsidiaries and/or mandate new or alternative operating models and payment models that could present more risk to our healthcare service operations. Ballot initiatives that are successfully introduced at the state level in the United States require the vote of state citizens to directly adopt or reject proposed new legislation. These ballot initiatives require a material expenditure of resources by us to participate in public discourse regarding the proposed new legislation underlying the initiatives, which if passed, could further regulate multiple aspects of our operations including, for instance, clinic staffing requirements, state inspection requirements and profit margins on commercial business. Efforts to enact new state laws regarding our operations are continuing. State regulation at this level would introduce an unprecedented level of oversight and additional expense at the clinic level which could have a material adverse effect on our business in the impacted states. It is also possible that statutes may be adopted or regulations may be promulgated in the future that impose additional eligibility requirements for participation in the federal and state healthcare programs. Such new legislation or regulations could, depending upon the detail of the provisions, have positive or adverse effects, possibly material, on our businesses and results of operations.

Significant U.S. reimbursement developments

The majority of health care services we provide are paid for by governmental institutions. For the six months ended June 30, 2019, approximately 33% of our consolidated revenue is attributable to U.S. federally-funded health care benefit programs, such as Medicare and Medicaid reimbursement, under

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which reimbursement rates are set by CMS. Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide. To date, the stability of reimbursement in the U.S. has been affected by (i) the implementation of the ESRD prospective payment system ("ESRD PPS") in January 2011, (ii) the U.S. federal government across the board spending cuts in payments to Medicare providers commonly referred to as "U.S. Sequestration," (iii) the reduction to the ESRD PPS rate to account for the decline in utilization of certain drugs and biologicals associated with dialysis pursuant to the American Taxpayer Relief Act of 2012 ("ATRA") as subsequently modified under the Protecting Access to Medicare Act of 2014 ("PAMA") and (iv) CMS' 2017 final rule on the Physician Fee Schedule, which partially corrected reimbursement for certain procedures that were materially undervalued in 2016. Please see the detailed discussions on these and further legislative developments below:

Under the Medicare Improvements for Patients and Providers Act of 2008 ("MIPPA"), for patients with Medicare coverage, all ESRD payments for dialysis treatments are made under a single bundled payment rate which provides a fixed payment rate, the ESRD PPS, to encompass substantially all goods and services provided during the dialysis treatment. MIPPA further created the ESRD quality incentive program ("QIP") which provides that dialysis facilities that fail to achieve quality standards established by CMS could have payments reduced, determined on an annual basis, by up to 2%.

MIPPA also includes a provision for an annual adjustment to the ESRD PPS base rate based on changes in the costs of a "market basket" of certain healthcare items and services, less a productivity adjustment.

Additionally, as a result of the Budget Control Act of 2011 ("BCA") and subsequent activity in Congress, U.S. Sequestration ($1.2 trillion in across-the-board spending cuts in discretionary programs) took effect on March 1, 2013 and is expected to continue through mid-2024. In particular, a 2% reduction to Medicare payments took effect on April 1, 2013 and continues in force. Spending cuts pursuant to U.S. Sequestration have adversely affected and will continue to adversely affect our operating results.

In 2014, as mandated by ATRA, CMS issued a final rule for the ESRD PPS, which phased in payment reductions to account for changes in utilization of certain drugs and biologicals that are included in the ESRD PPS, which were subsequently modified by PAMA. These reductions reduced our market basket inflation adjustment by 1.25% in 2016 and 2017, and reduced our inflation adjustment by 1% in 2018.

On July 29th, 2019 CMS issued the proposed rule and updated the ESRD PPS rate for 2020. CMS estimates that FMC and other large dialysis organizations will experience a 1.5% increase in payments under this proposed rule. The base rate per treatment is $240.27 which represents a 2% increase from the 2019 base rate including the adjustment for the wage index budget-neutrality factor and a productivity-adjusted market basket increase of 1.7%. CMS updated the acute kidney injury dialysis payment rate for calendar year ("CY") 2020 to $240.27, which is the same as the base rate finalized under the ESRD PPS for CY 2020. CMS proposes to extend TDAPA for calcimimetics for a third year in CY 2020 to collect sufficient claims data for rate setting analysis. However, CMS proposes to reduce the basis of payment for the TDAPA for calcimimetics for CY 2020 from ASP+6 to ASP+0. CMS will also narrow eligibility for TDAPA for certain drugs that fall within an existing functional category by revising the definition of a new renal dialysis drug or biological product. CMS proposes to pay a transitional add-on payment adjustment for certain new and innovative renal dialysis equipment or supplies approved after January 1, 2020 and furnished by ESRD facilities. Under the proposal, new equipment and supplies must meet the substantial clinical improvement criteria similar to that specified in the Inpatient Prospective Payment System (IPPS) regulations at 42 CFR 412.87(b)(1).

The CY 2020 ESRD PPS proposed rule, released on July 29, 2019, also updated the ESRD Quality Incentive Program (QIP), for payment years (PY) 2022 and 2023, under which payments made to dialysis facilities are subject to reduction based on clinical measures. For PY 2022, based on performance period CY2020, the ESRD QIP measure set will contain 14 measures including the two measures beginning with payment year 2022 (the Percentage of Prevalent Patients Waitlisted (PPPW) clinical measure and the Medication Reconciliation for Patients Receiving Care at Dialysis Facilities (MedRec) reporting measure), which were finalized in the CY 2019 ESRD PPS rule. For PY 2022, CMS proposes to convert the Standardized Transfusion Ratio (STrR) measure from a clinical measure to a reporting measure, which reflects stakeholder concerns regarding the measure's validity. This means facilities will now receive a score on the STrR reporting measure based on the successful reporting of data, not on the values actually reported. CMS also proposes to update the scoring

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On July 29, 2019, CMS issued the CY 2020 proposed rule for hospital outpatient and ambulatory surgery center payment systems. For CY 2020, CMS will continue to pay certain dialysis vascular access codes at the Ambulatory Surgical Center ("ASC") rate. We continue to evaluate the implications of the proposed rule.

Presently, there is considerable uncertainty regarding possible future changes in health care regulation, including the regulation of reimbursement for dialysis services. See "Risk factors—We operate in a highly regulated industry such that the potential for legislative reform provides uncertainty and potential threats to our operating models and results" which is included in our Annual Report on Form 20-F for the year ended December 31, 2018.

In a final rule published on November 6, 2015, CMS provided for implementation of the PAMA oral-only provision. CMS clarified that once any non-oral ESRD-related drug in a category previously considered oral only is approved by the U.S. Food and Drug Administration ("FDA"), such category of drugs will cease to be considered oral only. However, for at least two years, CMS will pay for both oral and non-oral versions of the drug using a TDAPA. During this transition period, CMS will not pay outlier payments for these drugs, but the agency will collect data reflecting utilization of both the oral and injectable or intravenous forms of the drugs, as well as payment patterns, in order to help determine how to appropriately adjust the ESRD PPS payment rate as these drugs are included in the payment bundle. At the end of this transition period, CMS will incorporate payment for the oral and non-oral versions of the drug in the ESRD PPS payment rates, utilizing a public rulemaking process.

The introduction of Parsabiv™ an intravenous calcimimetic, will also result in changes in how some payors, other than Medicare, arrange for the provision of calcimimetics for their patients. While some patients will continue to receive calcimimetics from their pharmacies as a pharmacy benefit, other patients may receive calcimimetics from their dialysis providers, as a medical benefit. While we anticipate receiving additional reimbursement from payors when these drugs are provided by our clinics, this type of transition from an oral-only drug has not occurred previously and the reimbursement landscape for non-Medicare payors is still being developed.

Several generic calcimimetic products have been approved by the FDA. Fresenius Medical Care Holdings, Inc., "FMCH") has been able to purchase certain of these generic calcimemetic products at rates that are lower than the rate paid for the brand name calcimemetic, Sensipar. As a result, FMCH has been able to realize a savings in cost. Amgen, Inc. ("Amgen"), the manufacturer of Sensipar, has taken steps to prevent the continued sale of the generic products through settlement and legal action. If Amgen is successful in preventing the continued sale of generic calcimemetics, FMCH might not be able to purchase a lower priced alternative and continue to realize cost savings, which could have an adverse effect on our business, results of operations and financial condition.

If we are unable to secure and maintain appropriate reimbursement arrangements for calcimimetics when provided by our dialysis clinics, we could experience a material adverse effect on our business, results of operations and financial condition. See "Risk Factors—If we are unable to secure appropriate reimbursement arrangements for the pharmaceuticals we provide in our dialysis clinics, our business could be adversely affected" in our Annual Report on Form 20-F for the year ended December 31, 2018.

Participation in new Medicare payment arrangements

Under CMS' Comprehensive ESRD Care Model (the "Model"), dialysis providers and physicians can form entities known as ESRD Seamless Care Organizations, or "ESCOs," as part of a new payment and care delivery model that seeks to deliver better health outcomes for Medicare ESRD patients while lowering CMS' costs. Following our initial participation in six ESCOs, we are presently participating in the Model through 24 ESCOs formed at our dialysis facilities. ESCOs that achieve the program's minimum quality thresholds and generate reductions in CMS' cost of care above certain thresholds for the ESRD

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patients covered by the ESCO will receive a share of the cost savings, which is adjusted based on the ESCO's performance on certain quality metrics. ESCOs that include dialysis chains with more than 200 facilities are required to share in the risk of cost increases and to reimburse CMS a share of any such increases if actual costs rise above set thresholds. The number of patients participating in our ESCOs increased from approximately 46,000 as of January 1, 2019 to approximately 48,000 as of June 30, 2019.

In November 2017, we announced the results from the first performance year from our ESCOs. The results, which cover the period from October 2015 through December 2016, show improved health outcomes for patients receiving coordinated care through the ESCOs. This success was validated by an independent report, which showed a nearly 9% decrease in hospitalization rates for these patients during the same time. As a result, the Company's ESCOs together generated more than $43 M in gross savings, an average 5.47% reduction in expenditures per patient, with all six of its first-year ESCOs exceeding the shared savings benchmark. Final performance year settlement reports have not yet been provided by CMS to finalize ESCO performance results for 2017. Preliminary reports received during 2019 for PY2 and PY3, indicate that our ESCO program has experienced a reduction in patient attribution as well as a lower savings rate than data had previously indicated. Based upon these 2019 preliminary reports, we recorded a reduction of revenue and operating income of approximately €41 million for the six months ended June 30, 2019. We will continue to evaluate the changing ESCO rate environment.

As of January 1, 2019, we no longer provide any Medicare Advantage ESRD Chronic Conditions Special Needs Plan ("MA-CSNP") products.

We have also entered into sub-capitation and other risk-based and value-based arrangements with certain payors to provide care to commercial, including Medicare Advantage, ESRD patients. Under these arrangements, a baseline per patient per month amount is established. If the cost of complete care is less than the baseline, we retain the difference. If the cost of complete care exceeds the baseline, we may owe the payor the difference.

Executive order-based models

On July 10, 2019, President Trump signed an Executive Order on advancing kidney health. Among other things, the order instructs the Secretary of HHS to develop new Medicare payment models that will encourage identification and treatment earlier in kidney disease progression as well as increase home dialysis and transplant. One of those models, the ESRD Treatment Choices ("ETC") model, is a mandatory model that will create financial incentives for home treatment and transplant. This model proposes to apply a positive payment adjustment to claims submitted by physicians and dialysis facilities for home dialysis patients for 3 years. This model also proposes a payment adjustment based on performance. The performance-based adjustment will be based on home dialysis and transplant rates and will range from (8%) to 5% in the first payment year to (13%) and 10% percent in the final payment year. The ETC model proposes a start date of January 2020 and would end in 2026. Participants in this model will be selected randomly. Per the Executive Order, the Secretary also announced voluntary payment models, Kidney Care First ("KCF") and Comprehensive Kidney Care Contracting ("CKCC") (graduated, professional and global), which aims to build on the existing Comprehensive End Stage Renal Disease Care model. The voluntary models create financial incentives for health care providers to manage care for Medicare beneficiaries with chronic kidney disease stages 4 and 5 and with ESRD to delay the start of dialysis and to incentivize kidney transplant. The voluntary models allow health care providers to take on various amounts of risk. One model, the CKCC global model, allows participating organizations to assume risk for 100 percent of the total cost of care for all Medicare Part A and B services for aligned beneficiaries. The KCF model limits participation to nephrologists while the CKCC model requires both nephrologists or nephrology practices and transplant providers. Dialysis providers and other suppliers may participate. The voluntary models are expected to begin in January 2020 and end in 2023. It is too soon to predict the effects of the ETC payment model and the voluntary payment models.

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Company structure

Our operating segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how we manage our businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESRD and other extracorporeal therapies. Management evaluates each segment using measures that reflect all of the segment's controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate IFRS measures are revenue, operating income and operating income margin. We do not include income taxes as we believe this is outside the segments' control. Financing is a corporate function which our segments do not control. Therefore, we do not include interest expense relating to financing as a segment measurement. Similarly, we do not allocate certain costs which relate primarily to certain headquarters' overhead charges, including accounting and finance, because we believe that these costs are also not within the control of the individual segments. Production of products, production asset management, quality and supply chain management as well as procurement related to production are centrally managed at Corporate. Global research and development is also centrally managed at Corporate. These corporate activities do not fulfill the definition of a segment according to IFRS 8. Products are transferred to the segments at cost; therefore, no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities (see note 14 of the notes to consolidated financial statements (unaudited) found elsewhere in this report). Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but accounted for as Corporate. Accordingly, all of these items are excluded from our analysis of segment results and are discussed below in the discussion of our consolidated results of operations.

II.  Discussion of measures

Non-IFRS measures

Certain of the following key performance indicators and other financial information as well as discussions and analyses set out in this report include measures that are not defined by IFRS ("Non-IFRS Measure"). We believe this information, along with comparable IFRS measurements, is useful to our investors as it provides a basis for assessing our performance, payment obligations related to performance-based compensation as well as our compliance with financial covenants. Non-IFRS financial measures should not be viewed or interpreted as a substitute for financial information presented in accordance with IFRS.

Delivered EBIT (Non-IFRS Measure)

As a result of the significance of noncontrolling interest holders in our operations, we believe a measure that is meaningful to investors is operating income less noncontrolling interests ("Delivered EBIT"). Delivered EBIT approximates the operating income attributable to the shareholders of FMC-AG & Co. KGaA. As such, we believe that operating income, or EBIT, is the closest comparable IFRS measure. Delivered EBIT is also benchmarked based on movement at constant exchange rates. See "Constant currency information" below.

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Below is a table showing the reconciliation of operating income to Delivered EBIT on a consolidated basis and for our reporting segments:

Delivered EBIT reconciliation


in € M

 

 
  Three months
ended
June 30
  Six months
ended June 30
 
 
  2019   2018   2019   2018  

Total

                         

Operating income (EBIT)

    521     1,401     1,058     1,898  

less noncontrolling interests

    (61 )   (61 )   (118 )   (112 )

Delivered EBIT

    460     1,340     940     1,786  

North America

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    429     1,286     801     1,648  

less noncontrolling interests

    (57 )   (58 )   (111 )   (106 )

Delivered EBIT

    372     1,228     690     1,542  

Dialysis

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    428     417     760     766  

less noncontrolling interests

    (55 )   (52 )   (103 )   (97 )

Delivered EBIT

    373     365     657     669  

Care Coordination

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    1     869     41     882  

less noncontrolling interests

    (2 )   (6 )   (8 )   (9 )

Delivered EBIT

    (1 )   863     33     873  

EMEA

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    96     105     235     214  

less noncontrolling interests

    (2 )   (1 )   (3 )   (2 )

Delivered EBIT

    94     104     232     212  

Asia-Pacific

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    69     78     164     152  

less noncontrolling interests

    (2 )   (2 )   (4 )   (4 )

Delivered EBIT

    67     76     160     148  

Dialysis

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    64     72     154     140  

less noncontrolling interests

    (1 )   (2 )   (4 )   (3 )

Delivered EBIT

    63     70     150     137  

Care Coordination

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    5     6     10     12  

less noncontrolling interests

    (1 )           (1 )

Delivered EBIT

    4     6     10     11  

Latin America

   
 
   
 
   
 
   
 
 

Operating income (EBIT)

    6     11     17     25  

less noncontrolling interests

    0     0     0     0  

Delivered EBIT

    6     11     17     25  

Net cash provided by (used in) operating activities in % of revenue

Our consolidated statement of cash flows indicates how we generated and used cash and cash equivalents. In conjunction with our other primary financial statements, it provides information that helps us evaluate changes to our net assets and our financial structure (including liquidity and solvency). Net cash provided

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by (used in) operating activities is applied to assess whether a business can generate the cash required to make the necessary replacement and expansion of investments. This indicator is impacted by the profitability of our business and the development of working capital, mainly receivables. Net cash provided by (used in) operating activities in percent of revenue shows the percentage of our revenue that is available in terms of financial resources. It is an indicator of our operating financial strength.

Free cash flow in % of revenue (Non-IFRS Measure)

Free cash flow (net cash provided by (used in) operating activities after capital expenditures, before acquisitions and investments) refers to the cash flow we have at our disposal. This indicator shows the percentage of revenue available for acquisitions and investments, dividends to shareholders, reducing debt financing or for repurchasing shares.

The following table shows the cash flow key performance indicators for the six months ended June 30, 2019 and 2018 and reconciles free cash flow and free cash flow in percent of revenue to Net cash provided by (used in) operating activities and Net cash provided by (used in) operating activities in percent of revenue, respectively:

Cash flow measures


in € M, except where otherwise specified

 

 
  For the six months
ended June 30,
 
 
  2019   2018  

Revenue

    8,478     8,189  

Net cash provided by (used in) operating activities

    928     611  

Capital expenditures

    (497 )   (466 )

Proceeds from sale of property, plant and equipment

    4     20  

Capital expenditures, net

    (493 )   (446 )

Free cash flow

    435     165  

Net cash provided by (used in) operating activities in % of revenue

    10.9 %   7.5 %

Free cash flow in % of revenue

    5.1 %   2.0 %

Net leverage ratio (Non-IFRS Measure)

The Net Leverage Ratio is a key performance indicator used for internal management. To determine the Net Leverage Ratio, debt less cash and cash equivalents (net debt) is compared to EBITDA (earnings before interest, taxes, depreciation and amortization) (adjusted for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in our Amended 2012 Credit Agreement and non-cash charges). The ratio is an indicator of the length of time the Company needs to service the net debt out of its own resources. We believe that the Net Leverage Ratio provides alternative information that management believes to be useful in assessing our ability to meet our payment obligations in addition to considering the absolute amount of our debt. We have a strong market position in a growing, global and mainly non-cyclical market. Furthermore, most of our customers have a high credit rating as the dialysis industry is characterized by stable and sustained cash flows. We believe this enables us to work with a relatively large share of debt capital compared with companies in other

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industries. The following table shows the reconciliation of Net Leverage Ratio as of June 30, 2019 and December 31, 2018.

Reconciliation of net leverage ratio


in € M, except where otherwise specified

 

 
   
  Adjusted for
IFRS 16
   
 
 
  June 30,
2019
  June 30,
2019
  December 31,
2018
 

Debt

    13,410     8,846     7,546  

Cash and cash equivalents

    922     922     2,146  

Net Debt

    12,488     7,924     5,400  

Operating Income (1)(2)(3)

   
2,653
   
2,178
   
2,215
 

Depreciation and amortization (1)(2)

    1,141     802     716  

Non-cash charges (2)

    45     45     45  

EBITDA (1)(2)(3)

    3,839     3,025     2,976  

Net leverage ratio (1)(3)

    3.3     2.6     1.8  

(1)
Including adjustments for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in the Amended 2012 Credit Agreement.

(2)
Last 12 months.

(3)
Excluding the loss related to divestitures of Care Coordination activities (see note 2 (b) of the notes to the consolidated financial statements (unaudited) included in this report) and excluding NxStage related transaction costs.

Return on invested capital ("ROIC") (Non-IFRS Measure)

ROIC is the ratio of operating income, for the last twelve months, after tax ("net operating profit after tax" or "NOPAT") to the average invested capital of the last five quarter closing dates and expresses how efficiently we allocate the capital under our control or how well we employ our capital with regard to a specific investment project. The following table shows the reconciliation of average invested capital to total assets, which we believe to be the most directly comparable IFRS financial measure, and how ROIC is calculated:

Reconciliation of Average Invested Capital and ROIC


in € M, except where otherwise specified 2019

 

 
  June 30,
2019 (1)
  March 31,
2019 (1)
  December 31,
2018 (2)
  September 30,
2018 (2)
  June 30,
2018 (2)
 

Total assets

    27,784     28,125     28,200     27,524     26,968  

Plus: Cumulative goodwill amortization

    416     419     413     407     405  

Minus: Cash and cash equivalents

    (922 )   (959 )   (2,187 )   (1,795 )   (1,698 )

Minus: Loans to related parties

    (62 )   (81 )   (81 )   (112 )   (118 )

Minus: Deferred tax assets

    (324 )   (303 )   (346 )   (328 )   (334 )

Minus: Accounts payable

    (680 )   (708 )   (658 )   (628 )   (576 )

Minus: Accounts payable to related parties

    (156 )   (210 )   (154 )   (194 )   (183 )

Minus: Provisions and other current liabilities (3)

    (2,662 )   (2,748 )   (2,774 )   (2,794 )   (2,735 )

Minus: Income tax payable

    (176 )   (162 )   (165 )   (209 )   (329 )

Invested capital

    23,218     23,373     22,248     21,871     21,400  

Average invested capital as of June 30, 2019

    22,422                          

Operating income (1)(2)(4)

    2,067                          

Income tax expense (1)(2)(4)(5)

    (551 )                        

NOPAT (4)

    1,516                          

ROIC in %

    6.8 %                        

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2018
  December 31,
2018
  September 30,
2018 (2)
  June 30,
2018 (2)
  March 31,
2018 (2)
  December 31,
2017 (2)
 

Total assets

    26,242     25,587     25,045     23,091     22,930  

Plus: Cumulative goodwill amortization

    413     407     405     385     395  

Minus: Cash and cash equivalents

    (2,146 )   (1,754 )   (1,657 )   (800 )   (931 )

Minus: Loans to related parties

    (81 )   (112 )   (118 )   (109 )   (92 )

Minus: Deferred tax assets

    (345 )   (328 )   (334 )   (325 )   (315 )

Minus: Accounts payable

    (641 )   (611 )   (559 )   (496 )   (577 )

Minus: Accounts payable to related parties

    (154 )   (194 )   (183 )   (236 )   (147 )

Minus: Provisions and other current liabilities (3)

    (2,728 )   (2,748 )   (2,689 )   (2,406 )   (2,565 )

Minus: Income tax payable

    (165 )   (209 )   (330 )   (239 )   (194 )

Invested capital

    20,395     20,038     19,580     18,865     18,504  

Average invested capital as of December 31, 2018

    19,476                          

Operating income (2)

    3,024                          

Income tax expense (2)(5)

    (617 )                        

NOPAT

    2,407                          

ROIC in %

    12.4 %                        

(1)
Adjusted for the impact of the IFRS 16 implementation.

(2)
Including adjustments for acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as defined in the Amended 2012 Credit Agreement.

(3)
Including non-current provisions, non-current labor expenses and variable payments outstanding for acquisitions and excluding pension liabilities and noncontrolling interests subject to put provisions.

(4)
Last 12 months.

(5)
Adjusted for noncontrolling partnership interests.

EBITDA (Non-IFRS)

EBITDA is the basis for determining compliance with certain covenants contained in our Amended 2012 Credit Agreement and may also be relevant in other major financing arrangements. You should not consider EBITDA to be an alternative to net earnings determined in accordance with IFRS or to cash flow from operations, investing activities or financing activities. In addition, not all funds depicted by EBITDA are available for management's discretionary use. For example, a substantial portion of such funds are subject to contractual restrictions and functional requirements to fund debt service, capital expenditures and other commitments from time to time as described in more detail elsewhere in this report. A reconciliation of EBITDA to cash flow provided by (used in) operating activities, which we believe to be the most directly comparable IFRS financial measure, is calculated as follows:

Reconciliation of EBITDA to net cash provided by (used in) operating activities


in € M

 

 
  For the six
months ended
June 30,
 
 
  2019   2018  

Total EBITDA

    1,807     2,253  

Interest expense (net of interest income)

    (222 )   (168 )

Income tax expense

    (193 )   (345 )

Change in deferred taxes, net

    24     3  

Changes in operating assets and liabilities

    (457 )   (324 )

Compensation expense related to share-based plans

    3     8  

(Gain) loss on sale of fixed assets, right-of-use assets, investments and divestitures

    (21 )   (822 )

Other items, net

    (13 )   6  

Net cash provided by (used in) operating activities

    928     611  

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Constant currency information (Non-IFRS)

Some key performance indicators and other financial measures used in this report such as changes in revenue, operating income and net income attributable to shareholders of FMC-AG & Co. KGaA include the impact of translating local currencies to our reporting currency for financial reporting purposes. We calculate these Non-IFRS financial measures at constant exchange rates in our filings to show changes in our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items without giving effect to period-to-period currency fluctuations. Under IFRS, amounts received in local (non-euro) currency are translated into euro at the average exchange rate for the period presented. Once we translate the local currency for the constant currency, we then calculate the change, as a percentage, of the current period calculated using the prior period exchange rates versus the prior period. This resulting percentage is a Non-IFRS Measure referring to a change as a percentage at constant currency. These currency-adjusted financial measures are identifiable by the designated terms "Constant Exchange Rates" or "Constant Currency."

We believe that the measures at Constant Currency (Non-IFRS Measure) are useful to investors, lenders and other creditors because such information enables them to gauge the impact of currency fluctuations on our revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items from period to period. However, we limit our use of Constant Currency period-over-period changes to a measure for the impact of currency fluctuations on the translation of local currency into euro. We do not evaluate our results and performance without considering both Constant Currency period-over-period changes in Non-IFRS revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items and changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS. We caution the readers of this report to follow a similar approach by considering data on Constant Currency period-over-period changes only in addition to, and not as a substitute for or superior to, changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS. We present the growth rate derived from IFRS measures next to the growth rate derived from Non-IFRS measures such as revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items. As the reconciliation is inherent in the disclosure, we believe that a separate reconciliation would not provide any additional benefit.

Business metrics for Care Coordination

The measures for the North America Segment and the Asia-Pacific Segment discussed below include prior programs in which we participated and current and future programs that we will be participating in and will be reflected in the discussion of our business. Currently, in our North America Segment, sub-capitation, BPCI (until June 28, 2018—see note 2 of the notes to the consolidated financial statements (unaudited) included in this report), ESCO programs, MA-CSNPs (until December 31, 2018) and other shared savings programs are included within the Member Months and Medical Cost Under Management calculations below. In the future, other programs may be included in the metrics below. Note that due to the timing required by CMS to review the BPCI and ESCO program data that we provide, estimates have been used to report these metrics in a timely manner. The Asia-Pacific Segment Care Coordination metric currently used for discussion purposes is patient encounters. These metrics may be developed further in future periods. These metrics are neither IFRS measures nor non-IFRS measures and are therefore not accompanied by or reconciled to IFRS measures.

Member months under medical cost management

In our North America Segment, member months under medical cost management is calculated by multiplying the number of members included in value-based reimbursement programs, such as Medicare Advantage plans or other value-based programs in the U.S., by the corresponding number of months these members participate in those programs ("Member Months"). In the aforementioned programs, we assume the risk of generating savings. The financial results are recorded in earnings as our performance is determined. The membership offerings within Care Coordination are sub-capitation arrangements, MA-CSNPs (until December 31, 2018), ESCO and BPCI (until June 28, 2018—see note 2 of the notes to the consolidated financial statements (unaudited) included in this report) programs as well as other shared savings programs. An increase in patient membership may indicate future earnings or losses as our performance is determined through these managed care programs.

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Medical cost under management

In our North America Segment, medical cost under management represents the management of medical costs associated with our patient membership in value-based programs. For ESCO, BPCI (until June 28, 2018—see note 2 of the notes to the consolidated financial statements (unaudited) included in this report) and other shared savings programs, this is calculated by multiplying the Member Months in each program by the benchmark of expected medical costs per member per month. The sub-capitation and MA-CSNPs calculation multiplies the premium per member of the program per month by the number of Member Months associated with the plan, as noted above.

Care Coordination patient encounters

In the North America Segment and the Asia-Pacific Segment, Care Coordination patient encounters represents the total patient encounters and procedures conducted by certain of our Care Coordination activities and, we believe, is an indicator of the revenue generated. Care Coordination patient encounters in the North America Segment is the sum of all encounters and procedures completed during the period by Sound Inpatient Physicians, Inc. ("Sound") until June 28, 2018 (see note 2 of the notes to the consolidated financial statements (unaudited) included in this report), MedSpring Urgent Care Centers, Azura Vascular Care, and National Cardiovascular Partners, the trade name of Laurus Healthcare L.P., as well as patients in our Fresenius Medical Care Rx Bone Mineral Metabolism ("Rx BMM") program. Care Coordination patient encounters in the Asia-Pacific Segment is the sum of all encounters for the following services: ambulant treatment services in day care hospitals, comprehensive and specialized health check-ups, inpatient and outpatient services, vascular access and other chronic treatment services.

III.  Results of operations, financial position and net assets

The following sections summarize our results of operations, financial position and net assets as well as key performance indicators by reporting segment, as well as Corporate, for the periods indicated. We prepared the information using a management approach, consistent with the manner in which management internally disaggregates financial information to assist in making operating decisions and evaluating management performance.

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Results of operations

Segment data (including Corporate)


in € M

 

 
  For the three
months ended
June 30,
  For the six
months ended
June 30,
 
 
  2019   2018   2019   2018  

Total revenue

                         

North America

    3,061     2,971     5,948     5,746  

EMEA

    648     652     1,301     1,288  

Asia-Pacific

    458     422     886     814  

Latin America

    172     164     334     334  

Corporate

    6     5     9     7  

Total

    4,345     4,214     8,478     8,189  

Operating income

                         

North America

    429     1,286     801     1,648  

EMEA

    96     105     235     214  

Asia-Pacific

    69     78     164     152  

Latin America

    6     11     17     25  

Corporate

    (79 )   (79 )   (159 )   (141 )

Total

    521     1,401     1,058     1,898  

Interest income

    (2 )   (3 )   26     22  

Interest expense

    (112 )   (82 )   (248 )   (190 )

Income tax expense

    (92 )   (261 )   (193 )   (345 )

Net Income

    315     1,055     643     1,385  

Net Income attributable to noncontrolling interests

    (61 )   (61 )   (118 )   (112 )

Net Income attributable to shareholders of FMC-AG & Co. KGaA

    254     994     525     1,273  

Revenue and operating income generated in countries outside the eurozone are subject to currency fluctuations. The three and six months ended June 30, 2019 were positively impacted by the development of the euro against the U.S. dollar whereas the three and six months ended June 30, 2018 were negatively impacted by the development of the euro against the U.S. dollar. For the three- and six-month ended June 30, 2019, approximately 70% and 70% of revenue and approximately 82% and 76% of operating income were generated in U.S. dollars.

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Three months ended June 30, 2019 compared to three months ended June 30, 2018

Consolidated financials

Key indicators for the consolidated financial statements


in € M, except where otherwise specified

 

 
  For the three months ended
June 30
  Change in %  
 
  As
reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    4,345     4,214     3 %   0 %

Health care services

    3,455     3,385     2 %   (2 )%

Health care products

    890     829     7 %   6 %

Number of dialysis treatments

    12,958,732     12,410,835     4 %      

Same market treatment growth in %

    3.7 %   2.8 %            

Gross profit as a % of revenue

    30.6 %   31.0 %            

Selling, general and administrative costs as a % of revenue

    18.5 %   17.0 %            

Operating income

    521     1,401     (63 )%   (65 )%

Operating income margin in %

    12.0 %   33.3 %            

Delivered EBIT (2)

    460     1,340     (66 )%   (67 )%

Net income attributable to shareholders of FMC-AG & Co. KGaA

    254     994     (74 )%   (76 )%

Basic earnings per share

    0.84     3.24     (74 )%   (76 )%

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

Health care services revenue increased by 2% including a 4% positive impact from foreign currency translation effects. At Constant Exchange Rates, health care services revenue decreased by 2% largely due to decreases attributable to prior year revenue associated with the divested Sound activities as well as the effect of closed or sold clinics (9%), partially offset by growth in same market treatments (4%), contributions from acquisitions (2%) and increases in organic revenue per treatment (1%).

Dialysis treatments increased by 4% as a result of growth in same market treatments (4%) and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (1%).

At June 30, 2019, we owned, operated or managed (excluding those managed but not consolidated in the U.S.) 3,996 dialysis clinics compared to 3,815 dialysis clinics at June 30, 2018. During the three months ended June 30, 2019, we acquired 7 dialysis clinics, opened 39 dialysis clinics and combined or closed 21 clinics. The number of patients treated in dialysis clinics that we own, operate or manage (excluding patients of dialysis clinics managed but not consolidated in the U.S.) increased by 4% to 339,550 at June 30, 2019 from 325,188 at June 30, 2018.

Health care product revenue increased by 7% including a 1% positive impact from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 6%. Dialysis product revenue increased by 8%, including a 2% positive impact from foreign currency translation. At Constant Exchange Rates, dialysis product revenue increased by 6% driven by higher sales of home hemodialysis products (largely as a result of the acquisition of NxStage Medical Inc. ("NxStage")), products for acute care treatments, peritoneal dialysis products, and renal pharmaceuticals, partially offset by lower sales of machines as a result of changes in the accounting treatment for sale-leaseback transactions due to the IFRS 16 Implementation and lower sales of dialyzers. Non-dialysis product revenue decreased by 8% to €17 M from €18 M with no foreign currency translation effects.

The decrease period over period in the gross profit margin was 0.4 percentage points. Foreign currency translation effects represented a 0.1 percentage point positive impact in the current period. The decrease primarily reflects decreases in the EMEA Segment, partially offset by an increase in the North America Segment. The decrease in the EMEA Segment was mainly driven by an unfavorable impact from an inventory revaluation, the impact from lower product sales, higher personnel expense in certain countries, unfavorable foreign currency transaction effects as well as other smaller cost increases, partially offset by a

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positive effect from the IFRS 16 Implementation (see note 1 of the notes to the consolidated financial statements (unaudited) included in this report). The increase in the North America Segment was mainly attributable to the positive current year effect from the divestiture of Sound which operated at lower margins, higher utilization of oral based ancillaries with favorable margins, a positive effect from the IFRS 16 Implementation and the impact from the acquisition of NxStage, partially offset by higher personnel expense and the effect of a reduction in patient attribution and a decreasing savings rate for ESCOs based on recent reports for prior plan years ("ESCO effect").

The increase period over period in selling, general and administrative ("SG&A") expenses as a percentage of revenue was 1.5 percentage points. Foreign currency translation effects represented a 0.1 percentage point positive effect in the current period. The increase was primarily driven by increases in the North America Segment, the Asia Pacific Segment, the Latin America Segment as well as an unfavorable impact of varying margins across the four operating segments, partially offset by decreases in the EMEA Segment and at Corporate. The increase in the North America Segment was due to the integration and operational costs associated with NxStage, the negative impact from income attributable to a consent agreement on certain pharmaceuticals in 2018, the negative impact from the prior year gain from sale of fixed assets and higher personnel expense. The increase in the Asia-Pacific Segment was due to growth in lower margin businesses and unfavorable foreign currency transaction effects. The increase in the Latin America Segment was driven by an unfavorable impact from inflation and higher bad debt expense, partially offset by favorable impacts from foreign currency transaction effects and acquisitions, as well as a positive effect from the IFRS 16 Implementation. The decrease in the EMEA Segment was due to higher other income related to a favorable outcome in a legal proceeding, a positive impact from acquisitions and lower personnel expense, partially offset by the impact from lower revenue. The favorable impact at Corporate was mainly driven by lower project costs.

The gain related to divestitures of Care Coordination activities was €11 M in the three months ended June 30, 2019, as compared to €833 M in the comparable period of 2018 due to the divestiture of Sound in 2018.

Research and development expenses increased by 9% to €41 M from €38 M. Research and development expenses, as a percentage of revenue, remained stable at 0.9 percentage points.

Income from equity method investees increased by 36% to €22 M from €17 M. The increase was primarily driven by higher income from Vifor Fresenius Medical Care Renal Pharma Ltd., an entity in which we have ownership of 45%, mainly due to higher sales of renal pharmaceuticals.

The decrease period over period in the operating income margin was 21.3 percentage points. Foreign currency translation effects represented a 0.2 percentage point positive effect in the current period. The decrease in the current period was largely driven by the lower gain related to divestitures of Care Coordination activities, an increase in SG&A expenses and the decrease in the gross profit margin, as discussed above.

Delivered EBIT decreased by 66% including a 1% positive impact from foreign currency translation effects. At Constant Exchange Rates, Delivered EBIT decreased by 67% largely driven by decreased operating income.

Net interest expense increased by 35% to €114 M from €85 M, including a 5% negative impact from foreign currency translation effects. At Constant Exchange Rates, net interest expense increased by 30%, primarily due to the IFRS 16 Implementation and a higher debt level, partially offset by the replacement of high interest bearing senior notes repaid in 2018 by debt instruments at lower interest rates.

Income tax expense decreased by 65% to €92 M from €261 M. The effective tax rate increased to 22.7% from 19.8% for the same period of 2018 largely driven by the prior year impacts in 2018 from the gain related to the divestiture of Care Coordination activities.

Net income attributable to noncontrolling interests decreased by 1%, including a 5% negative impact resulting from foreign currency translation effects. At Constant Exchange Rates, net income attributable to noncontrolling interests decreased by 6% driven by lower earnings from Care Coordination in the United States.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 74% to €254 M from €994 M including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 76% due to the combined effects of the items discussed above.

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Basic earnings per share decreased by 74%, including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, basic earnings per share decreased by 76%. The average weighted number of shares outstanding for the period was approximately 303.5 M in 2019 (306.4 M in 2018).

We employed 119,631 people (full-time equivalents) as of June 30, 2019 compared to 111,263 as of June 30, 2018, an increase of 8%, primarily due to the NxStage acquisition.

Consolidated operating performance on an adjusted basis

Management believes that there are certain distinct transactions or events for which the operating results should be adjusted to enhance transparency and comparability. We believe the following results (adjusted to exclude these items) should be analyzed in connection with the results presented above. For the three months ended June 30, 2019 and 2018, we have identified the following transactions that, when excluded from the results disclosed above, may provide a reader with further useful information in assessing our performance:

IFRS 16 Implementation

an adjustment to remove the contribution of NxStage to conform to the 2018 presentation ("NxStage Operations")

the integration costs related to the acquisition of NxStage on February 21, 2019 ("NxStage Costs")

costs associated with the sustainable improvement of our cost base ("Cost Optimization Costs")

an adjustment to remove the contribution of Sound to conform to the 2019 presentation ("Sound")

the gain related to divestitures of Care Coordination activities (see note 2 (b) of the notes to the consolidated financial statements (unaudited) included in this report) ("(Gain) loss related to divestitures of Care Coordination activities")

The following table reconciles the key indicators for the consolidated financial statements in accordance with IFRS to the key indicators adjusted for the items described above as the adjustments allow for a better comparison of these key indicators to our Outlook presented in this report. While we believe these adjustments provide additional clarity to the discussion of our operating results, the following table should only be viewed as a supplement to our results disclosed in accordance with IFRS above.

Consolidated operating performance on an adjusted basis


in € M, except where otherwise specified

 

 
   
   
   
   
   
  (Gain) loss
related to
divestitures of
Care
Coordination
activities
   
  Change in %
as adjusted
 
 
  Results
2019
  IFRS 16
Implementation
  NxStage
operations
  NxStage
costs
  Cost
optimization
costs
  Results
2019
Adjusted
  Current
rate
  Constant
Currency (1)
 

Three months ended June 30

                                                       

Total revenue

    4,345     18     (79 )               4,284     8 %   5 %

Health Care Services

    3,455         (4 )               3,451     10 %   6 %

Health Care Products

    890     18     (75 )               833     0 %   0 %

Total operating income (EBIT)

    521     (30 )   4     4     3     (11 )   491     (12 )%   (17 )%

Operating income (EBIT) Margin

    12.0 %                                 11.5 %            

Interest expense, net

    114     (43 )   (21 )               50     (33 )%   (35 )%

Income tax expense

    92     3     6     1     1     (2 )   101     (11 )%   (16 )%

Net income attributable to noncontrolling interests

    61                         61     (1 )%   (7 )%

Net income (2)

    254     10     19     3     2     (9 )   279     (9 )%   (14 )%

Basic earnings per share

    0.84     0.03     0.06     0.01     0.01     (0.03 )   0.92     (9 )%   (14 )%

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Consolidated operating performance on an adjusted basis

 
  Results
2018
  Sound (3)   (Gain) loss
related to
divestitures
of Care
Coordination
activities
  Results
2018
Adjusted
 

Three months ended June 30

                         

Total revenue

    4,214     (258 )       3,956  

Health Care Services

    3,385     (258 )       3,127  

Health Care Products

    829             829  

Total operating income (EBIT)

    1,401     (10 )   (833 )   558  

Operating income (EBIT) Margin

    33.3 %               14.1 %

Interest expense, net

    85     (11 )       74  

Income tax expense

    261     1     (147 )   115  

Net income attributable to noncontrolling interests

    61     0         61  

Net income (2)

    994     0     (686 )   308  

Basic earnings per share

    3.24     0.01     (2.24 )   1.01  

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non-IFRS measures - Constant currency information" above.

(2)
Attributable to shareholders of FMC-AG & Co. KGaA.

(3)
Contribution of Sound Physicians.

The following discussions pertain to the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment and the measures we use to manage these segments.

North America Segment

Key indicators and business metrics for the North America Segment


in € M, except where otherwise specified

 

 
  For the three months
ended June 30
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Total North America Segment

                         

Revenue

    3,061     2,971     3 %   (3 )%

Health care services

    2,789     2,761     1 %   (5 )%

Health care products

    272     210     29 %   21 %

Operating income

    429     1,286     (67 )%   (68 )%

Operating income margin in %

    14.0 %   43.3 %            

Delivered EBIT (2)

    372     1,228     (70 )%   (71 )%

Dialysis

                         

Revenue

    2,783     2,442     14 %   7 %

Number of dialysis treatments

    7,991,032     7,660,624     4 %      

Same market treatment growth in %

    3.6 %   2.3 %            

Operating income

    428     417     3 %   (3 )%

Operating income margin in %

    15.4 %   17.1 %            

Delivered EBIT (2)

    373     365     2 %   (4 )%

Care Coordination

                         

Revenue

    278     529     (47 )%   (50 )%

Operating income

    1     869     (100 )%   (100 )%

Operating income margin in %

    0.3 %   164.1 %            

Delivered EBIT (2)

    (1 )   863     n.a     n.a  

Member months under medical cost management (3)(4)

    165,353     171,828     (4 )%      

Medical cost under management (3)(4)

    1,103     1,244     (11 )%   (16 )%

Care Coordination patient encounters (3)(4)

    277,880     1,956,331     (86 )%      

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

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(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

(3)
For further information on these metrics, please refer to the discussion above of our Care Coordination measures under "Business Metrics for Care Coordination."

(4)
The metrics may be understated due to a physician mapping issue related to the BPCI program within a CMS system which has not yet been resolved. Additionally, data presented for the BPCI and ESCO metrics are subject to finalization by CMS, which may result in changes from previously reported metrics.


Dialysis

Revenue

Dialysis revenue increased by 14% including a 7% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis revenue increased by 7%. Dialysis revenue is comprised of dialysis care revenue and health care product revenue.

Dialysis care revenue increased by 13% to €2,511 M from €2,232 M, including a 7% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis care revenue increased by 6% mainly due to increases in growth in same market treatments (4%), increases in organic revenue per treatment (1%), and contributions from acquisitions (1%).

Dialysis treatments increased by 4% largely due to growth in same market treatments (4%) and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (1%). At June 30, 2019, 208,019 patients (4% increase from June 30, 2018) were being treated in the 2,583 dialysis clinics that we own or operate in the North America Segment, compared to 199,527 patients treated in 2,439 dialysis clinics at June 30, 2018.

In the U.S., the average revenue per treatment increased to $358 (€300 at Constant Exchange Rates) from $354 (€296). The development was mainly attributable to higher utilization of oral based ancillaries and the impact from an increase in the ESRD PPS base rate, partially offset by lower revenue from commercial payors.

Cost per treatment in the U.S., adjusted for the effects from the IFRS 16 Implementation, increased to $297 (€249 at Constant Exchange Rates) from $289 (€242). This increase was largely driven by higher personnel expense as well as increased costs for occupancy and health care supplies.

Health care product revenue increased by 29% including an 8% positive impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 21% driven by higher sales of home hemodialysis products largely as a result of the NxStage acquisition, renal pharmaceuticals, and peritoneal dialysis products, partially offset by lower sales of machines as a result of changes in the accounting treatment for sale-leaseback transactions due to the IFRS 16 Implementation.

Operating income margin

The decrease period over period in the dialysis operating income margin was 1.7 percentage points with virtually no foreign currency translation effects in the current period. At Constant Exchange Rates, the decrease was due to higher personnel expense, the integration and operational costs associated with NxStage and the negative impact from income attributable to a consent agreement on certain pharmaceuticals in the prior year, partially offset by higher utilization of oral based ancillaries with favorable margins and a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Dialysis Delivered EBIT increased by 2%, including a 6% positive impact from foreign currency translation effects. At Constant Exchange Rates, dialysis Delivered EBIT decreased by 4% mainly as a result of decreased operating income (at Constant Exchange Rates).


Care Coordination

Revenue

Care Coordination revenue decreased by 47%, including a 3% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue decreased by 50% driven

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by decreases attributable to prior year revenue associated with the divested Sound activities (46%) and a decrease in organic revenue growth (7%), partially offset by contributions from acquisitions (3%).

Operating income margin

The decrease period over period in the Care Coordination operating income margin was 163.8 percentage points. Foreign currency translation effects represented a 0.1 percentage point decrease in the current period. The decrease at Constant Exchange Rates was mainly due to lower gains related to divestiture of Care Coordination activities, the ESCO effect and unfavorable margins for oral based ancillaries.

Delivered EBIT

Care Coordination Delivered EBIT decreased to a loss of €1 M for the three months ended June 30, 2019 as compared to €863 M in the comparative period of 2018 mainly as the result of decreased operating income.

Care Coordination business metrics

Member months under medical cost management decreased by 4% primarily due to the divestment of our controlling interest in Sound on June 28, 2018 and, as a result, the conclusion of our participation in BPCI, offset by the expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities. See note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report and note 4 to the table "Key indicators and business metrics for the North America Segment," above.

Care Coordination's medical cost under management decreased by 11%, including a 5% positive impact from foreign currency translation in the current period. At Constant Exchange Rates, Care Coordination's medical cost under management decreased by 16% due to the divestment of our controlling interest in Sound on June 28, 2018 (see note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report) and, as a result, the conclusion of our participation in BPCI. This decrease was partially offset by our expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities. See note 4 to the table "Key indicators and business metrics for the North America Segment" above.

The decrease in patient encounters was primarily driven by decreased encounters for hospital related physician services as a result of our divesting our controlling interest in Sound on June 28, 2018. See note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report and note 4 to the table "Key indicators and business metrics for the North America Segment" above.

North America Segment operating performance on an adjusted basis

Management believes that there are certain distinct transactions or events for which the operating results should be adjusted to enhance transparency and comparability. We believe the following results (adjusted to exclude these items) should be analyzed in connection with the results presented above. For the three months ended June 30, 2019 and 2018, we have identified the following transactions that, when excluded from the results disclosed above, may provide a reader with further useful information in assessing our performance:

IFRS 16 Implementation

NxStage Operations

NxStage Costs

Cost Optimization Costs

Sound

(Gain) loss related to divestitures of Care Coordination activities

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Table of Contents

The following table reconciles the key indicators for the North America Segment in accordance with IFRS to the key indicators adjusted for the items described above as the adjustments allow for a better comparison of these key indicators to our Outlook presented in this report. While we believe these adjustments provide additional clarity to the discussion of our operating results, the following table should only be viewed as a supplement to our results disclosed in accordance with IFRS above.

North America Segment operating performance on an adjusted basis


in € M, except where otherwise specified

 

 
   
   
   
   
   
  (Gain) loss
related to
divestitures
of Care
Coordination
activities
   
  Change in % as
adjusted
 
 
  Results
2019
  IFRS 16
Implementation
  NxStage
operations
  NxStage
costs
  Cost
optimization
costs
  Results
2019
Adjusted
  Current
rate
  Constant
Currency (1)
 

Three months ended June 30

                                                       

Revenue

    3,061     18     (79 )               3,000     11 %   4 %

Health Care Services

    2,789         (4 )               2,785     11 %   5 %

thereof Dialysis Care

    2,511         (4 )               2,507     12 %   6 %

thereof Care Coordination

    278                         278     2 %   (3 )%

Health Care Products

    272     18     (75 )               215     2 %   (4 )%

Operating income (EBIT)

    429     (27 )   6     4     3     (11 )   404     (9 )%   (14 )%

Operating income margin (EBIT)

    14.0 %                                 13.5 %            

Dialysis

    428     (25 )   6     4     3         416     0 %   (6 )%

Dialysis operating income margin (EBIT)

    15.4 %                                 15.3 %            

Care Coordination

    1     (2 )               (11 )   (12 )   n.a.     n.a.  

Care Coordination operating income margin (EBIT)

    0.3 %                                 (4.2 )%            

North America Segment operating performance on an adjusted basis

 
  Results
2018
  Sound (2)   (Gain) loss
related to
divestitures
of Care
Coordination
activities
  Results
2018
Adjusted
 

Three months ended June 30

                         

Revenue

    2,971     (258 )       2,713  

Health Care Services

    2,761     (258 )       2,503  

thereof Dialysis Care

    2,232             2,232  

thereof Care Coordination

    529     (258 )       271  

Health Care Products

    210             210  

Operating income (EBIT)

    1,286     (10 )   (833 )   443  

North America operating income margin (EBIT)

    43.3 %               16.3 %

Dialysis

    417             417  

Dialysis operating income margin (EBIT)

    17.1 %               17.1 %

Care Coordination

    869     (10 )   (833 )   26  

Care Coordination operating income margin (EBIT)

    164.1 %               9.7 %

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non-IFRS measures - Constant currency information" above.

(2)
Contribution of Sound Physicians.

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Table of Contents

EMEA Segment

Key indicators for the EMEA Segment

in € M, except where otherwise specified

 

 
  For the three months
ended June 30,
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    648     652     (1 )%   0 %

Health care services

    335     315     6 %   7 %

Health care products

    313     337     (7 )%   (7 )%

Number of dialysis treatments

    2,500,323     2,407,433     4 %      

Same market treatment growth in %

    3.2 %   3.1 %            

Operating income

    96     105     (8 )%   (8 )%

Operating income margin in %

    14.9 %   16.1 %            

Delivered EBIT (2)

    94     104     (8 )%   (8 )%

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

Revenue

Health care service revenue increased by 6%, including a 1% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 7% as a result of growth in same market treatments (3%), contributions from acquisitions (3%), and increases in organic revenue per treatment (2%), partially offset by the effect of closed or sold clinics (1%).

Dialysis treatments increased by 4% mainly due to growth in same market treatments (3%) and contributions from acquisitions (2%), partially offset by the effect of closed or sold clinics (1%). As of June 30, 2019, we had 65,871 patients (4% increase from June 30, 2018) being treated at the 783 dialysis clinics that we own, operate or manage in the EMEA Segment compared to 63,589 patients treated at 758 clinics at June 30, 2018.

Health care product revenue decreased by 7%, with virtually no effect from foreign currency translation. At Constant Exchange Rates, health care product revenue decreased by 7%. Dialysis product revenue decreased by 7% with virtually no impact resulting from foreign currency translation. At Constant Exchange Rates, the decrease of 7% in dialysis product revenue was due to lower sales of dialyzers, bloodlines, hemodialysis solutions and concentrates, and machines mainly in North Africa and the Middle East. Non-Dialysis product revenue decreased by 8% to €17 M from €18 M with virtually no impact from foreign currency translation effects.

Operating income margin

The decrease period over period in the operating income margin was 1.2 percentage points. Foreign currency translation effects represented a 0.1 percentage point increase in the operating income margin. At Constant Exchange Rates, operating income margin decreased due to the impact from lower product sales, an unfavorable impact from an inventory revaluation, higher personnel expense in certain countries and unfavorable foreign currency transaction effects, partially offset by a positive effect from the IFRS 16 Implementation, higher other income related to a favorable outcome in a legal proceeding and a favorable impact from acquisitions.

Delivered EBIT

Delivered EBIT decreased by 8%, with virtually no impact resulting from foreign currency translation. At Constant Exchange Rates, the Delivered EBIT decreased by 8% primarily due to decreased operating income.

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Table of Contents

Asia-Pacific Segment

Key indicators for the Asia-Pacific Segment

in € M, except where otherwise specified

 

 
  For the three months
ended June 30,
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Total Asia-Pacific Segment

                         

Revenue

    458     422     8 %   7 %

Health care services

    210     191     10 %   7 %

Health care products

    248     231     7 %   7 %

Operating income

    69     78     (11 )%   (12 )%

Operating income margin in %

    15.1 %   18.4 %            

Delivered EBIT (2)

    67     76     (11 )%   (12 )%

Dialysis

   
 
   
 
   
 
   
 
 

Revenue

    401     373     7 %   6 %

Number of dialysis treatments

    1,138,226     1,082,945     5 %      

Same market treatment growth in %

    7.2 %   7.1 %            

Operating income

    64     72     (10 )%   (12 )%

Operating income margin in %

    16.1 %   19.3 %            

Delivered EBIT (2)

    63     70     (10 )%   (12 )%

Care Coordination

   
 
   
 
   
 
   
 
 

Revenue

    57     49     16 %   15 %

Operating income

    5     6     (20 )%   (16 )%

Operating income margin in %

    8.1 %   11.8 %            

Delivered EBIT (2)

    4     6     (22 )%   (18 )%

Care Coordination patient encounters (3)

    248,260     234,514     6 %      

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

(3)
For further information on patient encounters, please refer to the discussion above of our Care Coordination measures under "Business metrics for Care Coordination."


Dialysis

Revenue

Dialysis revenue increased by 7% including a 1% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis revenue increased by 6%. Dialysis revenue is comprised of dialysis care revenue and health care product revenue.

Dialysis care revenue increased by 8% to €153 M from €142 M including a 4% positive impact resulting from foreign currency translation effects. At Constant Exchange Rates, dialysis care revenue increased by 4% as a result of growth in same market treatments (7%), and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (3%) and a decrease in organic revenue per treatment (1%).

Dialysis treatments increased by 5% mainly due to growth in same market treatments (7%), and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (3%). As of June 30, 2019, we had 31,845 patients (4% increase from June 30, 2018) being treated at the 399 dialysis clinics that we own, operate or manage in the Asia-Pacific Segment compared to 30,578 patients treated at 385 clinics at June 30, 2018.

Health care product revenue increased by 7% with virtually no impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 7% as a result of increased sales of dialyzers, products for acute care treatments, bloodlines, hemodialysis solutions and concentrates and machines.

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Table of Contents

Operating income margin

The decrease period over period in the operating income margin was 3.2 percentage points with virtually no effect from foreign currency translation. At Constant Exchange Rates, the operating income margin decreased due to an unfavorable impact from growth in lower margin businesses and unfavorable foreign currency transaction effects, partially offset by a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Delivered EBIT decreased by 10%, including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT decreased by 12% mainly due to decreased operating income.


Care Coordination

Revenue

Care Coordination revenue increased by 16%, including a 1% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue increased by 15% driven by contributions from acquisitions (8%) and organic revenue growth (7%).

Operating income margin

The decrease period over period in the Care Coordination operating income margin was 3.7 percentage points. Foreign currency translation effects represented a 0.5 percentage point decrease in the operating income margin. At Constant Exchange Rates, the operating income margin decrease was driven by higher start-up and operating costs, partially offset by a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Care Coordination Delivered EBIT decreased by 22%, including a 4% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination Delivered EBIT decreased by 18% mainly as the result of decreased operating income.

Care Coordination business metrics

The number of patient encounters increased due to increased encounters for comprehensive and specialized health check-ups as well as ambulant treatment services, inpatient and outpatient services, vascular access and other chronic treatment services.

Latin America Segment

Key indicators for the Latin America Segment

in € M, except where otherwise specified

 

 
  For the three months
ended June 30,
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    172     164     5 %   26 %

Health care services

    121     118     2 %   28 %

Health care products

    51     46     14 %   20 %

Number of dialysis treatments

    1,329,151     1,259,833     6 %      

Same market treatment growth in %

    2.2 %   1.1 %            

Operating income

    6     11     (47 )%   (81 )%

Operating income margin in %

    3.4 %   6.8 %            

Delivered EBIT (2)

    6     11     (47 )%   (81 )%

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

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Table of Contents

Revenue

Health care service revenue increased by 2%, including a 26% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 28% as a result of increases in organic revenue per treatment (23%), contributions from acquisitions (4%) and growth in same market treatments (2%), partially offset by the effect of closed or sold clinics (1%).

Dialysis treatments increased by 6% mainly due to contributions from acquisitions (4%) and growth in same market treatments (2%). As of June 30, 2019, we had 33,815 patients (a 7% increase from June 30, 2018) being treated at the 231 dialysis clinics that we own, operate or manage in the Latin America Segment compared to 31,494 patients treated at 233 clinics at June 30, 2018.

Health care product revenue increased by 14%, including a 6% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 20% as a result of increased sales of machines, peritoneal dialysis products, hemodialysis solutions and concentrates, products for acute care treatments and dialyzers.

Operating income margin

The decrease period over period in the operating income margin was 3.4 percentage points. Foreign currency translation effects represented a 2.4 percentage point increase in the operating income margin. At Constant Exchange Rates, the operating income margin decreased mainly due to the impact from hyperinflation in Argentina and higher bad debt expense, partially offset by a positive effect from the IFRS 16 Implementation and favorable foreign currency transaction effects.

Delivered EBIT

Delivered EBIT decreased by 47% including a 34% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT decreased by 81% mainly due to decreased operating income.

Six months ended June 30, 2019 compared to six months ended June 30, 2018

Consolidated financials

Key indicators for consolidated financial statements

in € M, except where otherwise specified

 

 
  For the six months ended
June 30
  Change in %  
 
  As
reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    8,478     8,189     4 %   (1 )%

Health care services

    6,773     6,594     3 %   (2 )%

Health care products

    1,705     1,595     7 %   5 %

Number of dialysis treatments

    25,520,263     24,564,999     4 %      

Same market treatment growth in %

    3.7 %   2.5 %            

Gross profit as a % of revenue

    30.6 %   30.6 %            

Selling, general and administrative costs as a % of revenue

    17.9 %   17.0 %            

Operating income

    1,058     1,898     (44 )%   (47 )%

Operating income margin in %

    12.5 %   23.2 %            

Delivered EBIT (2)

    940     1,786     (47 )%   (50 )%

Net income attributable to shareholders of FMC-AG & Co. KGaA

    525     1,273     (59 )%   (61 )%

Basic earnings per share

    1.72     4.15     (59 )%   (61 )%

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

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Health care services revenue increased by 3%, including a 5% positive impact from foreign currency translation. At Constant Exchange Rates, health care services revenue decreased by 2% largely due to decreases attributable to prior year revenue associated with the divested Sound activities as well as the effect of closed or sold clinics (9%), partially offset by growth in same market treatments (4%), increases in organic revenue per treatment (2%) and contributions from acquisitions (1%).

Dialysis treatments increased by 4% as a result of growth in same market treatments (4%) and contributions from acquisitions (2%), partially offset by the effect of closed or sold clinics (1%) and a decrease in dialysis days (1%).

Health care product revenue increased by 7% including a 2% positive impact from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 5%. Dialysis product revenue increased by 7%, including a 2% positive impact from foreign currency translation. At Constant Exchange Rates, dialysis product revenues increased by 5% driven by higher sales of home hemodialysis products (largely as a result of the acquisition of NxStage), peritoneal dialysis products, products for acute care treatments, hemodialysis solutions and concentrates, partially offset by lower sales of machines as a result of changes in the accounting treatment for sale-leaseback transactions due to the IFRS 16 Implementation. Non-dialysis product revenue decreased by 6% to €36 M from €38 M with virtually no foreign currency translation effects.

The gross profit margin remained stable period over period. Foreign currency translation effects represented a 0.1 percentage point increase in the current period. The decrease primarily reflects decreases in the EMEA Segment and the Latin America Segment, partially offset by an increase in the North America Segment. The decrease in the EMEA Segment was mainly driven by higher personnel expense in certain countries, an unfavorable impact from an inventory revaluation, foreign currency transaction effects, the impact from lower product sales, and other smaller cost increases, partially offset by a favorable effect from the IFRS 16 Implementation (see note 1 of the notes to the consolidated financial statements (unaudited) included in this report). The decrease in the Latin America Segment was due to the impact from hyperinflation, partially offset by a favorable effect from the IFRS 16 Implementation. The increase in the North America Segment was mainly attributable to the positive current year effect from the divestiture of Sound which operated at lower margins, a favorable effect from the IFRS 16 Implementation, higher utilization of oral based ancillaries with favorable margins, and a positive impact from manufacturing, partially offset by higher personnel expense and the ESCO effect.

The increase period over period in the selling, general and administrative ("SG&A") expenses as a percentage of revenue was 0.9 percentage points with virtually no foreign currency translation effects in the current period. The increase was primarily driven by increases in the North America Segment, Corporate, the Latin America Segment as well as an unfavorable impact of varying margins across the four operating segments, partially offset by a decrease in the EMEA Segment. The increase in the North America Segment was due to the integration and operational costs associated with NxStage, higher personnel expense, an unfavorable impact from legal settlements and the impact from the prior year gain from the sale of fixed assets, partially offset by the positive impact from income attributable to consent agreements on certain pharmaceuticals. The increase at Corporate was mainly driven by higher project costs. The increase in the Latin America Segment was largely due to an unfavorable impact from inflation and higher bad debt expense, partially offset by favorable foreign currency transaction effects and a positive impact from acquisitions. The decrease in the EMEA Segment was due to a reduction of a contingent consideration liability related to Xenios AG ("Xenios"), favorable foreign currency transaction effects, higher other income related to a favorable outcome in a legal proceeding and a positive impact from acquisitions, partially offset by higher bad debt expense.

The gain related to divestitures of Care Coordination activities decreased to €11 M from €820 M primarily due to the divestiture of Sound Inpatient Physicians Holdings, LLC in 2018.

Research and development expenses increased by 7% to €75 M from €70 M. The increase period over period, as a percentage of revenue, was 0.1 percentage points.

Income from equity method investees increased by 23% to €43 M from €34 M. The increase was primarily driven by higher income from Vifor Fresenius Medical Care Renal Pharma Ltd., an entity in which we have ownership of 45%, mainly due to higher sales of renal pharmaceuticals.

The decrease period over period in the operating income margin was 10.7 percentage points. Foreign currency translation effects represented a 0.1 percentage point increase in the current period. The decrease in the current period was largely driven by the lower gain related to divestitures of Care Coordination activities and an increase in SG&A expenses, as discussed above.

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Delivered EBIT decreased by 47% including a 3% positive impact from foreign currency translation. At Constant Exchange Rates, the decrease of 50% was largely driven by decreased operating income coupled with an increase in income attributable to noncontrolling interests.

Net interest expense increased by 33% to €222 M from €168 M including a 6% negative impact resulting from foreign currency translation. At Constant Exchange Rates, net interest expense increased by 27% primarily due the IFRS 16 Implementation and a higher debt level, partially offset by the replacement of high interest bearing senior notes repaid in 2018 by debt instruments at lower interest rates.

Income tax expense decreased by 44% to €193 M from €345 M. The effective tax rate increased to 23.1% from 20.0% for the same period of 2018 largely driven by the prior year impacts in 2018 from the gain related to the divestiture of Care Coordination activities as well as favorable implications of the US tax reform.

Net income attributable to noncontrolling interests increased by 5% to €118 M from €112 M. Foreign currency translation effects represented a 7% negative impact. At Constant Exchange Rates, net income attributable to noncontrolling interests decreased by 2% driven by lower performance in Care Coordination entities in which we have less than 100% ownership in the US.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 59% to €525 M from €1,273 M, including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, the decrease of 61% was driven by the combined effects of the items discussed above.

Basic earnings per share decreased by 59%. Foreign currency translation effects represented a 2% positive impact on the decrease. At Constant Exchange Rates, basic earnings per share decreased by 61% primarily due to the decrease in net income attributable to shareholders of FMC-AG & Co. KGaA described above. The average weighted number of shares outstanding for the period was approximately 305.0 M in 2019 (306.4 M in 2018).

Consolidated operating performance on an adjusted basis

Management believes that there are certain distinct transactions or events for which the operating results should be adjusted to enhance transparency and comparability. We believe the following results (adjusted to exclude these items) should be analyzed in connection with the results presented above. For the six months ended June 30, 2019 and 2018, we have identified the following transactions that, when excluded from the results disclosed above, may provide a reader with further useful information in assessing our performance:

IFRS 16 Implementation

NxStage Operations

NxStage Costs

Cost Optimization Costs

Sound

(Gain) loss related to divestitures of Care Coordination activities

The following table reconciles the key indicators for the consolidated financial statements in accordance with IFRS to the key indicators adjusted for the items described above as the adjustments allow for a better comparison of these key indicators to our Outlook presented in this report. While we believe these

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adjustments provide additional clarity to the discussion of our operating results, the following table should only be viewed as a supplement to our results disclosed in accordance with IFRS above.

Consolidated operating performance on an adjusted basis

in € M, except where otherwise specified


 
   
   
   
   
   
  (Gain) loss
related to
divestitures
of Care
Coordination
activities
   
  Change in %
as adjusted
 
 
  Results
2019
  IFRS 16
Implementation
  NxStage
operations
  NxStage
costs
  Cost
optimization
costs
  Results 2019
Adjusted
  Current
rate
  Constant
Currency (1)
 

Six months ended June 30

                                                       

Total revenue

    8,478     40     (109 )               8,409     9 %   5 %

Health Care Services

    6,773         (6 )               6,767     11 %   6 %

Health Care Products

    1,705     40     (103 )               1,642     3 %   2 %

Total operating income (EBIT)

    1,058     (48 )   16     20     7     (11 )   1,042     (2 )%   (7 )%

Operating income (EBIT) Margin

    12.5 %                                 12.4 %            

Interest expense, net

    222     (85 )   (29 )               108     (26 )%   (29 )%

Income tax expense

    193     9     12     5     2     (2 )   219     9 %   4 %

Net income attributable to noncontrolling interests

    118                         118     4 %   (2 )%

Net income (2)

    525     28     33     15     5     (9 )   597     (1 )%   (6 )%

Basic earnings per share

    1.72     0.09     0.11     0.05     0.02     (0.03 )   1.96     (1 )%   (5 )%

Consolidated operating performance on an adjusted basis

 
  Results
2018
  Sound (3)   (Gain) loss
related to
divestitures
of Care
Coordination
activities
  Results
2018
Adjusted
 

Six months ended June 30

                         

Total revenue

    8,189     (509 )       7,680  

Health Care Services

    6,594     (509 )       6,085  

Health Care Products

    1,595             1,595  

Total operating income (EBIT)

    1,898     (14 )   (820 )   1,064  

Operating income (EBIT) Margin

    23.2 %               13.9 %

Interest expense, net

    168     (21 )       147  

Income tax expense

    345     1     (146 )   200  

Net income attributable to noncontrolling interests

    112     1         113  

Net income (2)

    1,273     5     (674 )   604  

Basic earnings per share

    4.15     0.01     (2.19 )   1.97  

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non-IFRS measures - Constant currency information" above.

(2)
Attributable to shareholders of FMC-AG & Co. KGaA.

(3)
Contribution of Sound Physicians.

The following discussions pertain to the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment and the measures we use to manage these segments.

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North America Segment

Key indicators and business metrics for North America Segment

in € M, except where otherwise specified


 
  For the six months ended
June 30
  Change in %  
 
   
  Constant
Currency (1)
 
 
  2019   2018   As Reported  

Total North America Segment

                         

Revenue

    5,948     5,746     4 %   (3 )%

Health care services

    5,469     5,351     2 %   (5 )%

Health care products

    479     395     21 %   13 %

Operating income

    801     1,648     (51 )%   (54 )%

Operating income margin in %

    13.5 %   28.7 %            

Delivered EBIT (2)

    690     1,542     (55 )%   (58 )%

Dialysis

   
 
   
 
   
 
   
 
 

Revenue

    5,362     4,701     14 %   6 %

Number of dialysis treatments

    15,698,880     15,134,388     4 %      

Same market treatment growth in %

    3.6 %   2.3 %            

Operating income

    760     766     (1 )%   (6 )%

Operating income margin in %

    14.2 %   16.3 %            

Delivered EBIT (2)

    657     669     (2 )%   (7 )%

Care Coordination

   
 
   
 
   
 
   
 
 

Revenue

    586     1,045     (44 )%   (48 )%

Operating income

    41     882     (95 )%   (96 )%

Operating income margin in %

    6.9 %   84.5 %            

Delivered EBIT (2)

    33     873     (96 )%   (96 )%

Member Months Under Medical Cost Management (3)(4)

    336,256     337,625     (0 )%      

Medical Cost Under Management (3)(4)

    2,174     2,433     (11 )%   (17 )%

Care Coordination Patient Encounters (3)(4)

    550,233     3,914,025     (86 )%      

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

(3)
For further information on these metrics, please refer to the discussion above of our Care Coordination measures under "Business metrics for Care Coordination."

(4)
The metrics may be understated due to a physician mapping issue related to the BPCI program within a CMS system which has not yet been resolved. Additionally, data presented for the BPCI and ESCO metrics are subject to finalization by CMS, which may result in changes from previously reported metrics.


Dialysis

Revenue

Dialysis revenue increased by 14% including an 8% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis revenue increased by 6%. Dialysis revenue is comprised of dialysis care revenue and health care product revenue.

Dialysis care revenue increased by 13% to €4,883 M from €4,306 M. Foreign currency translation represented a 7% positive impact in the current period. At Constant Exchange Rates, dialysis care revenue increased by 6% mainly due to growth in same market treatments (4%) increases in organic revenue per treatment (2%), and contributions from acquisitions (1%), partially offset by a decrease in dialysis days (1%).

Dialysis treatments increased by 4% largely due to growth in same market treatments (4%) and contributions from acquisitions (1%), partially offset by a decrease in dialysis days (1%).

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In the U.S., the average revenue per treatment increased to $357 (€295 at Constant Exchange Rates) from $351 (€290). The development was mainly attributable to higher utilization of oral based ancillaries and the impact from an increase in the ESRD PPS base rate, partially offset by lower revenue from commercial payors.

Cost per treatment in the U.S., adjusted for the effects from the IFRS 16 Implementation, increased to $299 (€247 at Constant Exchange Rates) from $289 (€239). This increase was largely driven by higher personnel expense, increased utilization of oral based ancillaries and higher occupancy related costs.

Health care product revenue increased by 21%, including an 8% positive impact from foreign currency translation effects. At Constant Exchange Rates, health care product revenue increased by 13% driven by higher sales of home hemodialysis products, peritoneal dialysis products, and renal pharmaceuticals, partially offset by lower sales of machines as a result of changes in the accounting treatment for sale-leaseback transactions due to the IFRS 16 Implementation.

Operating income margin

The decrease period over period in the dialysis operating income margin was 2.1 percentage points. Foreign currency translation effects represented a 0.1 percentage point decrease in the current period. The decrease was due to higher personnel expense, the integration and operational costs associated with NxStage and an unfavorable impact from legal settlements, partially offset by the higher utilization of oral based ancillaries with favorable margins, a positive effect from the IFRS 16 Implementation, and a favorable impact from income attributable to a consent agreement on certain pharmaceuticals.

Delivered EBIT

Dialysis Delivered EBIT decreased by 2%, including a 5% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis Delivered EBIT decreased by 7% mainly as a result of decreased operating income coupled with an increase in income attributable to noncontrolling interests.


Care Coordination

Revenue

Care Coordination revenue decreased by 44% including a 4% positive impact from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue decreased by 48% largely driven by decreases attributable to prior year revenue associated with the divested Sound activities (50%), partially offset by contributions from acquisitions (2%).

Operating income margin

The decrease period over period in the Care Coordination operating income margin was 77.6 percentage points with virtually no foreign currency translation effects in the current period. The decrease was mainly due to lower gains related to divestiture of Care Coordination activities, the ESCO effect and unfavorable margins for oral based ancillaries, partially offset by a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Care Coordination Delivered EBIT decreased by 96% with virtually no impact from foreign currency translation. At Constant Exchange Rates, Care Coordination delivered EBIT decreased by 96% mainly as the result of decreased operating income.

Care Coordination business metrics

Member months under medical cost management remained relatively stable as the divestment of our controlling interest in Sound on June 28, 2018 and, as a result, the conclusion of our participation in BPCI was mostly offset by the expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities. See note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report and note 4 to the table "Key indicators and business metrics for the North America Segment," above.

Care Coordination's medical cost under management decreased by 11%, including a 6% positive impact from foreign currency translation in the current period. At Constant Exchange Rates, Care Coordination's medical cost under management decreased by 17% due to the divestment of our controlling interest in

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Sound on June 28, 2018 (see note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report) and, as a result, the conclusion of our participation in BPCI. This decrease was partially offset by our expansion of our existing ESCOs through the addition of new physician practice partners and dialysis facilities. See note 4 to the table "Key indicators and business metrics for the North America Segment" above.

The decrease in patient encounters was primarily driven by decreased encounters for hospital related physician services as a result of our divesting our controlling interest in Sound on June 28, 2018. See note 2 (b) of the notes to consolidated financial statements (unaudited) included in this report and note 4 to the table "Key indicators and business metrics for the North America Segment" above.

North America Segment operating performance on an adjusted basis

Management believes that there are certain distinct transactions or events for which the operating results should be adjusted to enhance transparency and comparability. We believe the following results (adjusted to exclude these items) should be analyzed in connection with the results presented above. For the six months ended June 30, 2019 and 2018, we have identified the following transactions that, when excluded from the results disclosed above, may provide a reader with further useful information in assessing our performance:

IFRS 16 Implementation

NxStage Operations

NxStage Costs

Cost Optimization Costs

Sound

(Gain) loss related to divestitures of Care Coordination activities

The following table reconciles the key indicators for the North America Segment in accordance with IFRS to the key indicators adjusted for the items described above as the adjustments allow for a better comparison of these key indicators to our Outlook presented in this report. While we believe these adjustments provide additional clarity to the discussion of our operating results, the following table should only be viewed as a supplement to our results disclosed in accordance with IFRS above.

North America Segment operating performance on an adjusted basis

in € M, except where otherwise specified


 
   
   
   
   
   
  (Gain) loss
related to
divestitures
of Care
Coordination
activities
   
  Change in %
as adjusted
 
 
  Results
2019
  IFRS 16
Implementation
  NxStage
operations
  NxStage
costs
  Cost
optimization
costs
  Results
2019
Adjusted
  Current
rate
  Constant
Currency (1)
 

Six months ended June 30

                                                       

Revenue

    5,948     40     (109 )               5,879     12 %   5 %

Health Care Services

    5,469         (6 )               5,463     13 %   5 %

thereof Dialysis Care

    4,883         (6 )               4,877     13 %   6 %

thereof Care Coordination

    586                         586     9 %   2 %

Health Care Products

    479     40     (103 )               416     5 %   (2 )%

Operating income (EBIT)

   
801
   
(39

)
 
17
   
20
   
7
   
(11

)
 
795
   
(2

)%
 
(8

)%

Operating income margin (EBIT)

    13.5 %                                 13.5 %            

Dialysis

    760     (36 )   17     20     7         768     0 %   (5 )%

Dialysis operating income margin (EBIT)

    14.2 %                                 14.5 %            

Care Coordination

    41     (3 )               (11 )   27     (45 )%   (49 )%

Care Coordination operating income margin (EBIT)

    6.9 %                                 4.5 %            

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North America Segment operating performance on an adjusted basis

 
  Results
2018
  Sound (2)   (Gain) loss related
to divestitures of
Care Coordination
activities
  Results
2018
Adjusted
 

Six months ended June 30

                         

Revenue

    5,746     (509 )       5,237  

Health Care Services

    5,351     (509 )       4,842  

thereof Dialysis Care

    4,306             4,306  

thereof Care Coordination

    1,045     (509 )       536  

Health Care Products

    395             395  

Operating income (EBIT)

   
1,648
   
(14

)
 
(820

)
 
814
 

North America operating income margin (EBIT)

    28.7 %               15.6 %

Dialysis

    766             766  

Dialysis operating income margin (EBIT)

    16.3 %               16.3 %

Care Coordination

    882     (14 )   (820 )   48  

Care Coordination operating income margin (EBIT)

    84.5 %               9.0 %

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non-IFRS measures - Constant currency information" above.

(2)
Contribution of Sound Physicians.

EMEA Segment

Key indicators for EMEA Segment

in € M, except where otherwise specified

 

 
  For the six months
ended June 30
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    1,301     1,288     1 %   2 %

Health care services

    659     629     5 %   6 %

Health care products

    642     659     (3 )%   (2 )%

Number of dialysis treatments

    4,976,025     4,794,593     4 %      

Same market treatment growth in %

    3.6 %   2.8 %            

Operating income

    235     214     9 %   10 %

Operating income margin in %

    18.0 %   16.6 %            

Delivered EBIT (2)

    232     212     9 %   10 %

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

Revenue

Health care service revenue increased by 5%, including a 1% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 6% as a result of growth in same market treatments (4%), contributions from acquisitions (3%), and increases in organic revenue per treatment (1%), partially offset by a decrease in dialysis days (1%), and the effect of closed or sold clinics (1%).

Dialysis treatments increased by 4% mainly due to growth in same market treatments (4%) and contributions from acquisitions (2%), partially offset by the effect of closed or sold clinics (1%) and a decrease in dialysis days (1%).

Health care product revenue decreased by 3%, including a 1% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue decreased by 2%. Dialysis product revenue decreased by 2%, with virtually no impact resulting from foreign currency translation. At Constant Exchange Rates, the decrease of 2% in dialysis product revenue was due to lower sales of

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dialyzers, partially offset by higher sales of machines. Non-Dialysis product revenue decreased by 6% to €36 M from €38 M including a 1% negative impact from foreign currency translation effects. At Constant Exchange Rates, Non-Dialysis product revenue decreased by 5%.

Operating income margin

The increase period over period in the operating income margin was 1.4 percentage points. Foreign currency translation effects represented a 0.1 percentage point increase in the operating income margin. The increase at Constant Exchange Rates was mainly due to a reduction of a contingent consideration liability related to Xenios, higher other income related to a favorable outcome in a legal proceeding, a positive impact from acquisitions, and a positive effect from the IFRS 16 Implementation, partially offset by higher personnel expense in certain countries, the impact from lower product sales, an unfavorable impact from an inventory revaluation and higher bad debt expense.

Delivered EBIT

Delivered EBIT increased by 9%, including a 1% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT increased by 10% primarily due to increased operating income.

Asia-Pacific Segment

Key indicators for Asia-Pacific Segment

in € M, except where otherwise specified

 

 
  For the six months
ended June 30
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Total Asia-Pacific Segment

                         

Revenue

    886     814     9 %   6 %

Health care services

    409     375     9 %   5 %

Health care products

    477     439     9 %   7 %

Operating income

    164     152     8 %   6 %

Operating income margin in %

    18.5 %   18.7 %            

Delivered EBIT (2)

    160     148     8 %   6 %

Dialysis

   
 
   
 
   
 
   
 
 

Revenue

    777     720     8 %   6 %

Number of dialysis treatments

    2,237,630     2,143,059     4 %      

Same market treatment growth in %

    7.2 %   5.0 %            

Operating income

    154     140     10 %   7 %

Operating income margin in %

    19.8 %   19.5 %            

Delivered EBIT (2)

    150     137     10 %   8 %

Care Coordination

   
 
   
 
   
 
   
 
 

Revenue

    109     94     15 %   14 %

Operating income

    10     12     (13 )%   (10 )%

Operating income margin in %

    9.6 %   12.7 %            

Delivered EBIT (2)

    10     11     (12 )%   (10 )%

Care Coordination Patient Encounters (3)

    464,580     434,652     7 %      

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

(3)
For further information on patient encounters, please refer to the discussion above of our Care Coordination measures under "Business Metrics for Care Coordination."

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Dialysis

Revenue

Dialysis revenue increased by 8% including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis revenue increased by 6%. Dialysis revenue is comprised of dialysis care revenue and health care product revenue.

Dialysis care service revenue increased by 7% to €300 M from €281 M, including a 4% positive impact resulting from foreign currency translation. At Constant Exchange Rates, dialysis care service revenue increased by 3% as a result of growth in same market treatments (7%), and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (3%) and a decrease in organic revenue per treatment (2%).

Dialysis treatments increased by 4% mainly due to growth in same market treatments (7%), and contributions from acquisitions (1%), partially offset by the effect of closed or sold clinics (3%) and a decrease in dialysis days (1%).

Health care product revenue increased by 9% including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 7% as a result of increased sales of dialyzers, products for acute care treatments, bloodlines, machines and hemodialysis solutions and concentrates.

Operating income margin

The increase period over period in the operating income margin was 0.3 percentage points with virtually no foreign currency translation effects. At Constant Exchange Rates, the operating income margin increased primarily due to favorable foreign currency transaction effects.

Delivered EBIT

Delivered EBIT increased by 10%, including a 2% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT increased by 8% mainly due to increased operating income.


Care Coordination

Revenue

Care Coordination revenue increased by 15%, including a 1% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination revenue increased by 14% driven by contributions from acquisitions (8%) and organic revenue growth (6%).

Operating income margin

The decrease period over period in the Care Coordination operating income margin was 3.1 percentage points. Foreign currency translation effects represented a 0.4 percentage point decrease in the operating income margin. The decrease was driven by higher start-up and operating costs as well as an unfavorable mix effect from acquisitions with lower margins, partially offset by a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Care Coordination Delivered EBIT decreased by 12%, including a 2% negative impact resulting from foreign currency translation. At Constant Exchange Rates, Care Coordination Delivered EBIT decreased by 10% mainly as the result of decreased operating income.

Care Coordination business metrics

The number of patient encounters increased due to increased encounters for comprehensive and specialized health check-ups as well as ambulant treatment services, inpatient and outpatient services, vascular access and other chronic treatment services.

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Latin America Segment

Key indicators for Latin America Segment

in € M, except where otherwise specified

 

 
  For the six months
ended June 30
  Change in %  
 
  As
Reported
  Constant
Currency (1)
 
 
  2019   2018  

Revenue

    334     334     (0 )%   20 %

Health care services

    236     239     (2 )%   24 %

Health care products

    98     95     4 %   10 %

Number of dialysis treatments

    2,607,728     2,492,959     5 %      

Same market treatment growth in %

    1.5 %   1.1 %            

Operating income

    17     25     (32 )%   (49 )%

Operating income margin in %

    5.2 %   7.6 %            

Delivered EBIT (2)

    17     25     (33 )%   (50 )%

(1)
For further information on Constant Exchange Rates, see "II. Discussion of measures - Non - IFRS measures - Constant currency information" above.

(2)
For further information on Delivered EBIT, including a reconciliation of Delivered EBIT to operating income on a consolidated basis and for each of our operating segments, see "II. Discussion of measures - Non - IFRS measures - Delivered EBIT" above.

Revenue

Health care service revenue decreased by 2%, including a 26% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care service revenue increased by 24% as a result of increases in organic revenue per treatment (19%), contributions from acquisitions (5%) and growth in same market treatments (2%), partially offset by the effect of closed or sold clinics (1%), and a decrease in dialysis days (1%).

Dialysis treatments increased by 5% mainly due to contributions from acquisitions (5%) and growth in same market treatments (2%), partially offset by the effect of closed or sold clinics (1%) and a decrease in dialysis days (1%).

Health care product revenue increased by 4%, including a 6% negative impact resulting from foreign currency translation. At Constant Exchange Rates, health care product revenue increased by 10% was due to higher sales of machines, hemodialysis solutions and concentrates as well as peritoneal dialysis products, partially offset by lower sales of dialyzers.

Operating income margin

The decrease period over period in the operating income margin was 2.4 percentage points, including a positive foreign currency translation effect of 2.0 percentage points in the current period. The decrease at Constant Exchange Rates was mainly due to the impact from hyperinflation in Argentina and an increase in bad debt, partially offset by favorable foreign currency transaction effects and a positive effect from the IFRS 16 Implementation.

Delivered EBIT

Delivered EBIT decreased by 33%, including a 17% positive impact resulting from foreign currency translation. At Constant Exchange Rates, Delivered EBIT decreased by 50% due to decreased operating income at Constant Currency.

Financial position

Sources of liquidity

Our primary sources of liquidity are typically cash provided by operating activities, cash provided by short-term debt from third parties and related parties, as well as proceeds from the issuance of long-term debt (including the issuance of bonds under our debt issuance program or other bonds) as well as divestitures. We require this capital primarily to finance working capital needs, fund acquisitions and clinic operations, develop free-standing renal dialysis clinics and other health care facilities, purchase equipment for existing or new renal dialysis clinics and production sites, repay debt, pay dividends and repurchase shares, (see "Net cash provided by (used in) investing activities" and "Net cash provided by (used in) financing activities" below).

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In our long-term financial planning, we focus primarily on the net leverage ratio, a Non-IFRS measure, see "II. Discussion of measures—Non—IFRS measures—Net leverage ratio (Non-IFRS Measure)" above. At June 30, 2019 and December 31, 2018, the net leverage ratio was 3.3 and 1.8, respectively. Adjusted for IFRS 16, the net leverage ratio was 2.6 at June 30, 2019.

At June 30, 2019, we had cash and cash equivalents of €922 M compared to €2,146 M at December 31, 2018.

Free cash flow (net cash provided by (used in) operating activities, after capital expenditures, before acquisitions and investments) amounted to €435 M and €165 M for the six months ended June 30, 2019 and June 30, 2018, respectively. Free cash flow is a Non-IFRS measure reconciled to net cash provided by (used in) operating activities, the most directly comparable IFRS measure, see "II. Discussion of measures—Non—IFRS measures—Cash flow measures" above. Free cash flow in percent of revenue was 5.1% and 2.0% for the six months ended June 30, 2019 and 2018, respectively.

Net cash provided by (used in) operating activities

In the first six months of 2019, net cash provided by operating activities was €928 M as compared to net cash provided by operating activities of €611 M in the first six months of 2018. Net cash provided by (used in) operating activities in percent of revenue increased to 11% for the first six months of 2019 as compared to 7% for 2018. Cash provided by (used in) operating activities is impacted by the profitability of our business, the development of our working capital, principally inventories, receivables and cash outflows that occur due to a number of specific items as discussed below. The increase in net cash provided by operating activities was largely driven by the IFRS 16 Implementation leading to a reclassification of the repayment portion of rent to financing activities.

The profitability of our business depends significantly on reimbursement rates for our services. Approximately 80% of our revenue is generated by providing health care services, a major portion of which is reimbursed by either public health care organizations or private insurers. For the six months ended June 30, 2019, approximately 33% of our consolidated revenue was attributable to reimbursements from U.S. federal health care benefit programs, such as Medicare and Medicaid. Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide as well as the scope of Medicare coverage. A decrease in reimbursement rates or the scope of coverage could have a material adverse effect on our business, financial condition and results of operations and thus on our capacity to generate cash flow. See "I. Overview," above.

We intend to continue to address our current cash and financing requirements using cash provided by operating activities, our existing and future credit agreements, issuances under our commercial paper program (see note 8 of the notes to the consolidated financial statements (unaudited) included in this report) as well as utilization of our Accounts Receivable Facility. In addition, when funds are required for acquisitions or to meet other needs, we expect to successfully complete long-term financing arrangements, such as the issuance of bonds. We aim to preserve financial resources with a minimum of €500 M of committed and unutilized credit facilities.

Net cash provided by (used in) operating activities depends on the collection of accounts receivable. Commercial customers and governments generally have different payment cycles. Lengthening their payment cycles could have a material adverse effect on our capacity to generate cash flow. In addition, we could face difficulties in enforcing and collecting accounts receivable under some countries' legal systems and due to the economic conditions in some countries. Accounts receivable balances, net of valuation allowances, represented Days Sales Outstanding ("DSO") of 77 days at June 30, 2019, an increase as compared to 75 days at December 31, 2018.

DSO by segment is calculated by dividing the segment's accounts and other receivable and contract liabilities, converted to euro using the average exchange rate for the period presented, less any sales or value added tax included in the receivables, by the average daily sales for the last twelve months of that segment, converted to euro using the average exchange rate for the period. Receivables and sales are adjusted for amounts related to acquisitions and divestitures made within the reporting period with a

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purchase price above a €50 M threshold as defined in the Amended 2012 Credit Agreement. The development of DSO by reporting segment is shown in the table below:

DSO by reporting segment

 
  June 30,
2019
  December 31,
2018
 

North America Segment

    63     60  

EMEA Segment

    101     98  

Asia-Pacific Segment

    122     116  

Latin America Segment

    116     119  

FMC-AG & Co. KGaA average days sales outstanding

    77     75  

The DSO increase in the North America Segment was largely due to disputed receivables. The DSO increase in the EMEA Segment primarily reflects periodic fluctuations in payment of public health care organizations in certain countries. The Asia-Pacific Segment's DSO increase primarily reflects delays in payment collections in China. The decrease in the Latin America Segment reflects accelerated payments from health care organizations and reimbursement sources.

Due to the fact that a large portion of our reimbursement is provided by public health care organizations and private insurers, we expect that most of our accounts receivable will be collectible.

Net cash provided by (used in) investing activities

In the first six months of 2019, net cash used in investing activities was €2,392 M as compared to net cash provided by investing activities of €871 M in the comparable period of 2018. The following table shows our capital expenditures for property, plant and equipment, net of proceeds from sales of property, plant and equipment as well as acquisitions, investments and purchases of intangible assets for first six months of 2019 and 2018:

Capital expenditures (net), acquisitions, investments and purchases of intangible assets

in € M

 

 
  Capital
expenditures,
net
  Acquisitions,
investments
and purchases
of intangible
assets
 
 
  For the six months
ended June 30
 
 
  2019   2018   2019   2018  

North America Segment

    262     259     1,861     303  

Thereof investments in debt securities

            9     148  

EMEA Segment

    56     62     21     23  

Asia-Pacific Segment

    26     20     4     3  

Latin America Segment

    10     9     28     9  

Corporate

    139     96     9     8  

Total

    493     446     1,923     346  

The majority of our capital expenditures in the first six months of 2019 was used for maintaining existing clinics, equipping new clinics, maintaining and expanding production facilities (primarily in the North America Segment, Germany and France), capitalization of machines provided to our customers and for Care Coordination as well as capitalization of certain development costs. Capital expenditures increased to approximately 6% of total revenue in the first six months of 2019 as compared to 5% of total revenue during the same period in 2018.

Acquisitions in the first six months of 2019 were primarily driven by the acquisition of NxStage on February 21, 2019 as well as dialysis clinics.

Investments in the first six months of 2019 were primarily comprised of debt securities. In the first six months of 2019, we received €23 M from divestitures. These divestitures were mainly related to the divestment of a California based cardiovascular business, sales of debt securities as well as B.Braun Medical Inc.'s purchase of our bloodlines business in connection with our acquisition of NxStage.

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Investments in the first six months of 2018 were primarily comprised of purchases of debt securities and an equity investment in Humacyte, a medical research, discovery and development company, to acquire a 19% fully diluted ownership stake as well as related exclusive global distribution rights to Humacyte's bioengineered human acellular vessels within the North America Segment. The remaining investments in the North America Segment, the EMEA Segment and the Latin America Segment were largely comprised of acquisitions of dialysis clinics. In the first six months of 2018, we received €1,662 M from divestitures mainly related to the divestment of Sound on June 28, 2018.

We anticipate capital expenditures of €1.0 to €1.2 billion and expect to make acquisitions and investments, excluding investments in securities, of approximately €400 to €600 M in 2019 as described in the "Outlook" below.

Net cash provided by (used in) financing activities

In the first six months of 2019 and 2018, net cash provided by financing activities was €223 M as compared to net cash used in financing activities of €785 M, respectively.

In the first six months of 2019, cash was mainly provided by proceeds from long-term debt (including additional drawings under euro revolving credit facility of the Amended 2012 Credit Agreement and the issuance of bonds with a volume of $500 M) and short-term debt as well as the utilization of the accounts receivable facility, partially offset by the payment of dividends, repayment of lease liabilities, shares repurchased as part of a share buy-back program, repayments of long-term and short-term debt as well as repayments of short-term debt from related parties.

In the first six months of 2018, cash was mainly used in the payment of dividends, a reduction in the accounts receivable facility, repayments of long-term debt and capital lease obligations and short-term debt as well as distributions to noncontrolling interests, partially offset by proceeds from short-term debt (including drawings under the Commercial Paper Program) as well as long-term debt and capital lease obligations.

On May 21, 2019, we paid a dividend with respect to 2018 of €1.17 per share (for 2017 paid in 2018 €1.06 per share). The total dividend payment was €355 M as compared to €325 M in the prior year.

Balance sheet structure

Total assets as of June 30, 2019 increased by 22% to €32.0 billion from €26.2 billion as compared to December 31, 2018, including a 1% positive impact resulting from foreign currency translation, largely due to the implementation of the IFRS 16 in 2019. At Constant Exchange Rates, total assets increased by 21% to €31.8 billion from €26.2 billion.

Current assets as a percent of total assets decreased to 22% at June 30, 2019 as compared to 30% at December 31, 2018. The equity ratio, the ratio of our equity divided by total liabilities and shareholders' equity, decreased to 40% at June 30, 2019 as compared to 49% at December 31, 2018. ROIC decreased to 6.8% at June 30, 2019, adjusted for the implementation of IFRS 16, as compared to 12.4% at December 31, 2018.

Report on post-balance sheet date events

No significant activities have taken place subsequent to the balance sheet date June 30, 2019 that have a material impact on the key figures and earnings presented. Currently, there are no other significant changes in our structure, management, legal form or personnel.

Outlook

Below is a table showing our growth outlook for 2019 and 2020 which are determined by reference to target results determined in accordance with IFRS and presented in euro. The targets indicated for 2019 and 2020 are calculated and presented at Constant Exchange Rates with reliance on Item 10(e)(1)(i)(B) of SEC Regulation S-K as it is impossible to predict currency exchange movements over the course of an entire year. These targets as well as the 2018 base are and will be adjusted in order to make the business performance in the respective periods comparable for items such as: lower additions to provisions related to FCPA in 2018 ("FCPA Related Charges"), the IFRS 16 Implementation, the contributions from Sound in the first half year of 2018, the (gain) loss related to divestitures of Care Coordination activities and

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expenses for the cost optimization program. All effects from the acquisition of NxStage Medical Inc. are excluded from the Outlook 2019 and 2020.

Outlook

In € billions ("BN"), except where otherwise noted


 
  Outlook 2019
(at Constant Currency) (1)
  Outlook 2020
(at Constant Currency) (1)

Revenue (2)

  Growth 3 - 7%   mid to high single digit growth rate

Operating income (2)

  Growth (1) - 3%   mid to high single digit growth rate

Delivered EBIT (2)

  Growth (1) - 3%   mid to high single digit growth rate

Net income growth at Constant Currency (2) (3)

  Growth (2) - 2%   mid to high single digit growth rate

Basic earnings per share growth at Constant Currency (2) (3)

  assessed based on expected development of net income and shares outstanding   assessed based on expected development of net income and shares outstanding

Capital expenditures

  €1.0 - €1.2 BN   n.a.

Acquisitions and investments (4)

  €0.4 - €0.6 BN   n.a.

Net cash provided by (used in) operating activities in % of revenue

  > 10%   n.a.

Free cash flow in % of revenue

  > 4%   n.a.

Net leverage ratio

  < 2.5   n.a.

ROIC

  ³ 8.0%   n.a.

Dividend per share

  assessed based on expected development of net income and shares outstanding   n.a.

Employees (5)

  > 117,000   n.a.

Research and development expenses

  €160 - €170 M   n.a.

(1)
Outlook 2019 and 2020 are and will be adjusted in order to make the business performance comparable to results 2018 adjusted for items such as: FCPA Related Charges, the IFRS 16 Implementation, the gain (loss) related to divestitures of Care Coordination activities and expenses for the cost optimization program. All effects from the acquisition of NxStage Medical Inc. are excluded from the Outlook 2019 and 2020.

(2)
Results 2018 adjusted for the (gain) loss related to divestitures of Care Coordination activities, the 2018 FCPA Related Charge and the contributions from Sound in the first half year of 2018.

(3)
Net income attributable to shareholders of FMC-AG & Co. KGaA.

(4)
Excluding investments in securities.

(5)
Full-time equivalents.

NxStage Estimate

Below is a table showing the estimated effects of the NxStage acquisition on our business in 2019 and 2020, excluding integration costs of approximately €50 M to €75 M over the three years following the closing of the transaction. These effects are determined in accordance with IFRS and presented in euro. The estimates indicated for 2019 and 2020 are calculated and presented at Constant Exchange Rates with reliance on Item 10(e)(1)(i)(B) of SEC Regulation S-K as it is impossible to predict currency exchange movements over the course of an entire year.

NxStage Estimate (1)

In € M


 
  Estimate 2019
(at Constant Currency)
  Estimate 2020
(at Constant Currency)

Revenue

  240 - 260   310 - 330

Operating income

  (30) - (20)   20 - 30

Interest

  (75) - (65)   (85) - (75)

Net income

  (75) - (65)   (40) - (30)

(1)
The numbers are excluding effects from the implementation of IFRS 16 and excluding integration costs. The 2019 estimates cover the period starting on February 21, 2019 (closing date) until year-end 2019.

Recently issued accounting standards

Refer to note 1 of the notes to the consolidated financial statements (unaudited) in this report for information regarding recently issued accounting standards.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Financial statements

Consolidated statements of income

(unaudited)

 
   
  For the three
months ended June 30,
  For the six
months ended June 30,
 
in € thousands ("THOUS"), except per share data
  Note   2019   2018   2019   2018  

Revenue:

                             

Health care services

        3,455,197     3,384,807     6,772,505     6,593,602  

Health care products

        889,835     828,898     1,705,084     1,595,732  

  2 a, 14     4,345,032     4,213,705     8,477,589     8,189,334  

Costs of revenue:

                             

Health care services

        2,605,732     2,530,570     5,111,155     4,964,894  

Health care products

        408,378     378,891     770,224     717,447  

        3,014,110     2,909,461     5,881,379     5,682,341  

Gross profit

       
1,330,922
   
1,304,244
   
2,596,210
   
2,506,993
 

Operating (income) expenses:

                             

Selling, general and administrative

        802,526     715,177     1,517,683     1,393,954  

(Gain) loss related to divestitures of Care Coordination activities

  2 b     (11,400 )   (833,157 )   (11,400 )   (820,054 )

Research and development

  2 c     41,020     37,648     74,634     69,545  

Income from equity method investees

        (22,481 )   (16,523 )   (42,514 )   (34,427 )

Operating income

        521,257     1,401,099     1,057,807     1,897,975  

Other (income) expense:

 

 

   
 
   
 
   
 
   
 
 

Interest income

  2 d     2,046     2,730     (25,898 )   (22,106 )

Interest expense

        112,309     81,978     248,101     189,747  

Income before income taxes

        406,902     1,316,391     835,604     1,730,334  

Income tax expense

        92,265     261,232     193,209     345,466  

Net income

        314,637     1,055,159     642,395     1,384,868  

Net income attributable to noncontrolling interests

        60,857     61,178     117,866     112,332  

Net income attributable to shareholders of FMC-AG & Co. KGaA

        253,780     993,981     524,529     1,272,536  

Basic earnings per share

  2 e     0.84     3.24     1.72     4.15  

Fully diluted earnings per share

  2 e     0.84     3.23     1.72     4.14  

   

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of comprehensive income

(unaudited)

 
   
  For the three months ended June 30,   For the six months ended June 30,  
in € THOUS
  Note   2019   2018   2019   2018  

Net income

        314,637     1,055,159     642,395     1,384,868  

Other comprehensive income (loss):

                             

Components that may be reclassified subsequently to profit or loss:

                             

Gain (loss) related to foreign currency translation

        (139,818 )   394,286     129,923     129,245  

Gain (loss) related to cash flow hedges (1)

  13     (12,191 )   5,186     (13,487 )   13,020  

Income tax (expense) benefit related to components of other comprehensive income that may be reclassified

        2,743     (1,496 )   3,169     (3,714 )

Other comprehensive income (loss), net of tax

        (149,266 )   397,976     119,605     138,551  

Total comprehensive income

        165,371     1,453,135     762,000     1,523,419  

Comprehensive income attributable to noncontrolling interests

        45,552     112,958     123,556     138,734  

Comprehensive income attributable to shareholders of FMC-AG & Co. KGaA

        119,819     1,340,177     638,444     1,384,685  

(1)
Including cost of hedging in the amount of €130 and €(762) respective €78 and €(552) for the three and six months ended June 30, 2019 and 2018.

   

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated balance sheets

(unaudited)

in € THOUS, except share data
  Note   June 30,
2019
  December 31,
2018
 

Assets

                 

Cash and cash equivalents

  5     922,102     2,145,632  

Trade accounts and other receivables

  6     3,580,280     3,337,706  

Accounts receivable from related parties

  4     74,435     92,662  

Inventories

  7     1,687,492     1,466,803  

Other current assets

        902,768     804,083  

Total current assets

        7,167,077     7,846,886  

Property, plant and equipment

       
3,974,608
   
3,836,010
 

Right-of-use assets

  1     4,226,653      

Intangible assets

        1,443,819     681,331  

Goodwill

        13,498,623     12,209,606  

Deferred taxes

        328,570     345,686  

Investment in equity method investees

  14     654,122     649,780  

Other non-current assets

        662,529     672,969  

Total non-current assets

        24,788,924     18,395,382  

Total assets

        31,956,001     26,242,268  

Liabilities

                 

Accounts payable

        680,235     641,271  

Accounts payable to related parties

  4     155,999     153,781  

Current provisions and other current liabilities

        2,748,375     2,904,288  

Short-term debt

  8     1,358,131     1,205,294  

Short-term debt from related parties

  8     76,700     188,900  

Current portion of long-term debt

  9     1,508,584     1,106,519  

Current portion of long-term lease liabilities

  1     603,027      

Current portion of long-term lease liabilities from related parties

  1     16,483      

Income tax payable

        73,861     68,229  

Total current liabilities

        7,221,395     6,268,282  

Long-term debt, less current portion

 

9

   
5,922,838
   
5,045,515
 

Long-term lease liabilities, less current portion

  1     3,810,180      

Long-term lease liabilities from related parties, less current portion

  1     113,620      

Non-current provisions and other non-current liabilities

        717,870     750,738  

Pension liabilities

        572,163     551,930  

Income tax payable

        97,288     97,324  

Deferred taxes

        700,196     626,521  

Total non-current liabilities

        11,934,155     7,072,028  

Total liabilities

        19,155,550     13,340,310  

Shareholders' equity:

                 

Ordinary shares, no par value, €1.00 nominal value, 374,165,226 shares authorized, 304,336,298 issued and 302,831,675 outstanding as of June 30, 2019 and 384,822,972 shares authorized, 307,878,652 issued and 306,878,701 outstanding as of December 31, 2018

        304,336     307,879  

Treasury stock, at cost

        (84,863 )   (50,993 )

Additional paid-in capital

        3,614,814     3,873,345  

Retained earnings

        8,863,601     8,831,930  

Accumulated other comprehensive income (loss)

        (1,089,835 )   (1,203,750 )

Total FMC-AG & Co. KGaA shareholders' equity

        11,608,053     11,758,411  

Noncontrolling interests

        1,192,398     1,143,547  

Total equity

        12,800,451     12,901,958  

Total liabilities and equity

        31,956,001     26,242,268  

   

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of cash flows

(unaudited)

 
   
  For the six months
ended June 30,
 
in € THOUS
  Note   2019   2018  

Operating activities

                 

Net income

        642,395     1,384,868  

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

   
 
   
 
 

Depreciation and amortization

  14     749,377     355,236  

Change in deferred taxes, net

        23,937     2,856  

(Gain) loss on sale of fixed assets, right-of-use assets, investments and divestitures

        (21,268 )   (822,122 )

Compensation expense related to share-based plans

        2,640     7,883  

Cash inflow (outflow) from hedging

        (12,628 )    

Investments in equity method investees, net

        (284 )   6,857  

Interest expense, net

        222,203     167,641  

Changes in assets and liabilities, net of amounts from businesses acquired:

                 

Trade accounts and other receivables

        (193,930 )   (403,354 )

Inventories

        (154,967 )   (92,001 )

Other current and non-current assets

        (32,095 )   (14,162 )

Accounts receivable from related parties

        18,295     (23,378 )

Accounts payable to related parties

        2,048     33,318  

Accounts payable, provisions and other current and non-current liabilities

        (108,790 )   16,489  

Paid interest

        (230,576 )   (155,192 )

Received interest

        21,975     16,304  

Income tax payable

        232,680     331,195  

Paid income taxes

        (233,210 )   (201,602 )

Net cash provided by (used in) operating activities

        927,802     610,836  

Investing activities

                 

Purchases of property, plant and equipment

        (497,059 )   (465,906 )

Proceeds from sale of property, plant and equipment

        4,524     20,431  

Acquisitions and investments, net of cash acquired, and purchases of intangible assets

  15     (1,922,745 )   (345,544 )

Proceeds from divestitures

  15     22,972     1,662,458  

Net cash provided by (used in) investing activities

        (2,392,308 )   871,439  

Financing activities

                 

Proceeds from short-term debt

        285,302     274,020  

Repayments of short-term debt

        (134,216 )   (162,061 )

Proceeds from short-term debt from related parties

            31,854  

Repayments of short-term debt from related parties

        (112,200 )   (37,800 )

Proceeds from long-term debt

        1,273,770     111,184  

Repayments of long-term debt

        (292,437 )   (250,904 )

Repayments of lease liabilities

        (319,927 )    

Repayments of lease liabilities from related parties

        (8,232 )    

Increase (decrease) of accounts receivable securitization program

        265,538     (291,639 )

Proceeds from exercise of stock options

        10,586     5,839  

Purchase of treasury stock

        (298,979 )   (37,221 )

Dividends paid

        (354,636 )   (324,838 )

Distributions to noncontrolling interests

        (123,235 )   (118,513 )

Contributions from noncontrolling interests

        31,256     14,756  

Net cash provided by (used in) financing activities

        222,590     (785,323 )

Effect of exchange rate changes on cash and cash equivalents

        18,386     (17,600 )

Cash and cash equivalents:

                 

Net increase (decrease) in cash and cash equivalents

        (1,223,530 )   679,352  

Cash and cash equivalents at beginning of period

        2,145,632     978,109  

Cash and cash equivalents at end of period

  5     922,102     1,657,461  

   

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statement of shareholders´ equity

For the six months ended June 30, 2019 and 2018 (unaudited)

 
   
   
   
   
   
   
   
  Accumulated other
comprehensive income (loss)
   
   
   
 
 
   
  Ordinary shares   Treasury stock    
   
  Total
FMC-AG & Co.
KGaA
shareholders'
equity
   
   
 
in € THOUS, except share data
  Note   Number of
shares
  No par
value
  Number of
shares
  Amount   Additional
paid in
capital
  Retained
earnings
  Foreign
currency
translation
  Cash flow
hedges
  Pensions   Noncontrolling
interests
  Total
equity
 

Balance at December 31, 2017

        308,111,000     308,111     (1,659,951 )   (108,931 )   3,969,245     7,137,255     (1,203,904 )   (18,336 )   (263,338 )   9,820,102     1,008,084     10,828,186  

Adjustment due to initial application of IFRS 9

       
   
   
   
   
   
(5,076

)
 
   
   
   
(5,076

)
 
   
(5,076

)

Adjusted Balance at December 31, 2017

        308,111,000     308,111     (1,659,951 )   (108,931 )   3,969,245     7,132,179     (1,203,904 )   (18,336 )   (263,338 )   9,815,026     1,008,084     10,823,110  

Proceeds from exercise of options and related tax effects

        104,905     105             5,393                     5,498         5,498  

Compensation expense related to stock options

                        3,949                     3,949         3,949  

Purchase of treasury stock

  2e             (431,000 )   (37,221 )                       (37,221 )       (37,221 )

Dividends paid

                            (324,838 )               (324,838 )       (324,838 )

Purchase/ sale of noncontrolling interests

                        (18,372 )                   (18,372 )   19,254     882  

Contributions from/ to noncontrolling interests

                                                (83,311 )   (83,311 )

Noncontrolling interests subject to put provisions

  13                         66,807                 66,807         66,807  

Net Income

                            1,272,536                 1,272,536     112,332     1,384,868  

Other comprehensive income (loss) related to:

                                                                             

Foreign currency translation

                                107,129     (15 )   (4,271 )   102,843     26,402     129,245  

Cash flow hedges, net of related tax effects

                                    9,306         9,306         9,306  

Comprehensive income

                                            1,384,685     138,734     1,523,419  

Balance at June 30, 2018

        308,215,905     308,216     (2,090,951 )   (146,152 )   3,960,215     8,146,684     (1,096,775 )   (9,045 )   (267,609 )   10,895,534     1,082,761     11,978,295  

Balance at December 31, 2018

        307,878,652     307,879     (999,951 )   (50,993 )   3,873,345     8,831,930     (911,473 )   (1,528 )   (290,749 )   11,758,411     1,143,547     12,901,958  

Adjustment due to initial application of IFRS 16

       
   
   
   
   
   
(120,320

)
 
   
   
   
(120,320

)
 
(15,508

)
 
(135,828

)

Adjusted balance at December 31, 2018

        307,878,652     307,879     (999,951 )   (50,993 )   3,873,345     8,711,610     (911,473 )   (1,528 )   (290,749 )   11,638,091     1,128,039     12,766,130  

Proceeds from exercise of options and related tax effects

        228,418     228             11,407                     11,635         11,635  

Compensation expense related to stock options

                        2,640                     2,640         2,640  

Purchase of treasury stock

  2e             (4,275,444 )   (303,666 )                       (303,666 )       (303,666 )

Withdrawal of treasury stock

  2e     (3,770,772 )   (3,771 )   3,770,772     269,796     (266,025 )                            

Dividends paid

                            (354,636 )               (354,636 )       (354,636 )

Purchase/ sale of noncontrolling interests

                        (6,553 )                   (6,553 )   36,172     29,619  

Contributions from/ to noncontrolling interests

                                                (95,369 )   (95,369 )

Noncontrolling interests subject to put provisions

  13                         (17,902 )               (17,902 )       (17,902 )

Net Income

                            524,529                 524,529     117,866     642,395  

Other comprehensive income (loss) related to:

                                                                             

Foreign currency translation

                                125,124     68     (959 )   124,233     5,690     129,923  

Cash flow hedges, net of related tax effects

                                    (10,318 )       (10,318 )       (10,318 )

Comprehensive income

                                            638,444     123,556     762,000  

Balance at June 30, 2019

        304,336,298     304,336     (1,504,623 )   (84,863 )   3,614,814     8,863,601     (786,349 )   (11,778 )   (291,708 )   11,608,053     1,192,398     12,800,451  

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

1. The Company and basis of presentation

The Company

Fresenius Medical Care AG & Co. KGaA ("FMC-AG & Co. KGaA" or the "Company"), a German partnership limited by shares (Kommanditgesellschaft auf Aktien) registered in the commercial registry of Hof an der Saale under HRB 4019, with its business address at Else-Kröner-Str. 1, 61352 Bad Homburg v. d. Höhe, is the world's largest kidney dialysis company, based on publicly reported sales and number of patients treated. The Company provides dialysis treatment and related dialysis care services to persons who suffer from end-stage renal disease ("ESRD"), as well as other health care services. The Company also develops and manufactures a wide variety of health care products, which includes dialysis and non-dialysis products. The Company's dialysis products include hemodialysis machines, peritoneal cyclers, dialyzers, peritoneal solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals and systems for water treatment. The Company's non-dialysis products include acute cardiopulmonary and apheresis products. The Company supplies dialysis clinics it owns, operates or manages with a broad range of products and also sells dialysis products to other dialysis service providers. The Company describes certain of its other health care services as "Care Coordination." Care Coordination currently includes, but is not limited to, the coordinated delivery of pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology services, health plan services, urgent care services and ambulant treatment services. Until June 28, 2018, Care Coordination also included the coordinated delivery of emergency, intensivist and hospitalist physician services as well as transitional care which the Company refers to as "hospital related physician services." All of these Care Coordination services together with dialysis care and related services represent the Company's health care services.

In these unaudited consolidated financial statements, "FMC-AG & Co. KGaA," or the "Company" refers to the Company or the Company and its subsidiaries on a consolidated basis, as the context requires. "Fresenius SE" and "Fresenius SE & Co. KGaA" refer to Fresenius SE & Co. KGaA. "Management AG" and the "General Partner" refer to Fresenius Medical Care Management AG which is FMC-AG & Co. KGaA's general partner and is wholly owned by Fresenius SE. "Management Board" refers to the members of the management board of Management AG and, except as otherwise specified, "Supervisory Board" refers to the supervisory board of FMC-AG & Co. KGaA. The term "North America Segment" refers to the North America operating segment, the term "EMEA Segment" refers to the Europe, Middle East and Africa operating segment, the term "Asia-Pacific Segment" refers to the Asia-Pacific operating segment, and the term "Latin America Segment" refers to the Latin America operating segment. For further discussion of the Company's operating segments, see note 14.

Basis of presentation

The consolidated financial statements and other financial information included in the Company's quarterly reports on Form 6-K and its Annual Report on Form 20-F for 2018 were prepared in accordance with IFRS as issued by the International Accounting Standards Board ("IASB"), using the euro as the Company's reporting currency. At June 30, 2019, there were no IFRS or International Financial Reporting Interpretation Committee ("IFRIC") interpretations as endorsed by the European Union relevant for interim reporting that differed from IFRS as issued by the IASB. As such, the accompanying condensed interim report complies with the requirements of International Accounting Standard ("IAS") 34, Interim Financial Reporting as well as with the rules concerning interim reporting as issued by the IASB and the conditions established by the U.S. Securities and Exchange Commission ("SEC") for the use of IFRS for preparation of financial statements included in reports filed with the SEC.

The consolidated financial statements at June 30, 2019 and for the three and six months ended June 30, 2019 and 2018 contained in this report are unaudited and should be read in conjunction with the consolidated financial statements contained in the Company's 2018 Annual Report on Form 20-F. The preparation of consolidated financial statements in conformity with IFRS requires management to make

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

1. The Company and basis of presentation (Continued)

estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expense during the reporting period. Actual results could differ from those estimates. Such financial statements reflect all adjustments that, in the opinion of management, are necessary for a fair presentation of the results of the periods presented. All such adjustments are of a normal recurring nature.

Starting on July 1, 2018, the Company's subsidiaries in Argentina applied IAS 29, Financial Reporting in Hyperinflationary Economies, due to the inflation in Argentina. Pursuant to IAS 29, the Company recorded a loss on its net monetary position of €11,103 for the six months ended June 30, 2019. The Company calculated the loss with the use of the Consumer Price Index (Índice de precios al consumidor) as published by the Argentine Statistics and Census Institute for the first six months ended June 30, 2019, which lists the level at 225.5 index points, a 22% increase since January 1, 2019.

As a result of the implementation of IFRS 16, Leases, the Company updated its accounting policies. Refer to "Recently implemented accounting pronouncements" below for further details on the updated policies. Excluding the policies update for IFRS 16, the accounting policies applied in the accompanying consolidated financial statements are the same as those applied in the consolidated financial statements as of and for the year ended December 31, 2018.

As of December 31, 2018, "Property, plant and equipment" included leased fixed assets of €36,402 recognized in accordance with IAS 17, Leases. These are transferred to the line item "Right-of-use assets" as of the beginning of fiscal year 2019.

As of December 31, 2018, "Current portion of long-term debt" included current lease liabilities from capital leases in accordance with IAS 17 of €9,387. From 2019, these are included in the balance sheet item "Current portion of long-term lease liabilities."

As of December 31, 2018, "Long-term debt, less current portion" included non-current lease liabilities from capital leases in accordance with IAS 17 of €26,757. From 2019, these are included in the balance sheet item "Long-term lease liabilities, less current portion."

In the consolidated statement of cash flows, in the comparative information for the period from January 1, 2018 to June 30, 2018, the line item "Repayments of long-term debt" included repayments of lease liabilities from capital leases in accordance with IAS 17 of €5,379. In the previous periods this line item was labeled as "Repayments of long-term debt and capital lease obligations." From 2019, these repayments are included in the line item "Repayments of lease liabilities" in accordance with IFRS 16.

Based on the IFRIC agenda decision relating to the applicability of IAS 12, Income Taxes, to the accounting for interest and penalties related to income taxes and an interpretation issued by the Accounting Standards Committee of Germany approved in September 2018, interest and penalties related to income taxes have been reclassified from income tax expense to interest expense, net in the amount of €411 and €3,368 for the three and six months ended June 30, 2018.

The results of operations for the three and six months ended June 30, 2019 are not necessarily indicative of the results of operations for the year ending December 31, 2019.

New accounting pronouncements

Recently implemented accounting pronouncements

The Company has prepared its consolidated financial statements at and for the three- and six-month periods ended June 30, 2019 in conformity with IFRS in force for the interim periods on January 1, 2019.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

1. The Company and basis of presentation (Continued)

In the first quarter of 2019, the Company applied the following new standard relevant for its business for the first time:

IFRS 16

In January 2016, the IASB issued IFRS 16, which supersedes the current standard on lease-accounting, IAS 17, as well as the interpretations IFRIC 4, Determining whether an arrangement contains a lease, Standard Interpretations Committee ("SIC")-15, Operating leases—incentives and SIC-27, Evaluating the substance of transactions in the legal form of a lease.

IFRS 16 significantly changes lessee accounting. For almost all leases, a lessee is required to recognize a right-of-use asset representing its right to use the underlying leased asset and a lease liability representing its obligation to make lease payments.

Leases with a total maximum term of twelve months (short-term leases) and leases for underlying assets of low-value may be exempt from balance sheet recognition by applying an accounting policy choice. Depreciation of the right-of-use asset and interest on the lease liability must be recognized in the income statement for every on-balance lease contract. Therefore, straight-line rental expenses will no longer be shown for the vast majority of the leases. The lessor accounting requirements in IAS 17 are substantially carried forward.

The Company applies the modified retrospective method in accordance with IFRS 16 as the transition method. Accordingly, the cumulative effect from first-time application is recognized in the opening balance of retained earnings as of January 1, 2019 without adjustments to the comparative information of the previous period. In the application of the modified retrospective method, the carrying amount of the lease liability at the date of the initial application is determined by discounting the remaining lease payments of lease agreements that were classified as operating leases under IAS 17 using the term-, country-, and currency-specific incremental borrowing rate at date of initial application. Furthermore, right-of-use assets are to be recognized. In the application of the modified retrospective method, the carrying amount of the right-of-use asset equals the carrying amount of the lease liability adjusted for any prepaid or accrued lease payments. For a part of the existing contracts, the Company recognizes the right-of-use asset with its carrying amount assuming the new standard had been applied since the commencement date of the lease discounted using its term-, country-, and currency-specific incremental borrowing rate at the date of initial application.

Regarding the options and exemptions available upon the initial application of IFRS 16, the Company adopted the following approach:

IFRS 16 is only applied to contracts that were previously identified as leases under IAS 17 and IFRIC 4.

Recognition, valuation and disclosure principles of IFRS 16 are not applied to lease contracts with a lease term ending in less than 12 months from the date of the initial application. The respective lease contracts are accounted for as if they were short term leases and recognized as an expense accordingly.

Material initial direct costs are included in the measurement of a right-of-use asset with the carrying amount assuming the new standard was applied since the commencement date of the lease.

Upon initial recognition no impairment review is performed. The right-of-use assets are adjusted for onerous contract provisions, recognized on the consolidated balance sheet immediately before the date of initial application.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

1. The Company and basis of presentation (Continued)

Right-of-use assets from lease contracts are classified in accordance with the Company's classification of property, plant and equipment:

Right-of-use assets: Land

Right-of-use assets: Buildings and improvements

Right-of-use assets: Machinery and equipment

In addition to the right-of-use asset categories above, prepayments on right-of-use assets are presented separately. Right-of-use assets from lease contracts and lease obligations are presented separately from property, plant and equipment and other financial debt in the consolidated balance sheet.

For lease contracts that include both lease and non-lease components that are not separable from lease components, no allocation is performed. Each lease component and any associated non-lease components are accounted for as a single lease.

Upon the initial application of IFRS 16 as of January 1, 2019, the Company recognized right-of-use assets of €4,266,753 and lease liabilities from third and related parties of €4,547,534. The cumulative effect from the first-time application is recognized in the opening balance of retained earnings (€120,320) as well as in non-controlling interests (€15,508) as of January 1, 2019.

The following table shows a reconciliation of the future minimum rental payments as of December 31, 2018 to the lease liabilities as of January 1, 2019:

Reconciliation of lease liabilities upon the initial application of IFRS 16

in € THOUS

 

Future minimum rental payments as of December 31, 2018 (IAS 17)

    5,527,638  

less short-term leases

    (21,936 )

less leases of low-value assets

    (34,145 )

other

    (30,066 )

Gross lease liabilities as of January 1, 2019

    5,441,491  

Discounting

    (893,957 )

Lease liabilities as a result of the initial application of IFRS 16 as of January 1, 2019

    4,547,534  

Lease liabilities from capital leases as of December 31, 2018 (IAS 17)

    36,144  

Lease liabilities as of January 1, 2019

    4,583,678  

The lease liabilities were discounted using the term-, country-, and currency-specific incremental borrowing rate as of January 1, 2019. The weighted average discount rate was 3.69%.

Leasing in the consolidated statements of income

The Company decided not to apply the guidance within IFRS 16 to short-term leases as well as leases for underlying assets of low-value. These lease payments will be recognized as expenses over the respective lease terms.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

1. The Company and basis of presentation (Continued)

The following table shows the effects from lease agreements on the consolidated statements of income for the three and six months ended June 30, 2019:

Leasing in the consolidated statements of income

in € THOUS

 

 
  For the three
months ended
June 30, 2019
  For the six
months ended
June 30, 2019
 

Depreciation on right-of-use assets

    173,996     342,889  

Expenses relating to short-term leases

    10,282     22,493  

Expenses relating to leases of low-value assets

    5,668     11,807  

Expenses relating to variable lease payments

    2,934     9,614  

Interest expense on lease liabilities

    43,944     85,050  

Leasing in the consolidated balance sheets

At June 30, 2019, the book values of right-of-use assets consisted of the following:

Right-of-use assets

in € THOUS

 

 
  June 30, 2019  

Right-of-use assets: Land

    28,263  

Right-of-use assets: Buildings and improvements

    3,824,670  

Right-of-use assets: Machinery and equipment

    373,624  

Right-of-use assets: Advanced Payments

    96  

Right-of-use assets

    4,226,653  

In the first six months of fiscal year 2019, additions to right-of-use assets were €255,235.

Recent accounting pronouncements not yet adopted

The IASB issued the following new standard which is relevant for the Company:

IFRS 17, Insurance Contracts

In May 2017, the IASB issued IFRS 17, Insurance Contracts. IFRS 17 establishes principles for the recognition, measurement, presentation and disclosure related to the issuance of insurance contracts. IFRS 17 replaces IFRS 4, Insurance Contracts, which was brought in as an interim standard in 2004. IFRS 4 permitted the use of national accounting standards for the accounting of insurance contracts under IFRS. As a result of the varied application for insurance contracts there was a lack of comparability among peer groups. IFRS 17 eliminates this diversity in practice by requiring all insurance contracts to be accounted for using current values. The frequent updates to the insurance values are expected to provide more useful information to users of financial statements. IFRS 17 is effective for fiscal years beginning on or after January 1, 2021. Earlier adoption is permitted for entities that have also adopted IFRS 9, Financial Instruments and IFRS 15, Revenue from Contracts with Customers. The Company is evaluating the impact of IFRS 17 on the consolidated financial statements.

In the Company's view, all other pronouncements issued by the IASB do not have a material impact on the consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

2. Notes to the consolidated statements of income

a)    Revenue

The Company has recognized the following revenue in the consolidated statement of income for the three and six months ended June 30, 2019 and 2018:

Revenue

in € THOUS

 

 
  For the three months ended June 30,  
 
  2019   2018  
 
  Revenue from
contracts with
customers
  Other
revenue
  Total   Revenue from
contracts with
customers
  Other
revenue
  Total  

Health care services

                                     

Dialysis services

    3,120,267         3,120,267     2,806,544         2,806,544  

Care Coordination

    278,937     55,993     334,930     528,226     50,037     578,263  

    3,399,204     55,993     3,455,197     3,334,770     50,037     3,384,807  

Health care products

                                     

Dialysis products

    839,369     33,097     872,466     782,304     27,696     810,000  

Non-dialysis products

    17,369         17,369     18,898         18,898  

    856,738     33,097     889,835     801,202     27,696     828,898  

Total

    4,255,942     89,090     4,345,032     4,135,972     77,733     4,213,705  

 

 
  For the six months ended June 30,  
 
  2019   2018  
 
  Revenue from
contracts with
customers
  Other
revenue
  Total   Revenue from
contracts with
customers
  Other
revenue
  Total  

Health care services

                                     

Dialysis services

    6,077,648         6,077,648     5,454,837         5,454,837  

Care Coordination

    578,481     116,376     694,857     1,035,470     103,295     1,138,765  

    6,656,129     116,376     6,772,505     6,490,307     103,295     6,593,602  

Health care products

                                     

Dialysis products

    1,602,254     66,887     1,669,141     1,512,260     45,432     1,557,692  

Non-dialysis products

    35,943         35,943     38,040         38,040  

    1,638,197     66,887     1,705,084     1,550,300     45,432     1,595,732  

Total

    8,294,326     183,263     8,477,589     8,040,607     148,727     8,189,334  

b)    (Gain) loss related to divestitures of Care Coordination activities

On June 28, 2018, the Company divested its controlling interest in Sound Inpatient Physicians, Inc. ("Sound") to an investment consortium led by Summit Partners, L.P., ("Summit Consortium"). The total transaction proceeds were $1,770,516 (€1,531,109), net of related tax payments. For the six months ended June 30, 2018, the pre-tax gain related to divestitures for Care Coordination activities was €820,054, which primarily related to this divestiture, the effect of the six-month impact from the increase in valuation of Sound's share-based payment program, incentive compensation expense and other costs caused by the

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

2. Notes to the consolidated statements of income (Continued)

divestiture of Sound. Sound was included in Care Coordination within the North America Segment. The Company's history with Sound, prior to divestment, includes the following milestones:

In July 2014, the Company made an investment for a majority interest in Sound, a physician services organization focused on hospitalist, emergency, intensivist and post-acute care services, expanding the health care services we offer.

In November 2014, Sound acquired Cogent Healthcare, expanding Sound to serve over 180 hospitals in 35 states with more than 1,750 providers.

In 2017, the Company increased its interest in Sound raising the Company majority interest to almost 100% during the first half of 2017.

c)     Research and development expenses

Research and development expenses of €74,634 for the six months ended June 30, 2019 (for the six months ended June 30, 2018: €69,545) include expenditures for research and non-capitalizable development costs as well as depreciation and amortization expenses related to capitalized development costs of €369 (for the six months ended June 30, 2018: €161).

d)    Interest income

In 2014, the Company issued equity-neutral convertible bonds (the "Convertible Bonds"). Since November 2017, bond holders can exercise their conversion rights embedded in the bonds at certain dates ("Embedded Derivatives"). To fully offset the economic exposure from the conversion feature, the Company purchased call options on its shares ("Share Options"). Interest income is recognized either for the increase in the fair value of the conversion feature or the Share Options, dependent upon which is applicable in the year to date period under review.

During the six months ended June 30, 2019, the fair value of the Share Options increased and, as such, the increase is shown as interest income. However, the increase in the fair value of the Share Options for the six-month period ended June 30, 2019 was lower than for the three months ended March 31, 2019, which leads to the presentation of negative interest income for the three months ended June 30, 2019.

During the six months ended June 30, 2018, the fair value of the Embedded Derivatives increased and, as such, the increase is shown as interest income. However, the increase in the fair value of the Embedded Derivatives for the six-month period ended June 30, 2018 was lower than for the three months ended March 31, 2018, which leads to the presentation of negative interest income for the three months ended June 30, 2018.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

2. Notes to the consolidated statements of income (Continued)

e)     Earnings per share

The following table contains reconciliations of the numerators and denominators of the basic and fully diluted earnings per share computations for 2019 and 2018:

Reconciliation of Basic and Diluted Earnings per Share

in € THOUS, except share and per share data

 

 
  For the three months
ended June 30,
  For the six months
ended June 30,
 
 
  2019   2018   2019   2018  

Numerator:

                         

Net income attributable to shareholders of FMC-AG & Co. KGaA

    253,780     993,981     524,529     1,272,536  

Denominators:

                         

Weighted average number of shares outstanding

    303,456,178     306,355,571     305,048,922     306,404,051  

Potentially dilutive shares

    107,755     927,226     118,134     946,366  

Basic earnings per share

    0.84     3.24     1.72     4.15  

Fully diluted earnings per share

    0.84     3.23     1.72     4.14  

Share buy-back program

In 2019, the Company will continue to utilize the authorization granted by the Company's Annual General Meeting on May 12, 2016 to conduct a share buy-back program. The current share buy-back program, announced on June 14, 2019 allows for repurchase of a maximum of 12,000,000 shares at a total purchase price, excluding ancillary transaction costs, of up to €660,000 between June 17, 2019 and June 17, 2020. The prior buy-back program expired on May 10, 2019 and the repurchased shares were retired. The following tabular disclosure provides the number of shares acquired in the context of the share buy-back programs as well as the retired treasury stock:

As of June 30, 2019, the Company holds 1,504,623 treasury shares. These shares will be used solely to reduce the registered share capital of the Company by cancellation of the acquired shares.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

2. Notes to the consolidated statements of income (Continued)

Treasury Stock

Period
  Average price
per share
  Total number of shares
purchased and retired
as part of publicly
announced plans or
programs
  Total value
of shares (1)
 
 
  in €
   
  in € THOUS
 

December 31, 2017

    65.63     1,659,951     108,931  

Purchase of Treasury Stock

                   

May 2018

    86.69     173,274     15,020  

June 2018

    86.14     257,726     22,201  

Repurchased Treasury Stock

    86.37     431,000     37,221  

Retirement of repurchased Treasury Stock

                   

December 2018

    87.23     1,091,000     95,159  

December 31, 2018

    51.00     999,951     50,993  

Purchase of Treasury Stock

                   

March 2019

    69.86     1,629,240     113,816  

April 2019

    72.83     1,993,974     145,214  

May 2019

    72.97     147,558     10,766  

Repurchased Treasury Stock

    71.55     3,770,772     269,796  

Retirement of repurchased Treasury Stock

                   

June 2019

    71.55     3,770,772     269,796  

Purchase of Treasury Stock

                   

June 2019 (2)

    67.11     504,672     33,870  

Total

    56.40     1,504,623     84,863  

(1)
The value of shares repurchased in 2018 and 2019 is inclusive of fees (net of taxes) paid in the amount of approximately €8 and €11, respectively, for services rendered.

(2)
At June 30, 2019, the maximum number of shares that may be purchased pursuant to the buy-back program expiring on June 17, 2020 is 11,495,328.

3. Acquisition of NxStage Medical, Inc.

On February 21, 2019, the Company acquired all of the outstanding shares of NxStage Medical, Inc. ("NxStage") for $30.00 per common share. The total acquisition value of this business combination, net of cash acquired, is $1,976,235 (€1,740,563 at date of closing). NxStage is a leading medical technology company that develops, produces and markets an innovative product portfolio of medical devices for use in home dialysis and in the critical care setting. This acquisition is part of the Company's stated strategy to expand and complement its existing business through acquisitions. Generally, these acquisitions do not change the Company's business model and can be integrated without disruption to its existing business, requiring little or no realignment of its structures. The NxStage acquisition is consistent in this regard as it supplements the Company's existing business.

The following table summarizes the estimated fair values, as of the date of acquisition based upon information available, as of June 30, 2019, of assets acquired and liabilities assumed at the date of the

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

3. Acquisition of NxStage Medical, Inc. (Continued)

acquisition. Any adjustments to acquisition accounting, net of related income tax effects, will be recorded with a corresponding adjustment to goodwill:

Estimated Fair Values of Assets Acquired and Liabilities Assumed—Preliminary

in $ THOUS

 

 
  in USD  

Cash and cash equivalents

    47,203  

Trade accounts and other receivables

    34,062  

Inventories

    64,895  

Other current assets

    18,681  

Property, plant and equipment

    95,762  

Right-of-use assets

    21,603  

Intangible assets and other assets

    826,750  

Goodwill

    1,160,438  

Accounts payable, current provisions and other current liabilities

    (72,446 )

Deferred taxes

    (121,139 )

Lease liabilities

    (22,065 )

Other liabilities

    (26,243 )

Noncontrolling interests

    (4,063 )

Total acquisition cost

    2,023,438  

Less:

       

Cash acquired

    (47,203 )

Net Cash paid

    1,976,235  

As of the acquisition date, it is estimated that amortizable intangible assets acquired in this acquisition will have weighted average useful lives of 13 years.

Goodwill in the amount of $1,160,438 was acquired as part of the NxStage acquisition and is allocated to the North America Segment.

NxStage's results have been included in the Company's consolidated statement of income since February 21, 2019. Specifically, NxStage has contributed revenue and an operating loss in the amount of $123,276 (€109,115) and $28,159 (€24,924) respectively, to the Company's consolidated operating income. This operating loss amount does not include synergies which may have resulted at consolidated entities outside NxStage since the acquisition closed.

Pro forma financial information

The following financial information, on a pro forma basis, reflects the consolidated results of operations for the three and six months ended June 30, 2019 as if the NxStage acquisition had been consummated on January 1, 2019 and excludes related transaction costs. The pro-forma financial information is not

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

3. Acquisition of NxStage Medical, Inc. (Continued)

necessarily indicative of the results of operations as it would have been had the transactions been consummated on January 1, 2019.

Pro forma financial Information

in € THOUS, except per share data

 

 
  For the three months
ended June 30, 2019
  For the six months
ended June 30, 2019
 
 
  in EUR   in EUR  

Pro forma revenue

    4,345,267     8,522,057  

Pro forma net income attributable to shareholders of FMC-AG & Co. KGaA

    256,296     508,618  

Basic earnings per share

    0.84     1.67  

Fully diluted earnings per share

    0.84     1.67  

4. Related party transactions

Fresenius SE is the Company's largest shareholder and owns 31.17% of the Company's outstanding shares, excluding treasury shares held by the Company, at June 30, 2019. The Company has entered into certain arrangements for services and products with Fresenius SE or its subsidiaries and with certain of the Company's equity method investees as described in item a) below. The arrangements for leases with Fresenius SE or its subsidiaries are described in item b) below. The Company's terms related to the receivables or payables for these services, leases and products are generally consistent with the normal terms of the Company's ordinary course of business transactions with unrelated parties and the Company believes that these arrangements reflect fair market terms. The Company utilizes various methods to verify the commercial reasonableness of its related party arrangements. Financing arrangements as described in item c) below have agreed upon terms which are determined at the time such financing transactions occur and reflect market rates at the time of the transaction. The relationship between the Company and its key management personnel who are considered to be related parties is described in item d) below. Our related party transactions are settled through Fresenius SE's cash management system where appropriate.

a)
Service agreements and products

The Company is party to service agreements with Fresenius SE and certain of its affiliates (collectively the "Fresenius SE Companies") to receive services, including, but not limited to: administrative services, management information services, employee benefit administration, insurance, information technology services, tax services and treasury management services. The Company also provides central purchasing services to the Fresenius SE Companies. These related party agreements generally have a duration of 1 to 5 years and are renegotiated on an as needed basis when the agreement comes due. The Company provides administrative services to one of its equity method investees.

The Company sold products to the Fresenius SE Companies and made purchases from the Fresenius SE Companies and equity method investees. In addition, Fresenius Medical Care Holdings, Inc. ("FMCH") purchases heparin supplied by Fresenius Kabi USA, Inc. ("Kabi USA"), through an independent group purchasing organization ("GPO"). Kabi USA is an indirect, wholly-owned subsidiary of Fresenius SE. The Company has no direct supply agreement with Kabi USA and does not submit purchase orders directly to Kabi USA. FMCH acquires heparin from Kabi USA, through the GPO contract, which was negotiated by the GPO at arm's length on behalf of all members of the GPO.

The Company entered into a ten-year agreement with a Fresenius SE Company for the manufacturing of infusion bags. In order to establish the new production line, the Company purchased machinery from the

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

4. Related party transactions (Continued)

Fresenius SE company in the amount of €516 during the six months ended June 30, 2019 and €3,274 during the six months ended June 30, 2018.

In December 2010, the Company and Galenica Ltd. (now known as Vifor Pharma Ltd.) formed the renal pharmaceutical company Vifor Fresenius Medical Care Renal Pharma Ltd., ("VFMCRP"), an equity method investee of which the Company owns 45%. The Company has entered into exclusive supply agreements to purchase certain pharmaceuticals from VFMCRP.

Below is a summary, including the Company's receivables from and payables to the indicated parties resulting from the above described transactions with related parties.

Service agreements and products with related parties

in € THOUS

 

 
  For the six months
ended June 30, 2019
  For the six months
ended June 30, 2018
  June 30, 2019   December 31, 2018  
 
  Sales of
goods and
services
  Purchases of
goods and
services
  Sales of
goods and
services
  Purchases of
goods and
services
  Accounts
receivable
  Accounts
payable
  Accounts
receivable
  Accounts
payable
 

Service agreements (1)

                                                 

Fresenius SE

    77     11,972     308     10,772     402     4,032     378     4,019  

Fresenius SE affiliates

    1,651     47,651     1,671     46,510     938     5,139     681     8,470  

Equity method investees

    1,426         9,024         92         2,449      

Total

    3,154     59,623     11,003     57,282     1,432     9,171     3,508     12,489  

Products

                                                 

Fresenius SE affiliates

    21,655     17,559     17,289     18,652     11,647     4,331     8,750     3,658  

Equity method investees

        256,362         196,976         80,810         57,975  

Total

    21,655     273,921     17,289     215,628     11,647     85,141     8,750     61,633  

(1)
In addition to the above shown accounts payable, accrued expenses for service agreements with related parties amounted to €5,984 and €9,376 at June 30, 2019 and December 31, 2018, respectively.
b)
Lease agreements

In addition to the above-mentioned product and service agreements, the Company is a party to real estate lease agreements with the Fresenius SE Companies, which mainly include leases for the Company's corporate headquarters in Bad Homburg, Germany and production sites in Schweinfurt and St. Wendel, Germany. The majority of the leases expire at the end of 2026.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

4. Related party transactions (Continued)

Below is a summary resulting from the above described lease agreements with related parties. For information on the implementation of IFRS 16, see note 1.

Lease agreements with related parties

in € THOUS

 

 
  For the six months ended
June 30, 2019
  For the six months ended
June 30, 2018
  June 30, 2019  
 
  Depreciation   Interest
expense
  Lease
expense (1)
  Lease income   Lease expense   Right-of-use
asset
  Lease
liability
 

Fresenius SE

    2,524     250     1,955         4,274     33,220     33,431  

Fresenius SE affiliates

    6,299     715     275         7,318     96,385     96,672  

Total

    8,823     965     2,230         11,592     129,605     130,103  

(1)
Short-term leases and expenses relating to variable lease payments are exempted from balance sheet recognition.
c)
Financing

The Company receives short-term financing from and provides short-term financing to Fresenius SE. The Company also utilizes Fresenius SE's cash management system for the settlement of certain intercompany receivables and payables with its subsidiaries and other related parties. As of June 30, 2019 and December 31, 2018, the Company had accounts receivable from Fresenius SE related to short-term financing in the amount of €61,139 and €80,228, respectively. As of June 30, 2019 and December 31, 2018, the Company had accounts payable to Fresenius SE related to short-term financing in the amount of €52,926 and €32,454, respectively. The interest rates for these cash management arrangements are set on a daily basis and are based on the then-prevailing overnight reference rate, with a floor of zero, for the respective currencies.

On August 19, 2009, the Company borrowed €1,500 from the General Partner on an unsecured basis at 1.335%. The loan repayment has been extended periodically and is currently due August 22, 2019 with an interest rate of 0.825%. On November 28, 2013, the Company borrowed an additional €1,500 with an interest rate of 1.875% from the General Partner. The loan repayment has been extended periodically and is currently due on November 23, 2019 with an interest rate of 0.825%.

At June 30, 2019 and December 31, 2018, a subsidiary of Fresenius SE held unsecured bonds issued by the Company in the amount of €5,000 and €6,000, respectively. The bonds were issued in 2011 and 2012, mature in 2021 and 2019, respectively, and each has a coupon rate of 5.25% with interest payable semiannually.

At June 30, 2019 and December 31, 2018, the Company borrowed from Fresenius SE in the amount of €73,700 on an unsecured basis at an interest rate of 0.825% and €185,900 on an unsecured basis at an interest rate of 0.825%, respectively. For further information on this loan agreement, see note 8.

d)
Key management personnel

Due to the Company's legal form of a German partnership limited by shares, the General Partner holds a key management position within the Company. In addition, as key management personnel, members of the Management Board and the Supervisory Board, as well as their close relatives, are considered related parties.

The Company's Articles of Association provide that the General Partner shall be reimbursed for any and all expenses in connection with management of the Company's business, including remuneration of the members of the General Partner's supervisory board and the members of the Management Board. The

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

4. Related party transactions (Continued)

aggregate amount reimbursed to the General Partner was €13,029 and €9,414, respectively, for its management services during the six months ended June 30, 2019 and 2018. As of June 30, 2019 and December 31, 2018, the Company had accounts receivable from the General Partner in the amount of €217 and €176, respectively. As of June 30, 2019 and December 31, 2018, the Company had accounts payable to the General Partner in the amount of €8,761 and €47,205, respectively.

5. Cash and cash equivalents

As of June 30, 2019 and December 31, 2018, cash and cash equivalents are as follows:

Cash and cash equivalents

in € THOUS

 

 
  June 30,
2019
  December 31,
2018
 

Cash

    776,682     831,885  

Securities and time deposits

    145,420     1,313,747  

Cash and cash equivalents

    922,102     2,145,632  

The cash and cash equivalents disclosed in the table above, and in the consolidated statements of cash flows, include at June 30, 2019 an amount of €6,213 (December 31, 2018: €5,002) from collateral requirements towards an insurance company in North America that are not available for use.

6. Trade accounts and other receivables

As of June 30, 2019 and December 31, 2018, trade accounts and other receivables are as follows:

Trade accounts and other receivables

in € THOUS

 

 
  June 30, 2019   December 31, 2018  
 
   
  thereof credit-
impaired
   
  thereof Credit-
Impaired
 

Trade accounts and other receivables, gross

    3,710,930     440,568     3,455,721     325,240  

thereof finance lease receivables

    50,391         28,726      

less allowances

    (130,650 )   (94,503 )   (118,015 )   (85,775 )

Trade accounts and other receivables

    3,580,280     346,065     3,337,706     239,465  

The other receivables in the amount of €95,726 include receivables from finance leases, operating leases and insurance contracts (December 31, 2018: €66,496).

All trade accounts and other receivables are due within one year. A small portion of the trade account receivables are subject to factoring agreements.

Trade accounts receivables and finance lease receivables with a term of more than one year in the amount of €122,734 (December 31, 2018: €120,668) are included in the balance sheet item "Other non-current assets."

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

7. Inventories

At June 30, 2019 and December 31, 2018, inventories consisted of the following:

Inventories

in € THOUS

 

 
  June 30, 2019   December 31, 2018  

Finished goods

    908,679     774,133  

Health care supplies

    436,294     391,593  

Raw materials and purchased components

    241,239     224,054  

Work in process

    101,280     77,023  

Inventories

    1,687,492     1,466,803  

8. Short-term debt and short-term debt from related parties

At June 30, 2019 and December 31, 2018, short-term debt and short-term debt from related parties consisted of the following:

Short-term debt and short-term debt from related parties

in € THOUS

 

 
  June 30, 2019   December 31, 2018  

Commercial paper program

    989,916     999,873  

Borrowings under lines of credit

    368,143     204,491  

Other

    72     930  

Short-term debt

    1,358,131     1,205,294  

Short-term debt from related parties (see note 4 c)

    76,700     188,900  

Short-term debt and short-term debt from related parties

    1,434,831     1,394,194  

The Company and certain consolidated entities operate a multi-currency notional pooling cash management system. The Company met the conditions to offset balances within this cash pool for reporting purposes. At June 30, 2019, cash and borrowings under lines of credit in the amount of €436,598 (December 31, 2018: €122,256) were offset under this cash management system.

Commercial paper program

The Company maintains a commercial paper program under which short-term notes of up to €1,000,000 can be issued. At June 30, 2019, the outstanding commercial paper amounted to €990,000 (December 31, 2018: €1,000,000).

Other

At June 30, 2019, the Company had €72 (December 31, 2018: €930) of other debt outstanding related to fixed payments outstanding for acquisitions.

Short-term debt from related parties

The Company is party to an unsecured loan agreement with Fresenius SE under which the Company or FMCH may request and receive one or more short-term advances up to an aggregate amount of $400,000 until maturity on July 31, 2022. For further information on short-term debt from related parties, see note 4 c).

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

9. Long-term debt

As of June 30, 2019 and December 31, 2018, long-term debt consisted of the following:

Long-term debt

in € THOUS

 

 
  June 30, 2019   December 31, 2018  

Amended 2012 Credit Agreement

    2,429,198     1,887,357  

Bonds

    4,150,072     3,700,446  

Convertible Bonds

    396,356     393,232  

Accounts Receivable Facility

    262,817      

Capital lease obligations (1)

        36,144  

Other

    192,979     134,855  

Long-term debt (2)

    7,431,422     6,152,034  

Less current portion

    (1,508,584 )   (1,106,519 )

Long-term debt, less current portion (2)

    5,922,838     5,045,515  

(1)
As of December 31, 2018, this line item included lease liabilities from capital leases in accordance with IAS 17. From 2019, these are transferred to balance sheet items "Current portion of long-term lease liabilities" and "Long-term lease liabilities, less current portion" (see Note 1).

(2)
Labeled as "Long-term debt and capital lease obligations" as of December 31, 2018, this line item included lease liabilities from capital leases in accordance with IAS 17. From 2019, these are transferred to balance sheet item "Long-term lease liabilities, less current portion" (see Note 1).

On June 20, 2019, Fresenius Medical Care US Finance III, Inc. issued bonds with a volume of $500,000. The bonds have a maturity of 10 years and a coupon of 3.75%. The bonds were issued at a price of 98.461%. The proceeds were used for general corporate purposes and the refinancing of maturing liabilities.

Amended 2012 Credit Agreement

The following table shows the available and outstanding amounts under the Amended 2012 Credit Agreement at June 30, 2019 and December 31, 2018:

Amended 2012 Credit Agreement—Maximum amount available and balance outstanding

in THOUS

 

 
  Maximum amount available
June 30, 2019
  Balance outstanding
June 30, 2019 (1)
 

Revolving credit USD 2017 / 2022

  $ 900,000   790,861   $    

Revolving credit EUR 2017 / 2022

  600,000   600,000   600,000   600,000  

USD term loan 2017 / 2022

  $ 1,290,000   1,133,568   $ 1,290,000   1,133,568  

EUR term loan 2017 / 2022

  301,000   301,000   301,000   301,000  

EUR term loan 2017 / 2020

  400,000   400,000   400,000   400,000  

        3,225,429         2,434,568  

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

9. Long-term debt (Continued)


 
  Maximum amount available
December 31, 2018
  Balance outstanding
December 31, 2018 (1)
 

Revolving credit USD 2017 / 2022

  $ 900,000   786,026   $    

Revolving credit EUR 2017 / 2022

  600,000   600,000      

USD term loan 2017 / 2022

  $ 1,350,000   1,179,039   $ 1,350,000   1,179,039  

EUR term loan 2017 / 2022

  315,000   315,000   315,000   315,000  

EUR term loan 2017 / 2020

  400,000   400,000   400,000   400,000  

        3,280,065         1,894,039  

(1)
Amounts shown are excluding debt issuance costs.

Accounts Receivable Facility

The following table shows the available and outstanding amounts under the Accounts Receivable Facility at June 30, 2019 and at December 31, 2018:

Accounts Receivable Facility—Maximum amount available and balance outstanding

in THOUS

 

 
  Maximum amount
available June 30,
2019 (1)
  Balance outstanding
June 30, 2019 (2)
 

Accounts Receivable Facility

  $ 900,000   790,861   $ 300,000   263,620  

 

 
  Maximum amount
available December 31,
2018 (1)
  Balance outstanding
December 31, 2018 (2)
 

Accounts Receivable Facility

  $ 900,000   786,026   $    

(1)
Subject to availability of sufficient accounts receivable meeting funding criteria.

(2)
Amounts shown are excluding debt issuance costs.

The Company also had letters of credit outstanding under the Accounts Receivable Facility in the amount of $26,631 and $26,631 (€23,402 and €23,259) at June 30, 2019 and December 31, 2018, respectively. These letters of credit are not included above as part of the balance outstanding at June 30, 2019 and December 31, 2018; however, they reduce available borrowings under the Accounts Receivable Facility.

10. Supplementary information on capital management

As of June 30, 2019 and December 31, 2018 the total equity in percent of total assets was 40.1% and 49.2%, respectively, and the debt in percent of total assets was 42.0% and 28.8%, respectively.

Further information on the Company's capital management is available in the Annual Report on Form 20-F as of December 31, 2018.

The Company's financing structure and business model are reflected in the investment grade ratings. The Company is covered and rated investment grade by the three leading rating agencies, Moody's, Standard & Poor's and Fitch.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

10. Supplementary information on capital management (Continued)

Rating (1)

 
  Standard &
Poor´s
  Moody´s   Fitch
Corporate Credit Rating   BBB   Baa3   BBB-

Outlook

 

stable

 

stable

 

stable

(1)
A rating is not a recommendation to buy, sell or hold securities of the Company, and may be subject to suspension, change or withdrawal at any time by the assigning rating agency.

11. Employee benefit plans

The Company currently has five principal pension plans, one for German employees, three for French employees and the other covering employees in the United States, the last of which was curtailed in 2002. Plan benefits are generally based on years of service and final salary. As there is no legal requirement in Germany to fund defined benefit plans, the Company's pension obligations in Germany are unfunded. Each year FMCH contributes to the plan covering United States employees at least the minimum required by the Employee Retirement Income Security Act of 1974, as amended. In 2019, FMCH did not have a minimum funding requirement. For the first six months of 2019, the Company voluntarily provided €575 to the defined benefit plan. For the remaining period of 2019, the Company expects further voluntarily contributions of €517.

The following table provides the calculations of net periodic benefit cost for the three and six months ended June 30, 2019 and 2018, respectively.

Net periodic benefit cost

in € THOUS

 

 
  For the three months
ended June 30,
  For the six months
ended June 30,
 
 
  2019   2018   2019   2018  

Current service cost

    7,460     6,838     14,904     13,632  

Net interest cost

    3,463     3,240     6,917     6,448  

Net periodic benefit costs

    10,923     10,078     21,821     20,080  

12. Commitments and contingencies

Legal and regulatory matters

The Company is routinely involved in claims, lawsuits, regulatory and tax audits, investigations and other legal matters arising, for the most part, in the ordinary course of its business of providing health care services and products. Legal matters that the Company currently deems to be material or noteworthy are described below. The Company records its litigation reserves for certain legal proceedings and regulatory matters to the extent that the Company determines an unfavorable outcome is probable and the amount of loss can be reasonably estimated. For the other matters described below, the Company believes that the loss probability is remote and/or the loss or range of possible losses cannot be reasonably estimated at this time. The outcome of litigation and other legal matters is always difficult to predict accurately and outcomes that are not consistent with the Company's view of the merits can occur. The Company believes that it has valid defenses to the legal matters pending against it and is defending itself vigorously. Nevertheless, it is possible that the resolution of one or more of the legal matters currently pending or

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

threatened could have a material adverse effect on its business, results of operations and financial condition.

On February 15, 2011, a whistleblower (relator) action under the False Claims Act against FMCH was unsealed by order of the United States District Court for the District of Massachusetts and served by the relator. United States ex rel. Chris Drennen v. Fresenius Medical Care Holdings, Inc., 2009 Civ. 10179 (D. Mass.). The relator's complaint, which was first filed under seal in February 2009, alleged that FMCH sought and received reimbursement from government payors for serum ferritin and multiple forms of hepatitis B laboratory tests that were medically unnecessary or not properly ordered by a physician. Discovery on the relator's complaint closed in May 2015. Although the United States initially declined to intervene in the case, the government subsequently changed position. On April 3, 2017, the court allowed the government to intervene with respect only to certain hepatitis B surface antigen tests performed prior to 2011, when Medicare reimbursement rules for such tests changed. The court has subsequently rejected government requests to conduct new discovery and to add counts to its complaint-in-intervention that would expand upon the relator's complaint but has allowed FMCH to take discovery against the government as if the government had intervened at the outset. On June 14, 2019, the United States and FMCH reached agreement in principle on the financial term of a settlement that would result in dismissal with prejudice of all claims in the case, including the relator's complaint. FMCH also joined the United States in requesting a stay of litigation activity while they discuss other unresolved but necessary terms. There is no assurance that any final agreement will be reached with the United States and continued litigation remains a possibility. The settlement under discussion with the United States would leave unresolved a claim for attorney's fees by the relator Drennen. FMCH believes that, if settlement can be reached with the United States that is predicated on the tentatively agreed financial term, the entire matter will be resolved within the amount previously reserved by FMCH.

Beginning in 2012, the Company received certain communications alleging conduct in countries outside the United States that might violate the Foreign Corrupt Practices Act or other anti-bribery laws. The Company conducted investigations with the assistance of outside counsel and, in a continuing dialogue, advised the Securities and Exchange Commission and the United States Department of Justice (collectively and interchangeably the "government") about these investigations. The government also conducted its own investigations, in which the Company cooperated.

In the course of this dialogue, the Company identified and reported to the government, and took remedial actions including employee disciplinary actions with respect to, conduct that resulted in the government seeking monetary penalties including disgorgement of profits and other remedies. This conduct revolved principally around the Company's products business in countries outside the United States.

The Company recorded charges of €200,000 in 2017 and €77,200 in 2018 encompassing estimates for the government's claims for profit disgorgement, penalties, certain legal expenses, and other related costs or asset impairments believed likely to be necessary for full and final resolution, by litigation or settlement, of the claims and issues arising from the investigation. The increase recorded in 2018 took into consideration preliminary understandings with the government on the financial terms of a potential settlement. Following this increase, which takes into account incurred and anticipated legal expenses, impairments and other costs, the provision totals €223,980 as of December 31, 2018.

On March 29, 2019, the Company entered into a non-prosecution agreement with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the government's claims against the Company arising from the investigations. The Company agreed to pay a combined total in penalties and disgorgement of approximately $231,700 to the government in connection with these agreements. As part of the settlement, the Company further agreed to retain an independent compliance monitor for a period of two years and to an additional year of self-reporting. The Company continues to cooperate with government authorities in Germany in their review of the issues resolved in the U.S. settlement.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws. The Company continues to be fully committed to compliance with the Foreign Corrupt Practices Act and other applicable anti-bribery laws.

Personal injury litigation involving the FMCH's acid concentrate product, labeled as Granuflo® or Naturalyte®, first arose in 2012 and was substantially resolved by settlement agreed in principle in February 2016 and consummated in November 2017. Remaining individual personal injury cases do not present material risk.

FMCH's affected insurers agreed to the settlement of the acid concentrate personal injury litigation and funded $220,000 of the settlement fund under a reciprocal reservation of rights encompassing certain coverage issues raised by insurers and the FMCH's claims for indemnification of defense costs. The Company accrued a net expense of $60,000 in connection with the settlement, including legal fees and other anticipated costs. Following entry into the settlement, FMCH's insurers in the AIG group and FMCH each initiated litigation against the other relating to the AIG group's coverage obligations under applicable policies. In the coverage litigation, the AIG group seeks to be indemnified by FMCH for a portion of its $220,000 outlay; FMCH seeks to confirm the AIG group's $220,000 funding obligation, to recover defense costs already incurred by FMCH, and to compel the AIG group to honor defense and indemnification obligations required for resolution of cases not participating in the settlement. As a result of decisions on issues of venue, the coverage litigation is proceeding in the New York state trial court for Manhattan. (National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County)).

Four institutional plaintiffs filed complaints against FMCH or its affiliates under state deceptive practices statutes resting on certain background allegations common to the GranuFlo®/NaturaLyte® personal injury litigation but seeking as a remedy the repayment of sums paid to FMCH that are attributable to the GranuFlo®/NaturaLyte® products. These cases implicate different legal standards, theories of liability and forms of potential recovery from those in the personal injury litigation and their claims were not extinguished by the personal injury litigation settlement described above. All of the institutional cases have been resolved by settlement except for the claims by the State of Louisiana through its Attorney General and Blue Cross Blue Shield Louisiana, which remain active in the combined proceeding. State of Louisiana ex re. Caldwell and Louisiana Health Service & Indemnity Company v. Fresenius Medical Care Airline, et al 2016 Civ. 11035 (U.S.D.C. D. Mass.). The Caldwell and Blue Cross Louisiana cases remain unresolved and are proceeding together in federal court in Boston but are subject to undecided motions for severance and remand. There is no trial date in either case. FMCH has increased its litigation reserves to account for anticipated resolution of these claims. However, at the present time there are no agreements in principle for resolving either case and litigation through final adjudication may be required in them.

On September 6, 2018, a special-purpose entity organized under Delaware law for the purpose of pursuing litigation filed a Pure Bill of Discovery in a Florida county court seeking discovery from FMCH related to the personal injury settlement, but no other relief. MSP Recovery Claims Series LLC v. Fresenius Medical Care Holdings, No. 2018-030366-CA-01 (11th Judicial Circuit, Dade County, Florida). The Pure Bill was thereafter removed to federal court and transferred into the multidistrict Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation in Boston. No.1:13-MD-02428-DPW (D. Mass. 2013). On March 12, 2019, plaintiff amended its Pure Bill by filing a complaint claiming rights to recover monetary damages on behalf of various persons and entities who are alleged to have assigned to plaintiff their rights to recover monetary damages arising from their having provided or paid for medical services for dialysis patients receiving treatments using FMCH's acid concentrate product. FMCH is responding to the amended complaint.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

In August 2014, FMCH received a subpoena from the United States Attorney for the District of Maryland inquiring into FMCH's contractual arrangements with hospitals and physicians involving contracts relating to the management of in-patient acute dialysis services. FMCH has cooperated in the investigation.

In July 2015, the Attorney General for Hawaii issued a civil complaint under the Hawaii False Claims Act alleging a conspiracy pursuant to which certain Liberty Dialysis subsidiaries of FMCH overbilled Hawaii Medicaid for Liberty's Epogen® administrations to Hawaii Medicaid patients during the period from 2006 through 2010, prior to the time of FMCH's acquisition of Liberty. Hawaii v. Liberty Dialysis—Hawaii, LLC et al., Case No. 15-1-1357-07 (Hawaii 1st Circuit). The State alleges that Liberty acted unlawfully by relying on incorrect and unauthorized billing guidance provided to Liberty by Xerox State Healthcare LLC, which acted as Hawaii's contracted administrator for its Medicaid program reimbursement operations during the relevant period. The amount of the overpayment claimed by the State is approximately $8,000, but the State seeks civil remedies, interest, fines, and penalties against Liberty and FMCH under the Hawaii False Claims Act substantially in excess of the overpayment. After prevailing on motions by Xerox to preclude it from doing so, FMCH is pursuing third-party claims for contribution and indemnification against Xerox. The State's False Claims Act complaint was filed after Liberty initiated an administrative action challenging the State's recoupment of alleged overpayments from sums currently owed to Liberty. The civil litigation and administrative action are proceeding in parallel. Trial in the civil litigation is scheduled for April 2020.

On August 31, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) inquiring into FMCH's participation in and management of dialysis facility joint ventures in which physicians are partners. FMCH continues to cooperate in the Denver United States Attorney's Office ("USAO") investigation, which has come to focus on purchases and sales of minority interests in ongoing outpatient facilities between FMCH and physician groups.

On November 25, 2015, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) also inquiring into FMCH's involvement in certain dialysis facility joint ventures in New York. On September 26, 2018, the Brooklyn USAO declined to intervene on the qui tam complaint filed under seal in 2014 that gave rise to this investigation. CKD Project LLC v. Fresenius Medical Care, 2014 Civ. 6646 (E.D.N.Y. November 12, 2014). The court unsealed the complaint, allowing the relator to serve and proceed on its own. The relator—a special-purpose entity formed by law firms to pursue qui tam proceedings—has served its complaint and litigation is proceeding.

Beginning October 6, 2015, the United States Attorney for the Eastern District of New York (Brooklyn) has led an investigation, through subpoenas issued under the False Claims Act, utilization and invoicing by FMCH's subsidiary Azura Vascular Care for a period beginning after FMCH's acquisition of American Access Care LLC ("AAC") in October 2011. FMCH is cooperating in the Brooklyn USAO investigation. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

On June 30, 2016, FMCH received a subpoena from the United States Attorney for the Northern District of Texas (Dallas) seeking information under the False Claims Act about the use and management of pharmaceuticals including Velphoro®. The investigation encompasses DaVita, Amgen, Sanofi, and other pharmaceutical manufacturers and includes inquiries into whether certain compensation transfers between manufacturers and pharmacy vendors constituted unlawful kickbacks. FMCH understands that this investigation is substantively independent of the $63,700 settlement by DaVita Rx announced on December 14, 2017 in the matter styled United States ex rel. Gallian v. DaVita Rx, 2016 Civ. 0943 (N.D. Tex.). FMCH has cooperated in the investigation.

On November 18, 2016, FMCH received a subpoena under the False Claims Act from the United States Attorney for the Eastern District of New York (Brooklyn) seeking documents and information relating to the operations of Shiel Medical Laboratory, Inc., which FMCH acquired in October 2013. In the course of

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

cooperating in the investigation and preparing to respond to the subpoena, FMCH identified falsifications and misrepresentations in documents submitted by a Shiel salesperson that relate to the integrity of certain invoices submitted by Shiel for laboratory testing for patients in long term care facilities. On February 21, 2017, FMCH terminated the employee and notified the United States Attorney of the termination and its circumstances. The terminated employee's conduct is expected to result in demands for FMCH to refund overpayments and to pay related penalties under applicable laws, but the monetary value of such payment demands cannot yet be reasonably estimated. FMCH contends that, under the asset sale provisions of its 2013 Shiel acquisition, it is not responsible for misconduct by the terminated employee or other Shiel employees prior to the date of the acquisition. The Brooklyn USAO continues to investigate a range of issues involving Shiel, including allegations of improper compensation (kickbacks) to physicians, and has disclosed that multiple sealed qui tam complaints underlie the investigation.

On December 12, 2017, FMCH sold to Quest Diagnostics certain Shiel operations that are the subject of this Brooklyn subpoena, including the misconduct reported to the United States Attorney. Under the Quest Diagnostics sale agreement, FMCH retains responsibility for responding to the Brooklyn investigation and for liabilities arising from conduct occurring after its 2013 acquisition of Shiel and prior to its sale of Shiel to Quest Diagnostics. FMCH is cooperating in the investigation.

On December 14, 2016, the Center for Medicare & Medicaid Services ("CMS"), which administers the federal Medicare program, published an Interim Final Rule ("IFR") titled "Medicare Program; Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payment." The IFR would have amended the Conditions for Coverage for dialysis providers, like FMCH and would have effectively enabled insurers to reject premium payments made by or on behalf of patients who received grants for individual market coverage from the American Kidney Fund ("AKF" or "the Fund"). The IFR could thus have resulted in those patients losing individual insurance market coverage. The loss of coverage for these patients would have had a material and adverse impact on the operating results of FMCH.

On January 25, 2017, a federal district court in Texas responsible for litigation initiated by a patient advocacy group and dialysis providers including FMCH preliminarily enjoined CMS from implementing the IFR. Dialysis Patient Citizens v. Burwell, 2017 Civ. 0016 (E.D. Texas, Sherman Div.). The preliminary injunction was based on CMS' failure to follow appropriate notice-and-comment procedures in adopting the IFR. The injunction remains in place and the court retains jurisdiction over the dispute.

On June 22, 2017, CMS requested a stay of proceedings in the litigation pending further rulemaking concerning the IFR. CMS stated, in support of its request, that it expects to publish a Notice of Proposed Rulemaking in the Federal Register and otherwise pursue a notice-and-comment process. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court on June 27, 2017.

On January 3, 2017, FMCH received a subpoena from the United States Attorney for the District of Massachusetts under the False Claims Act inquiring into FMCH's interactions and relationships with the AKF, including FMCH's charitable contributions to the Fund and the Fund's financial assistance to patients for insurance premiums. FMCH is cooperating in the investigation, which is part of a broader investigation into charitable contributions in the medical industry. FMCH believes that the investigation revolves around conduct alleged to be unlawful in United Healthcare v. American Renal Associates, 2018 Civ. 10622 (D. Mass.), but believes that such unlawful conduct was not undertaken by FMCH. On July 2, 2018, American Renal Associates announced that it had reached a settlement in principle of the United Healthcare litigation. FMCH lacks information necessary to assess how the American Renal Associates settlement may impact the United States Attorney's investigation.

On April 8, 2019, United Healthcare served a demand for arbitration against FMCH. The demand asserts that FMCH unlawfully "steered" patients by waiving co-payments and other means away from coverage under government-funded insurance plans including Medicare into United Healthcare's commercial plans,

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

including Affordable Care Act exchange plans. FMCH is contesting United Healthcare's claims and demands. A final hearing date has been scheduled in the arbitration for September 2020.

In early May 2017, the United States Attorney for the Middle District of Tennessee (Nashville) issued identical subpoenas to FMCH and two subsidiaries under the False Claims Act concerning FMCH's retail pharmaceutical business. The investigation is exploring allegations related to improper inducements to dialysis patients to fill oral prescriptions through FMCH's pharmacy service, improper billing for returned pharmacy products and other allegations similar to those underlying the $63,700 settlement by DaVita Rx in Texas announced on December 14, 2017. United States ex rel. Gallian, 2016 Civ. 0943 (N.D. Tex.). FMCH is cooperating in the investigation.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, "VFMCRP") (the joint venture between Vifor Pharma and FMC-AG & Co. KGaA), filed a complaint for patent infringement against Lupin Atlantis Holdings SA and Lupin Pharmaceuticals Inc. (collectively, "Lupin"), and Teva Pharmaceuticals USA, Inc. ("Teva") in the U.S. District Court for the District of Delaware (Case 1:18-cv-00390-LPS). The patent infringement action is in response to Lupin and Teva's filings of Abbreviated New Drug Applications (ANDA) with the FDA for generic versions of Velphoro®. Velphoro® is protected by patents listed in the FDA's Approved Drug Products with Therapeutic Equivalence Evaluations, also known as the Orange Book. The complaint was filed within the 45-day period provided for under the Hatch-Waxman legislation, and triggered a stay of FDA approval of the ANDAs for 30 months (2.5 years) (specifically, up to July 29, 2020 for Lupin's ANDA; and August 6, 2020 for Teva's ANDA), or a shorter time if a decision in the infringement suit is reached that the patents-at-issue are invalid or not infringed. Recently, in response to another ANDA being filed for a generic Velphoro®, VFMCRP filed a complaint for patent infringement against Annora Pharma Private Ltd., and Hetero Labs Ltd. (collectively, "Annora"), in the U.S. District Court for the District of Delaware on December 17, 2018. A 30-month stay of FDA approval of Annora's ANDA will run through to May 30, 2021.

On December 17, 2018, FMCH was served with a subpoena under the False Claims Act from the United States Attorney for the District of Colorado (Denver) as part of an investigation of allegations against DaVita, Inc. involving transactions between FMCH and DaVita. The subject transactions include sales and purchases of dialysis facilities, dialysis-related products and pharmaceuticals, including dialysis machines and dialyzers, and contracts for certain administrative services. FMCH is cooperating in the investigation.

On June 28, 2019, certain FMCH subsidiaries filed a complaint against the United States seeking to recover monies owed to them by the United States Department of Defense under the Tricare program, and to preclude Tricare from recouping monies previously paid. Bio-Medical Applications of Georgia, Inc., et al. v. United States, CA 19-947, United States Court of Federal Claims. Tricare provides reimbursement for dialysis treatments and other medical care provided to members of the military services, their dependents and retirees. The litigation challenges unpublished administrative actions by Tricare administrators reducing the rate of compensation paid for dialysis treatments provided to Tricare beneficiaries based on a recasting or "crosswalking" of codes used and followed in invoicing without objection for many years. Tricare administrators have acknowledged the unpublished administrative action and declined to change or abandon it but have not articulated a defense of the action. The United States has not yet been required to respond to the complaint and will not be required to do so before August 27, 2019. FMCH has imposed a constraint on revenue otherwise recognized from the Tricare program that it believes, in consideration of facts currently known, sufficient to account for the possibility of not prevailing in the litigation.

From time to time, the Company is a party to or may be threatened with other litigation or arbitration, claims or assessments arising in the ordinary course of its business. Management regularly analyzes current information including, as applicable, the Company's defenses and insurance coverage and, as necessary, provides accruals for probable liabilities for the eventual disposition of these matters.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

The Company, like other healthcare providers, insurance plans and suppliers, conducts its operations under intense government regulation and scrutiny. It must comply with regulations which relate to or govern the safety and efficacy of medical products and supplies, the marketing and distribution of such products, the operation of manufacturing facilities, laboratories, dialysis clinics and other health care facilities, and environmental and occupational health and safety. With respect to its development, manufacture, marketing and distribution of medical products, if such compliance is not maintained, the Company could be subject to significant adverse regulatory actions by the U.S. Food and Drug Administration ("FDA") and comparable regulatory authorities outside the U.S. These regulatory actions could include warning letters or other enforcement notices from the FDA, and/or comparable foreign regulatory authority which may require the Company to expend significant time and resources in order to implement appropriate corrective actions. If the Company does not address matters raised in warning letters or other enforcement notices to the satisfaction of the FDA and/or comparable regulatory authorities outside the U.S., these regulatory authorities could take additional actions, including product recalls, injunctions against the distribution of products or operation of manufacturing plants, civil penalties, seizures of the Company's products and/or criminal prosecution. FMCH is currently engaged in remediation efforts with respect to one pending FDA warning letter. The Company must also comply with the laws of the United States, including the federal Anti-Kickback Statute, the federal False Claims Act, the federal Stark Law, the federal Civil Monetary Penalties Law and the federal Foreign Corrupt Practices Act as well as other federal and state fraud and abuse laws. Applicable laws or regulations may be amended, or enforcement agencies or courts may make interpretations that differ from the Company's interpretations or the manner in which it conducts its business. Enforcement has become a high priority for the federal government and some states. In addition, the provisions of the False Claims Act authorizing payment of a portion of any recovery to the party bringing the suit encourage private plaintiffs to commence whistleblower actions. By virtue of this regulatory environment, the Company's business activities and practices are subject to extensive review by regulatory authorities and private parties, and continuing audits, subpoenas, other inquiries, claims and litigation relating to the Company's compliance with applicable laws and regulations. The Company may not always be aware that an inquiry or action has begun, particularly in the case of whistleblower actions, which are initially filed under court seal.

The Company operates many facilities and handles the personal data ("PD") of its patients and beneficiaries throughout the United States and other parts of the world, and engages with other business associates to help it carry out its health care activities. In such a decentralized system, it is often difficult to maintain the desired level of oversight and control over the thousands of individuals employed by many affiliated companies and its business associates. On occasion, the Company or its business associates may experience a breach under the Health Insurance Portability and Accountability Act Privacy Rule and Security Rules, the EU's General Data Protection Regulation and or other similar laws ("Data Protection Laws") when there has been impermissible use, access, or disclosure of unsecured PD or when the Company or its business associates neglect to implement the required administrative, technical and physical safeguards of its electronic systems and devices, or a data breach that results in impermissible use, access or disclosure of personal identifying information of its employees, patients and beneficiaries. On those occasions, the Company must comply with applicable breach notification requirements.

The Company relies upon its management structure, regulatory and legal resources, and the effective operation of its compliance program to direct, manage and monitor the activities of its employees. On occasion, the Company may identify instances where employees or other agents deliberately, recklessly or inadvertently contravene the Company's policies or violate applicable law. The actions of such persons may subject the Company and its subsidiaries to liability under the Anti-Kickback Statute, the Stark Law, the False Claims Act, Data Protection Laws, the Health Information Technology for Economic and Clinical Health Act and the Foreign Corrupt Practices Act, among other laws and comparable state laws or laws of other countries.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

12. Commitments and contingencies (Continued)

Physicians, hospitals and other participants in the healthcare industry are also subject to a large number of lawsuits alleging professional negligence, malpractice, product liability, worker's compensation or related claims, many of which involve large claims and significant defense costs. The Company has been and is currently subject to these suits due to the nature of its business and expects that those types of lawsuits may continue. Although the Company maintains insurance at a level which it believes to be prudent, it cannot assure that the coverage limits will be adequate or that insurance will cover all asserted claims. A successful claim against the Company or any of its subsidiaries in excess of insurance coverage could have a material adverse effect upon it and the results of its operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.

The Company has also had claims asserted against it and has had lawsuits filed against it relating to alleged patent infringements or businesses that it has acquired or divested. These claims and suits relate both to operation of the businesses and to the acquisition and divestiture transactions. The Company has, when appropriate, asserted its own claims, and claims for indemnification. A successful claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition, and the results of its operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.

In Germany, the tax audits for the years 2006 through 2009 have been substantially completed. The German tax authorities have indicated a re-qualification of dividends received in connection with intercompany mandatorily redeemable preferred shares into fully taxable interest payments for these and subsequent years until 2013. The Company has defended its position and will avail itself of appropriate remedies. An adverse determination with respect to fully taxable interest payments related to intercompany mandatorily redeemable preferred shares and the disallowance of certain other tax deductions could have a material adverse effect on the Company's financial condition and results of operations.

The Company is also subject to ongoing and future tax audits in the U.S., Germany and other jurisdictions in the ordinary course of business. Tax authorities routinely pursue adjustments to the Company's tax returns and disallowances of claimed tax deductions. When appropriate, the Company defends these adjustments and disallowances and asserts its own claims. A successful tax related claim against the Company or any of its subsidiaries could have a material adverse effect upon its business, financial condition and results of operations. Any claims, regardless of their merit or eventual outcome, could have a material adverse effect on the Company's reputation and business.

Other than those individual contingent liabilities mentioned above, the current estimated amount of the Company's other known individual contingent liabilities is immaterial.

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Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

13. Financial instruments

The following tables show the carrying amounts and fair values of the Company's financial instruments at June 30, 2019 and December 31, 2018:

Carrying amount and fair value of financial instruments

in € THOUS
 
  Carrying amount   Fair value  
June 30, 2019
  Amortized
cost
  FVPL   FVOCI   Not
classified
  Total   Level 1   Level 2   Level 3  

Cash and cash equivalents (1)

    776,682     145,420             922,102         145,420      

Trade accounts and other receivables

    3,509,902             70,378     3,580,280              

Accounts receivable from related parties

    74,435                 74,435              

Derivatives - cash flow hedging instruments

                799     799         799      

Derivatives - not designated as hedging instruments

        18,150             18,150         18,150      

Equity investments

        112,420     32,273         144,693     11,747     132,946      

Debt securities

        96,823     266,809         363,632     359,225     4,407      

Other financial assets

    119,286             106,227     225,513              

Other current and non-current assets

    119,286     227,393     299,082     107,026     752,787              

Financial assets

    4,480,305     372,813     299,082     177,404     5,329,604              

Accounts payable

    680,235                 680,235              

Accounts payable to related parties

    155,999                 155,999              

Short-term debt and short-term debt from related parties

    1,434,831                 1,434,831              

Long-term debt

    7,431,422                 7,431,422     4,747,246     2,894,738      

Long-term lease liabilities and long-term lease liabilities from related parties

                4,543,310     4,543,310              

Derivatives - cash flow hedging instruments

                4,045     4,045         4,045      

Derivatives - not designated as hedging instruments

        19,694             19,694         19,694      

Variable payments outstanding for acquisitions

        121,266             121,266             121,266  

Noncontrolling interest subject to put provisions

                841,002     841,002             841,002  

Other financial liabilities

    1,455,998                 1,455,998              

Other current and non-current liabilities

    1,455,998     140,960         845,047     2,442,005              

Financial liabilities

    11,158,485     140,960         5,388,357     16,687,802              

(1)
Highly liquid short-term investments are categorized in level 2 of the fair value hierarchy. Other cash and cash equivalents is not categorized.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

13. Financial instruments (Continued)

 

Carrying amount and fair value of financial instruments

in € THOUS

 

 
  Carrying amount   Fair value  
December 31, 2018
  Amortized
cost
  FVPL   FVOCI   Not
classified
  Total   Level 1   Level 2   Level 3  

Cash and cash equivalents (1)

    831,885     1,313,747             2,145,632         1,313,747      

Trade accounts and other receivables

    3,288,258             49,448     3,337,706              

Accounts receivable from related parties

    92,662                 92,662              

Derivatives - cash flow hedging instruments

                1,492     1,492         1,492      

Derivatives - not designated as hedging instruments

        18,222             18,222         18,222      

Equity investments

        106,350     34,377         140,727     13,869     126,858      

Debt securities

        83,213     250,822         334,035     329,821     4,214      

Other financial assets

    144,838             107,125     251,963              

Other current and non-current assets

    144,838     207,785     285,199     108,617     746,439              

Financial assets

    4,357,643     1,521,532     285,199     158,065     6,322,439              

                                           

Accounts payable

    641,271                 641,271              

Accounts payable to related parties

    153,781                 153,781              

Short-term debt and short-term debt from related parties

    1,394,194                 1,394,194              

Long-term debt and capital lease obligations

    6,115,890             36,144     6,152,034     4,227,684     2,022,057      

Derivatives - cash flow hedging instruments

                1,125     1,125         1,125      

Derivatives - not designated as hedging instruments

        18,911             18,911         18,911      

Variable payments outstanding for acquisitions

        172,278             172,278             172,278  

Noncontrolling interest subject to put provisions

                818,871     818,871             818,871  

Other financial liabilities

    1,467,767                 1,467,767              

Other current and non-current liabilities

    1,467,767     191,189         819,996     2,478,952              

Financial liabilities

    9,772,903     191,189         856,140     10,820,232              

(1)
Highly liquid short-term investments are categorized in level 2 of the fair value hierarchy. Other cash and cash equivalents is not categorized.

Derivative and non-derivative financial instruments are categorised in the following three-tier fair value hierarchy that reflects the significance of the inputs in making the measurements. Level 1 is defined as observable inputs, such as quoted prices in active markets. Level 2 is defined as inputs other than quoted prices in active markets that are directly or indirectly observable. Level 3 is defined as unobservable inputs for which little or no market data exists, therefore requiring the Company to develop its own assumptions. Fair value information is not provided for lease liabilities and for financial instruments, if the carrying amount is a reasonable estimate of fair value due to the relatively short period of maturity of these instruments. Transfers between levels of the fair value hierarchy have not occurred as of June 30, 2019 and December 31, 2018. The Company accounts for possible transfers at the end of the reporting period.

Derivative financial instruments

In order to manage the risk of currency exchange rate fluctuations and interest rate fluctuations, the Company enters into various hedging transactions by means of derivative instruments with highly rated financial institutions. The Company primarily enters into foreign exchange forward contracts and interest rate swaps. Derivative contracts that do not qualify for hedge accounting are utilized for economic

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

13. Financial instruments (Continued)

purposes. The Company does not use financial instruments for trading purposes. Additionally, the Company purchased share options in connection with the issuance of the Convertible Bonds. Any change in the Company's share price above the conversion price would be offset by a corresponding value change in the share options.

Non-derivative financial instruments

The significant methods and assumptions used for the classification and measurement of non-derivative financial instruments are as follows:

The Company assessed its business models and the cash flow characteristics of its financial assets. The vast majority of the non-derivative financial assets are held in order to collect the contractual cash flows. The contractual terms of the financial assets allow the conclusion that the cash flows represent payment of principle and interest only. Trade accounts and other receivables, Accounts receivable from related parties and Other financial assets are consequently measured at amortized cost.

Cash and cash equivalents are comprised of cash funds and other short-term investments. Cash funds are measured at amortized cost. Short-term investments are highly liquid and readily convertible to known amounts of cash. Short-term investments are measured at FVPL. The risk of changes in fair value is insignificant.

Equity investments are not held for trading. At initial recognition the Company elected, on an instrument-by-instrument basis, to represent subsequent changes in the fair value of individual strategic investments in OCI. If equity instruments are quoted in an active market, the fair value is based on price quotations at the period-end-date.

The majority of the debt securities are held within a business model whose objective is achieving both contractual cash flows and sell the securities. The standard coupon bonds give rise on specified dates to cash flows that are solely payments of principal and interest on the outstanding principal amount. Subsequently these financial assets have been classified as FVOCI. The smaller part of debt securities do not give rise to cash flows that are solely payments of principle and interest. Consequently, these securities are measured at FVPL. In general most of the debt securities are quoted in an active market.

Long-term debt is recognized at its carrying amount. The fair values of major long-term debt are calculated on the basis of market information. Liabilities for which market quotes are available are measured using these quotes. The fair values of the other long-term debt are calculated at the present value of the respective future cash flows. To determine these present values, the prevailing interest rates and credit spreads for the Company as of the balance sheet date are used.

Variable payments outstanding for acquisitions are recognized at their fair value. The estimation of the individual fair values is based on the key inputs of the arrangement that determine the future contingent payment as well as the Company's expectation of these factors. The Company assesses the likelihood and timing of achieving the relevant objectives. The underlying assumptions are reviewed regularly.

Noncontrolling interests subject to put provisions are recognized at their fair value. The methodology the Company uses to estimate the fair values assumes the greater of net book value or a multiple of earnings, based on historical earnings, development stage of the underlying business and other factors. From time to time the Company engages external valuation firms for the valuation of the put provisions. The external valuation estimates the fair values using a combination of discounted cash flows and a multiple of earnings and/or revenue. When applicable, the obligations are discounted at a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the liability. The estimated fair values of the noncontrolling interests subject to these put provisions can also fluctuate, and the discounted cash flows as well as the implicit multiple of earnings and/or revenue at which these

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

13. Financial instruments (Continued)

noncontrolling interest obligations may ultimately be settled could vary significantly from the Company's current estimates depending upon market conditions.

Following is a roll forward of variable payments outstanding for acquisitions and noncontrolling interests subject to put provisions at June 30, 2019 and December 31, 2018:

Reconciliation from beginning to ending balance of level 3 financial instruments

in € THOUS

 

 
  2019   2018  
 
  Variable
payments
outstanding for
acquisitions
  Noncontrolling
interests
subject
to put provisions
  Variable
payments
outstanding for
acquisitions
  Noncontrolling
interests
subject
to put provisions
 

Beginning balance at January 1,

    172,278     818,871     205,792     830,773  

Increase

    2,931     37,598     19,051     53,731  

Decrease

    (20,549 )   (10,385 )   (15,734 )   (50,706 )

(Gain) loss recognized in profit or loss

    (34,673 )   71,803     (36,327 )   142,279  

(Gain) loss recognized in equity

        (23,547 )       (50,612 )

Dividends

        (62,962 )       (139,742 )

Foreign currency translation and other changes

    1,279     9,624     (504 )   33,148  

Ending balance at June 30, and December 31,

    121,266     841,002     172,278     818,871  

14. Segment and corporate information

The Company's operating segments are the North America Segment, the EMEA Segment, the Asia-Pacific Segment and the Latin America Segment. The operating segments are determined based upon how the Company manages its businesses with geographical responsibilities. All segments are primarily engaged in providing health care services and the distribution of products and equipment for the treatment of ESRD and other extracorporeal therapies.

Management evaluates each segment using measures that reflect all of the segment's controllable revenues and expenses. With respect to the performance of business operations, management believes that the most appropriate measures are revenue, operating income and operating income margin. The Company does not include income taxes as it believes this is outside the segments' control. Financing is a corporate function, which the Company's segments do not control. Therefore, the Company does not include interest expense relating to financing as a segment measurement. Similarly, the Company does not allocate certain costs, which relate primarily to certain headquarters' overhead charges, including accounting and finance, because the Company believes that these costs are also not within the control of the individual segments. Production of products, production asset management, quality and supply chain management as well as procurement related to production are centrally managed at Corporate. The Company's global research and development is also centrally managed at Corporate. These corporate activities do not fulfill the definition of a segment according to IFRS 8, Operating Segments. Products are transferred to the segments at cost; therefore, no internal profit is generated. The associated internal revenue for the product transfers and their elimination are recorded as corporate activities. Capital expenditures for production are based on the expected demand of the segments and consolidated profitability considerations. In addition, certain revenues, investments and intangible assets, as well as any related expenses, are not allocated to a segment but are accounted for as Corporate.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

14. Segment and corporate information (Continued)

Information pertaining to the Company's segment and Corporate activities for the three- and six-month periods ended June 30, 2019 and 2018 is set forth below:

Segment and corporate information

in € THOUS

 

 
  North
America
Segment
  EMEA
Segment
  Asia-
Pacific
Segment
  Latin
America
Segment
  Segment
Total
  Corporate   Total  

Three months ended June 30, 2019

                                           

Revenue from contracts with customers

    3,000,624     639,324     439,091     171,511     4,250,550     5,392     4,255,942  

Other revenue external customers

    60,470     8,856     18,907     857     89,090         89,090  

Revenue external customers

    3,061,094     648,180     457,998     172,368     4,339,640     5,392     4,345,032  

Inter-segment revenue

    399     (1 )   222     17     637     (637 )    

Revenue

    3,061,493     648,179     458,220     172,385     4,340,277     4,755     4,345,032  

Operating income

    428,880     96,389     69,357     5,887     600,513     (79,256 )   521,257  

Interest

                                        114,355  

Income before income taxes

                                        406,902  

Depreciation and amortization

    (249,451 )   (47,372 )   (22,829 )   (7,668 )   (327,320 )   (59,681 )   (387,001 )

Income (loss) from equity method investees

    24,467     (3,204 )   856     362     22,481         22,481  

Additions of property, plant and equipment, intangible assets and right of use assets

    302,901     38,030     32,175     14,023     387,129     80,078     467,207  

Three months ended June 30, 2018

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Revenue from contracts with customers

    2,919,567     643,992     405,391     162,914     4,131,864     4,108     4,135,972  

Other revenue external customers

    51,733     8,320     16,828     852     77,733         77,733  

Revenue external customers

    2,971,300     652,312     422,219     163,766     4,209,597     4,108     4,213,705  

Inter-segment revenue

    830         131     12     973     (973 )    

Revenue

    2,972,130     652,312     422,350     163,778     4,210,570     3,135     4,213,705  

Operating income

    1,285,973     104,923     77,851     11,169     1,479,916     (78,817 )   1,401,099  

Interest

                                        (84,708 )

Income before income taxes

                                        1,316,391  

Depreciation and amortization

    (94,992 )   (28,417 )   (10,987 )   (5,849 )   (140,245 )   (39,997 )   (180,242 )

Income (loss) from equity method investees

    18,860     (3,381 )   759     285     16,523         16,523  

Additions of property, plant and equipment and intangible assets

    172,838     35,571     13,382     7,632     229,423     53,387     282,810  

Six months ended June 30, 2019

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Revenue from contracts with customers

    5,826,836     1,275,124     850,694     332,112     8,284,766     9,560     8,294,326  

Other revenue external customers

    121,034     25,669     34,878     1,682     183,263         183,263  

Revenue external customers

    5,947,870     1,300,793     885,572     333,794     8,468,029     9,560     8,477,589  

Inter-segment revenue

    975         456     82     1,513     (1,513 )    

Revenue

    5,948,845     1,300,793     886,028     333,876     8,469,542     8,047     8,477,589  

Operating income

    801,274     234,165     164,059     17,282     1,216,780     (158,973 )   1,057,807  

Interest

                                        222,203  

Income before income taxes

                                        835,604  

Depreciation and amortization

    (478,186 )   (94,345 )   (45,430 )   (16,031 )   (633,992 )   (115,385 )   (749,377 )

Income (loss) from equity method investees

    45,829     (4,521 )   562     644     42,514         42,514  

Total assets

    21,436,560     4,240,496     2,688,054     870,927     29,236,037     2,719,964     31,956,001  

thereof investments in equity method investees

    357,756     174,557     97,487     24,322     654,122         654,122  

Additions of property, plant and equipment, intangible assets and right of use assets

    491,051     85,144     45,918     28,806     650,919     153,565     804,484  

Six months ended June 30, 2018

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Revenue from contracts with customers

    5,639,194     1,275,216     786,192     332,254     8,032,856     7,751     8,040,607  

Other revenue external customers

    106,568     12,904     27,489     1,766     148,727         148,727  

Revenue external customers

    5,745,762     1,288,120     813,681     334,020     8,181,583     7,751     8,189,334  

Inter-segment revenue

    1,230     303     318     51     1,902     (1,902 )    

Revenue

    5,746,992     1,288,423     813,999     334,071     8,183,485     5,849     8,189,334  

Operating income

    1,648,181     213,857     152,071     25,283     2,039,392     (141,417 )   1,897,975  

Interest

                                        (167,641 )

Income before income taxes

                                        1,730,334  

Depreciation and amortization

    (185,647 )   (57,278 )   (22,146 )   (10,429 )   (275,500 )   (79,736 )   (355,236 )

Income (loss) from equity method investees

    37,661     (4,715 )   1,094     387     34,427         34,427  

Total assets

    16,542,759     3,677,443     2,189,363     684,928     23,094,493     1,950,435     25,044,928  

thereof investments in equity method investees

    313,190     178,568     97,718     24,194     613,670         613,670  

Additions of property, plant and equipment and intangible assets

    314,659     65,976     23,416     11,428     415,479     98,501     513,980  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements (Continued)

(unaudited)

(in THOUS, except share and per share data)

15. Supplementary cash flow information

The following additional information is provided with respect to net cash provided by (used in) investing activities:

Details for net cash provided by (used in) investing activities

in € THOUS

 

 
  For the six months
ended June 30,
 
 
  2019   2018  

Details for acquisitions

             

Assets acquired

    (2,224,752 )   (116,628 )

Liabilities assumed

    232,886     5,541  

Noncontrolling interests subject to put provisions

    18,148      

Noncontrolling interests

    30,427     43,526  

Non-cash consideration

    15,342     5,814  

Cash paid

    (1,927,949 )   (61,747 )

Less cash acquired

    44,158     2,002  

Net cash paid for acquisitions

    (1,883,791 )   (59,745 )

Cash paid for investments

    (14,793 )   (245,006 )

Cash paid for intangible assets

    (24,161 )   (40,793 )

Total cash paid for acquisitions and investments, net of cash acquired, and purchases of intangible assets

    (1,922,745 )   (345,544 )

Details for divestitures

             

Cash received from sale of subsidiaries or other businesses, less cash disposed

   
17,299
   
1,662,298
 

Cash received from divestitures of securities

    5,673     83  

Cash received from repayment of loans

        77  

Proceeds from divestitures

    22,972     1,662,458  

Acquisitions of the last twelve months decreased net income (net income attributable to shareholders of FMC-AG & Co. KGaA) for the six months ended June 30, 2019 by €47,180 (excluding the costs of the acquisitions).

16. Events occurring after the balance sheet date

No significant activities have taken place subsequent to the balance sheet date June 30, 2019 that have a material impact on the key figures and earnings presented. Currently, there are no other significant changes in the Company's structure, management, legal form or personnel.

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Quantitative and qualitative disclosures about market risk

The information in note 13 of the notes to consolidated financial statements (unaudited), presented elsewhere in this report is incorporated by this reference.

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Controls and procedures

The Company is a "foreign private issuer" within the meaning of Rule 3b-4(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). As such, the Company is not required to file quarterly reports with the Securities and Exchange Commission and is required to provide an evaluation of the effectiveness of its disclosure controls and procedures, to disclose significant changes in its internal control over financial reporting and to provide certifications of its Chief Executive Officer and Chief Financial Officer under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 only in its Annual Report on Form 20-F. The Company furnishes quarterly financial information to the Securities and Exchange Commission (the "Commission") and such certifications under cover of Form 6-K on a voluntary basis and pursuant to the provisions of the Company's pooling agreement entered into for the benefit of the public holders of our shares. In connection with such voluntary reporting, the Company's management, including the Chief Executive Officer and the Chief Financial Officer of the Company's General Partner, has conducted an evaluation of the effectiveness of the Company's disclosure controls and procedures as of the end of the period covered by this report, of the type contemplated by Securities Exchange Act Rule 13a-15. Based on that evaluation, the Chief Executive Officer and the Chief Financial Officer concluded in connection with the furnishing of this report, that the Company's disclosure controls and procedures are designed to ensure that the information the Company is required to disclose in the reports filed or furnished under the Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms and are effective to ensure that the information the Company is required to disclose in its reports is accumulated and communicated to the General Partner's Management Board, including the General Partner's Chief Executive Officer and the Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. During the past fiscal quarter, there have been no significant changes in internal controls, or in factors that could significantly affect internal controls.

On March 29, 2019, the Company entered into a non-prosecution agreement with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the government's claims against the Company arising from the investigations, see note 12 of the notes to the consolidated financial statements (unaudited) presented elsewhere in this Report. The Company continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws. The Company continues to be fully committed to compliance with the Foreign Corrupt Practices Act and other applicable anti-bribery laws.

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OTHER INFORMATION

Legal proceedings

The information in note 12 of the notes to consolidated financial statements (unaudited), presented elsewhere in this report is incorporated by this reference.


Submission of Matters to a Vote of Security Holders

The Company held its Annual General Meeting ("AGM") in Frankfurt, Germany on May 16, 2019. Shareholder representation at the AGM was as follows:

At the time of voting on the agenda items 1 to 6, 236,108,177 no-par-value shares with the same number of votes were represented at the Annual General Meeting. This corresponds to 76.68% of the nominal capital entitled to vote.

The six resolutions proposed for action by the ordinary shareholders at the AGM and the voting results thereon are as follows:

 
   
  Votes (in percentage of shares actually voting)  
 
  Resolution   In Favor   Opposed  
TOPIC 1   Resolution on the approval of the annual financial statements of Fresenius Medical Care AG & Co. KGaA for fiscal year 2018     99.29 %   0.71 %

TOPIC 2

 

Resolution on the allocation of distributable profit

 

 

89.78

%

 

10.22

%

TOPIC 3

 

Resolution on the approval of the actions of the General Partner for fiscal year 2018

 

 

56.81

%

 

43.19

%

TOPIC 4

 

Resolution on the approval of the actions of the Supervisory Board for fiscal year 2018

 

 

52.32

%

 

47.68

%

TOPIC 5a

 

Election of KPMG AG Wirtschaftsprüfungsgesellschaft, Berlin, as auditor and consolidated group auditor for fiscal year 2019 and as auditor for the potential review of the first half year financial report and other interim financial information for fiscal year 2019

 

 

89.90

%

 

10.10

%

TOPIC 5b

 

Election of PricewaterhouseCoopers GmbH Wirtschaftsprüfungsgesellschaft, Frankfurt am Main, as auditor for the potential review of interim financial information for fiscal year 2020 that is prepared prior to the Annual General Meeting 2020

 

 

99.65

%

 

0.35

%

TOPIC 6a

 

Election of Prof. Dr. Gregor Zünd to the Supervisory Board

 

 

98.86

%

 

1.14

%

TOPIC 6b

 

Election of Dr. Dorothea Wenzel to the Supervisory Board

 

 

99.97

%

 

0.03

%

79


Table of Contents


Exhibits

Exhibit No.
   
  10.1   Indenture dated as of June 20, 2019 by and among Fresenius Medical Care US Finance III, Inc., the Company and Fresenius Medical Care Holdings, Inc., as Guarantors, and U.S. Bank National Association, as Trustee, related to the 3.750% Notes due 2029 of Fresenius Medical Care US Finance III, Inc.

 

10.2

 

Guarantee for 3.750% Notes due 2029 (included in Exhibit 10.1).

 

31.1

 

Certification of Chief Executive Officer and Chairman of the Management Board of the Company's General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

31.2

 

Certification of Chief Financial Officer and member of the Management Board of the Company's General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

32.1

 

Certification of Chief Executive Officer and Chairman of the Management Board of the Company's General Partner and Chief Financial Officer and member of the Management Board of the Company's General Partner Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (this exhibit accompanies this report as required by the Sarbanes-Oxley Act of 2002 and is not to be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended).

 

101

 

The following financial statements as of and for the three- and six-month periods ended June 30, 2019 from FMC-AG & Co. KGaA's Report on Form 6-K for the month of July 2019, formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Statements of Income, (ii) Consolidated Statements of Comprehensive Income, (iii) Consolidated Balance Sheets, (iv) Consolidated Statements of Cash Flows, (v)  Consolidated Statements of Shareholders' Equity and (vi) Notes to Consolidated Financial Statements.

80


Table of Contents


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

DATE: July 30, 2019

    FRESENIUS MEDICAL CARE AG & Co. KGaA
a partnership limited by shares, represented by:

 

 

FRESENIUS MEDICAL CARE MANAGEMENT AG,
its General Partner

 

 

By:

 

/s/ RICE POWELL

        Name:   Rice Powell
        Title:   Chief Executive Officer and Chairman of the Management Board of the General Partner

 

 

By:

 

/s/ MICHAEL BROSNAN

        Name:   Michael Brosnan
        Title:   Chief Financial Officer and member of the Management Board of the General Partner

81




Exhibit 10.1

 

EXECUTION VERSION

 

 

 

FRESENIUS MEDICAL CARE US FINANCE III, INC.
as Issuer

 

U.S. BANK NATIONAL ASSOCIATION
as Trustee

 

FRESENIUS MEDICAL CARE AG & Co. KGaA,
FRESENIUS MEDICAL CARE HOLDINGS, INC. and

 

as Guarantors

 

INDENTURE

 

DATED AS OF JUNE 20, 2019

 

with respect to the issuance of

 

$500,000,000 3.750% NOTES DUE 2029

 

 


 

TABLE OF CONTENTS

 

 

Page

 

 

ARTICLE I

 

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

 

 

SECTION 1.1

Definitions

1

SECTION 1.2

Rules of Construction

11

 

 

 

ARTICLE II

 

 

THE NOTES

SECTION 2.1

Form and Dating

11

SECTION 2.2

Execution and Authentication

12

SECTION 2.3

Registrar and Paying Agent

13

SECTION 2.4

Paying Agent To Hold Assets in Trust

14

SECTION 2.5

List of Holders

14

SECTION 2.6

Book-Entry Provisions for Global Notes

14

SECTION 2.7

Registration of Transfer and Exchange

15

SECTION 2.8

Replacement Notes

20

SECTION 2.9

Outstanding Notes

21

SECTION 2.10

Treasury Notes

21

SECTION 2.11

Temporary Notes

21

SECTION 2.12

Cancellation

22

SECTION 2.13

Defaulted Interest

22

SECTION 2.14

CUSIP Numbers

22

SECTION 2.15

Deposit of Moneys

22

SECTION 2.16

Certain Matters Relating to Global Notes

23

SECTION 2.17

Record Date

23

 

 

 

ARTICLE III

 

 

REDEMPTION

 

 

 

SECTION 3.1

Optional Redemption

23

SECTION 3.2

Notices to Trustee

24

SECTION 3.3

Selection of Notes To Be Redeemed

24

SECTION 3.4

Notice of Redemption

24

SECTION 3.5

Effect of Notice of Redemption

26

SECTION 3.6

Deposit of Redemption Price

26

SECTION 3.7

Notes Redeemed in Part

26

SECTION 3.8

Special Tax Redemption

27

 

i


 

 

Page

 

 

ARTICLE IV

 

 

COVENANTS

 

 

SECTION 4.1

Payment of Notes

28

SECTION 4.2

Maintenance of Office or Agency

28

SECTION 4.3

Negative Pledge of the Issuer

28

SECTION 4.4

Negative Pledge of the Company

29

SECTION 4.5

Ownership of the Issuer

29

SECTION 4.6

Existence

30

SECTION 4.7

Maintenance of Properties

30

SECTION 4.8

Payment of Taxes and Other Claims

30

SECTION 4.9

Maintenance of Insurance

31

SECTION 4.10

Reports

31

SECTION 4.11

Change of Control

32

SECTION 4.12

Additional Amounts

34

SECTION 4.13

Compliance Certificate; Notice of Default

35

 

 

 

ARTICLE V

 

 

SUCCESSOR ISSUER OR GUARANTOR

 

 

 

SECTION 5.1

Limitation on Mergers and Sales of Assets

35

SECTION 5.2

Successor Entity Substituted

36

SECTION 5.3

Substitution of the Issuer

36

 

 

 

ARTICLE VI

 

 

DEFAULT AND REMEDIES

 

 

 

SECTION 6.1

Events of Default

37

SECTION 6.2

Acceleration

38

SECTION 6.3

Other Remedies

39

SECTION 6.4

The Trustee May Enforce Claims Without Possession of Notes

39

SECTION 6.5

Rights and Remedies Cumulative

39

SECTION 6.6

Delay or Omission Not Waiver

39

SECTION 6.7

Waiver of Past Defaults

39

SECTION 6.8

Control by Majority

40

SECTION 6.9

Limitation on Suits

40

SECTION 6.10

Rights of Holders To Receive Payment

40

SECTION 6.11

Collection Suit by Trustee

40

SECTION 6.12

Trustee May File Proofs of Claim

41

SECTION 6.13

Priorities

41

SECTION 6.14

Restoration of Rights and Remedies

41

SECTION 6.15

Undertaking for Costs

42

SECTION 6.16

Notices of Default

42

 

ii


 

 

Page

 

 

ARTICLE VII

 

 

TRUSTEE

SECTION 7.1

Duties of Trustee

42

SECTION 7.2

Rights of Trustee

43

SECTION 7.3

Individual Rights of Trustee

45

SECTION 7.4

Trustee’s Disclaimer

45

SECTION 7.5

Notice of Default

45

SECTION 7.6

Compensation and Indemnity

45

SECTION 7.7

Replacement of Trustee

47

SECTION 7.8

Successor Trustee by Merger, Etc.

48

SECTION 7.9

Eligibility; Disqualification

48

 

 

 

ARTICLE VIII

 

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

 

 

SECTION 8.1

Option To Effect Legal Defeasance or Covenant Defeasance

48

SECTION 8.2

Legal Defeasance and Discharge

48

SECTION 8.3

Covenant Defeasance

49

SECTION 8.4

Conditions to Legal or Covenant Defeasance

49

SECTION 8.5

Satisfaction and Discharge of Indenture

50

SECTION 8.6

Survival of Certain Obligations

50

SECTION 8.7

Acknowledgment of Discharge by Trustee

51

SECTION 8.8

Application of Trust Moneys

51

SECTION 8.9

Repayment to the Issuer; Unclaimed Money

51

SECTION 8.10

Reinstatement

52

 

 

 

ARTICLE IX

 

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

 

 

SECTION 9.1

Without Consent of Holders of Notes

52

SECTION 9.2

With Consent of Holders of Notes

53

SECTION 9.3

Notice of Amendment, Supplement or Waiver

54

SECTION 9.4

Revocation and Effect of Consents

54

SECTION 9.5

Notation on or Exchange of Notes

55

SECTION 9.6

Trustee To Sign Amendments, Etc.

55

 

 

 

ARTICLE X

 

 

NOTE GUARANTEE

 

 

 

SECTION 10.1

Note Guarantee

55

SECTION 10.2

Guarantors May Consolidate, Etc., on Certain Terms

57

SECTION 10.3

Release of Guarantors

57

 

iii


 

 

Page

 

 

ARTICLE XI

 

 

MISCELLANEOUS

 

 

 

SECTION 11.1

Notices

58

SECTION 11.2

Certificate and Opinion as to Conditions Precedent

59

SECTION 11.3

Statements Required in Certificate or Opinion

60

SECTION 11.4

Rules by Trustee, Paying Agent, Registrar

60

SECTION 11.5

Legal Holidays

61

SECTION 11.6

Governing Law

61

SECTION 11.7

Submission to Jurisdiction

61

SECTION 11.8

No Personal Liability of Directors, Officers, Employees and Stockholders

62

SECTION 11.9

Successors

62

SECTION 11.10

Counterpart Originals

62

SECTION 11.11

Severability

62

SECTION 11.12

Table of Contents, Headings, Etc.

62

SECTION 11.13

Currency Indemnity

62

SECTION 11.14

Information

63

 

iv


 

EXHIBITS

 

Exhibit A  -  Form of Note

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

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

 

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

 

v


 

INDENTURE dated as of JUNE 20, 2019, among FRESENIUS MEDICAL CARE US FINANCE III, INC., a Delaware corporation (the “Issuer”), as Issuer, FRESENIUS MEDICAL CARE AG & Co. KGaA, a partnership limited by shares ( Kommanditgesellschaft auf Aktien ) organized under the laws of the Federal Republic of Germany (the “Company”) and FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation (“FMCH” and, together with the Company, the “Guarantors”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).

 

The Issuer has duly authorized the creation and issuance of its 3.750% Notes due 2029  The Notes consist of (i) $500,000,000 aggregate principal amount of notes issued on the date hereof (the “Initial Notes”) and (ii) Additional Notes (as defined herein) that may be issued on any Issue Date (all such notes referred to in clauses (i) and (ii) being referred to as the “Notes”); and, to provide therefor, the Issuer has duly authorized the execution and delivery of this Indenture.  The Notes will be guaranteed (the “Note Guarantee”) on a senior unsecured basis by each Guarantor.  Each of the Issuer and the Guarantors has duly authorized the execution and delivery of this Indenture.  All things necessary to make the Notes, when duly issued and executed by the Issuer and authenticated and delivered by the Trustee hereunder, the valid obligations of the Issuer and the valid obligation of each Guarantor and to make this Indenture a valid agreement of the Issuer and each Guarantor, have been done.

 

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

 

ARTICLE I

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

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

 

“Accounting Principles” means IFRS or any other accounting standards which are generally acceptable in the jurisdiction of organization of the Company, approved by the relevant regulatory or other accounting bodies in that jurisdiction and internationally generally acceptable and as in effect from time to time.

 

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

 

“Additional Notes” means additional 3.750% Notes due 2029.

 

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

 

“Affiliate” of any specified Person means:

 

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

 

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

 


 

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

 

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

 

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

 

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

 

“Bankruptcy Law” means (i) for purposes of the Company or any Material Subsidiary organized under the laws of the Federal Republic of Germany, any bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application (including, without limitation, the German Insolvency Code (“ Insolvenzordnung ”) and (ii) for purposes of the Issuer and FMCH, or the Trustee, Title 11, United States Code or any similar federal, state or foreign law for the relief of debtors.

 

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

 

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

 

“Business Day” means any day other than:

 

(1)                                  a Saturday or Sunday,

 

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

 

(3)                                  a day on which the corporate trust office of the Trustee is closed for business.

 

2


 

“Capital Market Indebtedness” means any obligation for the payment of borrowed money which is evidenced by a certificate of indebtedness ( Schuldscheindarlehen ) or which is represented by any bond or debt security with an original maturity of more than one year which is, or is intended to be, or is capable of being listed or traded on a stock exchange or other recognized securities market .

 

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

 

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

 

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

 

(2)                                  if the Company is no longer organized as a KGaA, any event the result of which is that (A) any person or group (a “Relevant Person” or “Relevant Persons”) acting in concert (as defined in § 30 (2) of the German Securities Acquisition and Takeover Act ( Wertpapiererwerbs- und Übernahmegesetz )) or any person or group acting on behalf of any such Relevant Person or Relevant Persons, other than a Permitted Holder, is or becomes the direct or indirect legal or beneficial owner of, or of any legal or beneficial entitlement (as defined in § 22 of the German Securities Trading Act ( Wertpapierhandelsgesetz )) to, in the aggregate, more than 50% of the voting shares of the Company; or

 

(3)                                  any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company (held directly or indirectly) to any Relevant Person other than a Permitted Holder, or any person or group acting on behalf of any such Relevant Person or Relevant Persons.

 

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

 

“Closing Date” means the date of this Indenture.

 

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

 

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

 

“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof for purposes of Section 4.2 only is located at 111 Fillmore Avenue, St. Paul, MN 55107, Attention: Fresenius Medical Care US Finance III, Inc., and for all other purposes is located at 225 Asylum

 

3


 

Street, Hartford, Connecticut 06103, Attention: : Fresenius Medical Care US Finance III, Inc., or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company)..

 

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

 

“Credit Facility” means the credit agreement entered into as of October 30, 2012 among, inter alia, the Company and Fresenius Medical Care Holdings, Inc., as borrowers and guarantors, the lenders party thereto, Bank of America, N.A., as administrative agent, and the other agents named therein, as amended, modified, extended, renewed, supplemented, refunded, replaced, restated or refinanced from time to time.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“EBITDA” means operating income plus depreciation and amortization and is derived from the operating income determined in accordance with IFRS for the most recently ended four full fiscal quarters for which internal financial statements are available.

 

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

 

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

 

4


 

“FATCA” means any United States federal tax imposed pursuant to (i) sections 1471 to 1474 of the Code, as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), or any regulations promulgated thereunder or official interpretations thereof, (ii) any agreement entered into pursuant to Section 1471(b) of the Code, as of the Issue Date (or any amended or successor version described above), or (iii) any treaty, law or regulation of any other jurisdiction relating to an intergovernmental agreement between the United States and such other jurisdiction, in either case implementing any law or regulation referred to in the preceding clause (i).

 

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

 

“Fitch” means Fitch Ratings, Inc. and its subsidiaries and successors.

 

“Fresenius Medical Care Group” means the Company and its Subsidiaries on a consolidated basis.

 

“Fresenius SE” means Fresenius SE & Co. KGaA, a partnership limited by shares ( Kommanditgesellschaft auf Aktien ).

 

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

 

“Global Legend” shall have the meaning set forth in Section 2.6(a).

 

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

 

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

 

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

 

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

 

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

 

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

 

“Investment Grade” means a rating of (i) BBB- or higher by S&P, (ii) Baa3 or higher by Moody’s and (iii) BBB- or higher by Fitch, or the equivalent of such ratings by S&P,

 

5


 

Moody’s or Fitch and the equivalent in respect of rating categories of any Rating Agencies substituted for S&P, Moody’s or Fitch.

 

“Issue Date” means June 20, 2019.

 

“Issuer” means Fresenius Medical Care US Finance III, Inc. until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

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

 

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

 

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

 

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

 

“Listing Agent” means BNP Paribas Securities Services, Luxembourg Branch.

 

“Material Subsidiary” means any Subsidiary of Fresenius Medical Care AG & Co. KGaA which:

 

(1)                                  has unconsolidated EBITDA representing 5% or more of the EBITDA of the Fresenius Medical Care Group on a consolidated basis; or

 

(2)                                  has unconsolidated gross assets representing 5% or more of the gross assets of the Fresenius Medical Care Group on a consolidated basis,

 

in each case as determined by reference to the latest audited annual financial statements prepared in accordance with IFRS.

 

“Maturity Date” means June 15, 2029.

 

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

 

“Note Guarantee” means the guarantee by a Guarantor of the Issuer’s obligations under the Notes.

 

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

 

“Offering Memorandum” means that certain Offering Memorandum dated June  13, 2019 relating to the Initial Notes.

 

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

 

6


 

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

 

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

 

“Permitted Holders” means Fresenius SE and any of its Affiliates, as long as and to the extent Fresenius SE or the relevant Affiliate(s) is or are not acting in concert with, or on behalf of, a Relevant Person or Relevant Persons.

 

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

 

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

 

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

 

“Rating Agencies” means:

 

(1)                                  S&P,

 

(2)                                  Moody’s, and

 

(3)                                  Fitch, or

 

(4)                                  if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes publicly available, despite the Company using its commercially reasonable efforts to obtain such a rating, another reputable securities rating agency or agencies, as the case may be, having equivalent international standing selected by the Company, which shall be substituted for S&P, Moody’s, Fitch or all three, as the case may be.

 

“Rating Category” means:

 

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

 

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

 

(3)                                  with respect to Fitch, any of the following categories: BB, B, CCC, CC, C and D (or equivalent successor categories); and

 

(4)                                  the equivalent of any such category of S&P, Moody’s or Fitch used by another rating agency.  In determining whether the rating of the Notes has decreased by one

 

7


 

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

 

“Ratings Decline” means that if (a), at the time of the occurrence of a Change of Control, the Notes (i) have been rated Investment Grade by at least two Rating Agencies and such rating is, within 120 days from such time, either downgraded to a non-Investment Grade rating or withdrawn by at least two Rating Agencies and is not within such 120-day period subsequently (in the case of a downgrade) upgraded to Investment Grade by two of the three Rating Agencies, or (in the case of withdrawal) replaced by an Investment Grade rating from any other Rating Agency or Rating Agencies; or (ii) rated below Investment Grade and such rating from any Rating Agency is, within 120 days from such time, downgraded by one or more gradations (including gradations within Rating Categories as well as between Rating Categories) and is not within such 120-day period subsequently upgraded to its earlier credit rating or better by such Rating Agency; provided that if at the time of the occurrence of a Change of Control the Notes carry an Investment Grade rating of only one Rating Agency, it shall be sufficient if the requirements under clause (i) are met with respect to such Rating Agency; and (b) in making any of the decisions referred to above, the relevant Rating Agency announces publicly or confirms in writing to the Company that its decision resulted, in whole or in part, from the occurrence of the Change of Control; provided, however , that, no Ratings Decline will occur if at the end of the 120-day period the Notes have been rated by at least two Rating Agencies it has solicited, Investment Grade.

 

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

 

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

 

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

 

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

 

“Regulated Market of the Luxembourg Stock Exchange” means the regulated market of the Luxembourg Stock Exchange, a market appearing on the list of regulated markets issued by the European Community pursuant to Directive 2004/39EC of April 21, 2004 on markets in financial instruments.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Security Interest” means any mortgage, land charge, lien or any other security right in rem ( dingliches Sicherungsrecht ) .

 

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

 

“S&P” means S&P Global Ratings and its subsidiaries and successors.

 

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

 

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, association, partnership or other business entity whose results of operations are consolidated in accordance with the Accounting Principles with those of:

 

(1)                                  such Person;

 

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

 

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(3)                                  one or more Subsidiaries of such Person.

 

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

 

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

 

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

 

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

 

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

 

“Treasury Rate” means, with respect to a Redemption Date, the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” at least two Business Days prior to such Redemption Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to the Stated Maturity date of the Notes; provided, however, that if the period from the Redemption Date to such date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

 

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

 

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

 

“Wholly Owned Subsidiary” means a Subsidiary all the Capital Stock of which (other than directors’ qualifying shares and shares held by other Persons to the extent such shares are required by applicable law to be held by a Person other than its parent or a Subsidiary of its

 

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parent) is owned by the Company or by one or more Wholly Owned Subsidiaries, or by the Company and one or more Wholly Owned Subsidiaries.

 

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

 

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

 

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

 

(c)                                   “or” is not exclusive;

 

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

 

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

 

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

 

ARTICLE II

 

THE NOTES

 

SECTION 2.1                                                   Form and Dating .  The Notes and the Trustee’s certificate of authentication thereof, shall be substantially in the form of Exhibit A .  The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage.  The Issuer and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them not inconsistent with the terms of this Indenture.  Each Note shall be dated the date of its issuance and shall show the date of its authentication.

 

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

 

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

 

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

 

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

 

Each reference in this Indenture to the performance of duties set forth in clauses (1) and (2) above by the Trustee includes performance of such duties by the Paying Agent.

 

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

 

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

 

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

 

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

 

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

 

Except as otherwise provided herein, the aggregate principal amount of Notes which may be outstanding at any time under this Indenture is not limited in amount.  Upon

 

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

 

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

 

The Notes shall be issuable only in denominations of $150,000 and integral multiples of $2,000 in excess thereof.

 

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

 

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The Issuer shall notify the Trustee and the Trustee shall notify the Holders of the name and address of any Agent not a party to this Indenture.  The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture.  The agreement shall implement the provisions of this Indenture and the Notes that relate to such Agent.  The Issuer shall notify the Trustee of the name and address of any such Agent.  If the Issuer fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 7.6 hereof.

 

The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent. In acting under this Indenture and in connection with the Notes, the Paying Agent and the Registrar shall act solely as an agent of the Issuer, and will not thereby assume any obligations towards or relationship of agency or trust for or with any Holder except as expressly provided in this Indenture.

 

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

 

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

 

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

 

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

 

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COMPANY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

(a)                                  Notwithstanding any other provisions of this Indenture, a Global Note may not be transferred as a whole except by DTC to a nominee of DTC or by a nominee of DTC to DTC or another successor of DTC or a nominee of such successor.  Interests of beneficial owners in the Global Notes may be transferred or exchanged for Definitive Notes in accordance with the rules and procedures of DTC and the provisions of Section 2.7.  All Global Notes shall be exchanged by the Issuer (and upon receipt of an Issuer Order, with authentication by the Trustee) for one or more Definitive Notes, if (a) if DTC notifies the Issuer that it is unwilling or unable to continue as depositary for the Global Note, or DTC ceases to be a clearing agency registered under the Exchange Act and, in either case, a qualified successor depositary is not appointed by the Issuer within 120 days, (b) DTC so requests following an Event of Default hereunder or (c) if the beneficial owner of an interest in the Global Note requests such exchange in writing delivered through DTC following an Event of Default.  If an Event of Default occurs and is continuing, the Issuer shall, at the written request delivered through DTC, exchange all or part of a Global Note for one or more Definitive Notes (and upon receipt of an Issuer Order, with authentication by the Trustee); provided, however, that the principal amount of such Definitive Notes and such Global Note after such exchange shall be $150,000 or integral multiples of $2,000 in excess thereof.  Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation.  Whenever a part of a Global Note is exchanged for one or more Definitive Notes, the Global Note shall be surrendered by the Holder thereof to the Paying Agent who together with the Trustee, following such surrender, shall cause an adjustment to be made to Schedule A of such Global Note such that the principal amount of such Global Note will be equal to the portion of such Global Note not exchanged and shall thereafter return such Global Note to such Holder.  A Global Note may not be exchanged for a Definitive Note other than as provided in this Section 2.6(a).

 

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

 

(c)                                   Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.6(a) shall, except as otherwise provided by Section 2.7, bear the Private Placement Legend together with the following legend (the “Definitive Note Legend”):

 

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

 

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

 

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

 

(b)                                  If a holder of a beneficial interest in the Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in the Rule 144A Global Note, or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Rule 144A Global Note, such holder may, subject to the rules and procedures of the DTC, to the extent applicable, and to the requirements set forth in this Section 2.7(b), exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Rule 144A Global Note.  Such exchange or transfer shall only be made upon receipt by the Paying Agent, as transfer agent, at its Corporate Trust Office of (l) instructions given in accordance with the procedures of the DTC, to the extent applicable, from or on behalf of a beneficial owner of an interest in the Regulation S Global Note directing the Paying Agent, as transfer agent, to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in an amount equal to the beneficial interest in the Regulation S Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the DTC, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, and (3) prior to or on the 40th day after the later of the commencement of the offering of the Notes and the relevant date of issuance of the Notes (the “Restricted Period”), a certificate in the form of Exhibit C given by the holder of such beneficial interest and stating that the Person transferring

 

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such interest in such Regulation S Note reasonably believes that the Person acquiring such interest in such Rule 144A Note is a Qualified Institutional Buyer (as defined in Rule 144A) and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and any applicable securities laws of any state of the United States or any other jurisdiction.  Upon such receipt, the Paying Agent, as transfer agent, shall promptly deliver instructions to the DTC to reduce or reflect on its records a reduction of the Regulation S Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be exchanged or transferred, and the Paying Agent, as transfer agent, shall promptly deliver instructions to the DTC concurrently with such reduction, to increase or reflect on its records an increase of the principal amount of such Rule 144A Global Note by the aggregate principal amount of the beneficial interest in such Regulation S Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in such Rule 144A Global Note equal to the reduction in the principal amount of such Regulation S Global Note.  After the expiration of the Restricted Period, the certification requirement set forth in clause (3) of the second sentence of this Section 2.7(b) will no longer apply to such transfers.

 

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

 

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

 

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

 

(f)                                    (i)  Other than in the case of Notes issued pursuant to a registration statement which has been declared effective under the Securities Act, each Note issued hereunder shall, upon issuance, bear the legend set forth in clause (ii) below (the “Private Placement Legend”) and such legend shall not be removed from such Note except as provided in the next sentence.  The legend on a Note may be removed from a Note if there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the

 

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Securities Act, and the Issuer and the Trustee consent to such removal.  Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Issuer, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend.  If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

 

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

 

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

 

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

 

Neither the Trustee nor any Agent shall have any responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Securities  (or other security or property) under or with respect to such Notes.  All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note).  The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC.  The Trustee and any Agent may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.

 

None of the Trustee, the Paying Agent or the Registrar shall have any obligation or duty to monitor, and shall not be liable for any failure to, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.   Neither the Trustee, the Paying Agent nor any of their respective agents shall have any responsibility for any actions taken or not taken by DTC.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

If a Note is replaced pursuant to Section 2.8 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee receives proof satisfactory to it, and upon which it shall be entitled to rely in accordance with Section 7.1(a), that the replaced Note is held by a bona fide purchaser.  A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.8.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 2.15                                            Deposit of Moneys .  Prior to 10:00 a.m. New York City time on each interest payment date and Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Paying Agent or its successor unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to

 

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make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding; provided , however , to the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 10:00 a.m., New York City time, on the due date, such funds will be deemed deposited within one Business Day of receipt thereof.  Such payments shall be made by the Issuer in a timely manner which permits the Paying Agent to remit payment to the Holders on such interest payment date or Maturity Date, as the case may be.  Promptly upon receipt of such payment, the Paying Agent shall confirm by the medium chosen by the Paying Agent to the Issuer the receipt of such payment.

 

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

 

DTC and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.

 

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

 

SECTION 2.17                                            Record Date .  Unless otherwise set forth in this Indenture, the record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture shall be determined by the Issuer; provided that such record date shall be the later of 30 days prior to the first solicitation of such vote or consent or the date of the most recent list of Holders furnished to the Trustee.

 

ARTICLE III

 

REDEMPTION

 

SECTION 3.1                                                   Optional Redemption .  Prior to March 15, 2029 (the “Par Call Date”) the Issuer may redeem all or, from time to time, a part of the Notes, at its option, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued interest, if any, to the redemption date, plus the excess of:

 

(a)                                  as determined by the calculation agent (which shall initially be the Trustee), the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed that would have been due if the Notes matured on the Par Call

 

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Date, excluding accrued and unpaid interest to, but not including,  the date of redemption, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 30 basis points; over

 

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

 

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

 

In addition, on or after the Par Call Date the Notes may be redeemed, in whole or in part, by the Issuer upon not less than 10 nor more than 60 days’ prior notice, at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of redemption.

 

SECTION 3.2                                                   Notices to Trustee .  If the Issuer elects to redeem Notes pursuant to Paragraphs 8 or 9 of such Notes, it shall notify the Trustee and the Paying Agent in writing of the Redemption Date and the principal amount of Notes to be redeemed at least 15 days prior to the giving of the notice contemplated by Section 3.4 (or such shorter period as the Trustee in its sole discretion shall determine).  The Issuer shall give notice of redemption as required under the relevant paragraph of the Notes pursuant to which such Notes are being redeemed.

 

SECTION 3.3                                                   Selection of Notes To Be Redeemed .  In the case of any partial redemption, the Trustee will select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, and/or in compliance with the requirements of the DTC, or if such Notes are not listed, on a pro rata basis or by lot (and, in the case of Global Notes, in accordance with the applicable procedures of DTC), although no Note of $150,000 in original principal amount or less will be redeemed in part.  If any Note is to be redeemed in part only, notice of redemption relating to that Note will state the portion of the principal amount thereof to be redeemed.  A new Note in principal amount equal to the unredeemed portion thereof will be issued and delivered to the Trustee, or in the case of Definitive Notes, issued in the name of the Holder thereof upon cancellation of the original Note.

 

SECTION 3.4                                                   Notice of Redemption .  At least 10 days but not more than 60 days before a Redemption Date or a Tax Redemption Date, as applicable, the Issuer shall, if and so long as the Notes are in global form and are admitted to trading on the Regulated Market of the Luxembourg Stock Exchange and the rules of such stock exchange shall so require, publish a redemption notice in a newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort ) or, to the extent and in the manner permitted by such rules, post such notice on the official website of the Luxembourg Stock Exchange (www.bourse.lu)) and notify the Holders, the Trustee and the Luxembourg Stock Exchange, if applicable, or in the case of Definitive Notes, in addition to such publication, mail such notice to Holders (with a copy to the Trustee) by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar.  At the Issuer’s request made at least 45 days before the Redemption Date or a Tax Redemption Date, as applicable (or such shorter period as the Trustee in its sole discretion shall determine), the Paying Agent shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided , however , that the Issuer shall

 

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deliver to the Trustee (in advance) an Officers’ Certificate requesting that the Trustee give such notice and setting forth in full the information to be stated in such notice as provided in the following items.  Each notice for redemption shall identify the Notes to be redeemed and shall state:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Prior to the giving of any notice of redemption pursuant to Paragraph 9 of the Notes, the Issuer will deliver to the Trustee (a) an Officers’ Certificate of the Issuer stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that

 

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the conditions precedent to the right of the Issuer so to redeem have occurred and (b) an Opinion of Counsel qualified under the laws of the relevant jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of a change in tax law, and that the Issuer cannot avoid such obligation by taking reasonable measures available to it.

 

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

 

SECTION 3.6                                                   Deposit of Redemption Price .  Prior to 10:00 a.m. New York City time on the Redemption Date or the Tax Redemption Date, as applicable, the Issuer shall deposit with the Trustee or its designated Paying Agent (which shall be the Paying Agent or its successor unless otherwise notified to the Issuer by the Trustee) cash in U.S. Dollars in same-day funds sufficient to pay the Redemption Price plus accrued and unpaid interest (subject to, as provided in the Notes, the right of Holders to receive interest on the relevant interest payment date), if any, and Additional Amounts, if any, of all Notes to be redeemed on that date other than Notes or portion of Notes called for redemption that have been delivered by the Issuer to the Trustee for cancellation.  The designated Paying Agent shall promptly return to the Issuer any cash so deposited which is not required for that purpose upon the written request of the Issuer.  Promptly upon receipt of such payment the Paying Agent shall confirm by the medium chosen by the Paying Agent to the Issuer the receipt of such payment.

 

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

 

SECTION 3.7                                                   Notes Redeemed in Part .  Upon surrender and cancellation of a Definitive Note that is redeemed in part, the Issuer shall execute and upon receipt of an Issuer Order, the Trustee shall authenticate for the Holder (at the Issuer’s expense) a new Definitive Note equal in principal amount to the unredeemed portion of the Definitive Note surrendered and

 

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canceled; provided , however , that each such Definitive Note shall be in a principal amount at maturity of $150,000 or integral multiples of $2,000 in excess thereof.  Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall promptly forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the Global Note surrendered; provided , however , that each such Global Note shall be in a principal amount at maturity of $150,000 or integral multiples of $2,000 in excess thereof.

 

SECTION 3.8                                                   Special Tax Redemption .  The Issuer will be entitled to redeem the Notes, at its option, in whole but not in part, upon not less than 10 nor more than 60 days’ notice, at 100% of the principal amount of the Notes, plus accrued and unpaid interest (if any) to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in the event the Issuer has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes, any Additional Amounts as a result of:

 

(a)                                  a change in or an amendment to the laws, treaties or regulations of any Relevant Taxing Jurisdiction; or

 

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

 

which change or amendment to such laws, treaties, regulations or official position is announced and becomes effective after the issuance of the Notes (or, if the applicable Relevant Taxing Jurisdiction did not become a Relevant Taxing Jurisdiction until a later date, after such later date) ; provided , that the Issuer determines, in its reasonable judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use of reasonable measures available to it; provided , further , that at the time such notice is given, such obligation to pay Additional Amounts remains in effect.

 

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

 

Before the publication of any such notice, the Issuer shall deliver to the Trustee an Officers’ Certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred, and an opinion of independent legal counsel of recognized standing to the effect that the Issuer has or will become obliged to pay such Additional Amounts as a result of such change or amendment.

 

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ARTICLE IV

 

COVENANTS

 

SECTION 4.1                                                   Payment of Notes .

 

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

 

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

 

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

 

SECTION 4.3                                                   Negative Pledge of the Issuer .

 

(a)                                  So long as any of the Notes remain outstanding, but only up to the time all amounts of principal and interest have been deposited with the Paying Agent, the Issuer undertakes not to grant or permit to subsist any Security Interest over any or all of its present or future assets, as security for any present or future Capital Market Indebtedness without at the same time having the holders share equally and ratably in such Security Interest.

 

(b)                                  This undertaking shall not apply with respect to any Security Interest which (1) is provided by the Issuer over any of the Issuer’s claims against the Company or any Subsidiary of the Company, as the case may be, or any third party, which claims exist now or arise at any time in the future, as a result of the passing on of the proceeds from the sale by the issuer of any securities, provided that any such security serves to secure obligations under such securities issued by the Issuer, (2) is existing on assets at the time of the acquisition thereof by the Issuer or is existing over assets of a newly acquired company which becomes a member of the Fresenius Medical Care Group; provided that such Security Interest was not created in contemplation of such acquisition, (3) is existing on the Issue Date, (4) secures Capital Market Indebtedness existing at the time of an acquisition that becomes an obligation of the Issuer or of any company within the Fresenius Medical Care Group as a consequence of such acquisition; provided that such Capital Market Indebtedness was not created in contemplation of such acquisition, (5) is mandatory pursuant to applicable laws or required as a prerequisite for obtaining

 

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any governmental approvals, (6) is provided in connection with any issuance of asset backed securities by the Issuer, (7) is provided in respect of any issuance of asset backed securities made by a special purpose vehicle where the Issuer is the originator of the underlying assets, (8) is provided in connection with the renewal, extension or replacement of any security pursuant to foregoing (1) through (7) and, (9) secures Capital Market Indebtedness the principal amount of which (when aggregated with the principal amount of any other Capital Market Indebtedness which has the benefit of a security other than any permitted under the sub-paragraphs (1) to (8) above) does not exceed €100,000,000 (or its equivalent in other currencies at any time).

 

SECTION 4.4                                                   Negative Pledge of the Company .

 

(a)                                  So long as any of the Notes remain outstanding, but only up to the time all amounts of principal and interest have deposited with the Paying Agent, the Company undertakes not to grant or permit to subsist any Security Interest over any or all of its present or future assets, as security for any present or future Capital Market Indebtedness and to procure, to the extent legally possible, that none of its Subsidiaries will grant or permit to subsist any Security Interest over any or all of its present or future assets as security for any present or future Capital Market Indebtedness without at the same time having the holders share equally and ratably in such Security Interest.

 

This undertaking shall not apply with respect to any Security Interest which (1) is provided by the Company or by any of its Subsidiaries over any of the Company’s claims or claims of any of its Subsidiaries against the Company, or any Subsidiary, as the case may be, or any third party, which claims exist now or arise at any time in the future, as a result of the passing on of the proceeds from the sale by the issuer of any securities, provided that any such security serves to secure obligations under such securities issued by the Company or any of its Subsidiaries, (2) is existing on assets at the time of the acquisition thereof by the Company or by any of its Subsidiaries or is existing over assets of a newly acquired company which becomes a member of the Fresenius Medical Care Group; provided that such Security Interest was not created in contemplation of such acquisition, (3) is existing on the Issue Date of the Notes, (4) secures Capital Market Indebtedness existing at the time of an acquisition that becomes an obligation of the Issuer or of any company within the Fresenius Medical Care Group as a consequence of such acquisition; provided that such Capital Market Indebtedness was not created in contemplation of such acquisition, (5) is mandatory pursuant to applicable laws or required as a prerequisite for obtaining any governmental approvals, (6) is provided in connection with any issuance of asset backed securities by the Company or by any of its Subsidiaries, (7) is provided in respect of any issuance of asset backed securities made by a special purpose vehicle where the Company or any of its Subsidiaries is the originator of the underlying assets, (8) is provided in connection with the renewal, extension or replacement of any security pursuant to foregoing (1) through (7) and, (9) secures Capital Market Indebtedness the principal amount of which (when aggregated with the principal amount of any other Capital Market Indebtedness which has the benefit of a security other than any permitted under the sub-paragraphs (1) to (8) above) does not exceed €100,000,000 (or its equivalent in other currencies at any time).

 

SECTION 4.5                                                   Ownership of the Issuer .  The Company will continue to directly or indirectly maintain 100% ownership of the Capital Stock of the Issuer or any permitted

 

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successor of the Issuer; provided , that any permitted successor of the Company under this Indenture may succeed to the Company’s ownership of such Capital Stock.

 

The Company will cause the Issuer or its successor to engage only in those activities that are necessary, convenient or incidental to issuing and selling the Notes and any additional Indebtedness permitted by this Indenture (including any Additional Notes), and advancing or distributing the proceeds thereof to the Company and its Subsidiaries and performing its obligations relating to the Notes and any such additional indebtedness, pursuant to the terms thereof and of this Indenture and any other applicable indenture and/or engaging in any lawful act or activity and exercising any lawful power necessary, incidental or convenient to enable the Issuer to carry out these purposes stated that may be taken or exercised by corporations organized under the General Corporation Law of the State of Delaware, as amended from time to time.

 

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

 

SECTION 4.7                                                   Maintenance of Properties .  Except as permitted by Article V, the Company shall cause all properties used or useful in the conduct of its business or the business of any Subsidiary of the Company to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided , however , that nothing in this Section shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, as determined by the Company, or its Responsible Officers, or any Subsidiary, or its Responsible Officers, having managerial responsibility for any such property, in good faith, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders.

 

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

 

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

 

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

 

(1)                                  At any time that the Company’s shares are listed on a U.S. stock exchange or otherwise registered under the Exchange Act, or the Company is otherwise subject to periodic reporting requirements under Section 13 or Section 15(d) of the Exchange Act;

 

(a)                                  within 90 days after the end of each fiscal year of the Company, a copy of its Annual Report on Form 20-F (or any successor form) under the Exchange Act as filed with the SEC for such fiscal year, containing its annual financial statements and  related notes for the two most recent fiscal years prepared in accordance with IFRS, and including operating segment data, together with an audit report thereon and together with an “Operating and Financial Review and Prospects” required by such form; and

 

(b)                                  within 45 days after the end of each fiscal quarter (other than the fourth quarter) a copy of each report on Form 6-K (or any successor form) under the Exchange Act filed with or furnished to the SEC containing unaudited quarterly financial statements as of and for the period from the beginning of each fiscal year to the close of each quarterly period (other than the fourth quarter), together with a “Management’s Discussion and Analysis” in substantially the form filed or furnished by the Company to the SEC as of the Issue Date and as the same may be revised to comply with the rules of the SEC applicable to such reports as in effect from time to time; or

 

(2)                                  At any time that the Company’s shares are not listed on a U.S. stock exchange or otherwise registered under the Exchange Act, or the Company is not otherwise subject to periodic reporting requirements under Section 13 or Section 15(d) of the Exchange Act, promptly after the posting thereof, an English-language version of its annual report, including or accompanied by annual financial statements, and interim reports that include financial statements, that the Company is then required to post on its web site pursuant to Rule 12g3-2(b) under the Exchange Act, or any successor rule;

 

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provided , that in lieu of providing any such document or information, the Company may notify the Trustee in accordance with the Indenture that such document or information has been filed with or furnished to the SEC and/or posted on the Company’s web site, which notice shall include a URL reference to the location of the document or information on the web site of the SEC (www.sec.gov) and/or the web site of the Company.

 

In addition, for so long as any of the Notes remain outstanding and during any period when the Issuer or the Company is not subject to Section 13 or 15(d) of the Exchange Act other than by virtue of the exemption therefrom pursuant to Rule 12g3-2(b), the Company will furnish to any holder or beneficial owner of Notes initially offered and sold in the United States to “qualified institutional buyers” as defined in Rule 144A under the U.S. Securities Act of 1933 pursuant to such rule and any prospective purchaser in the United States designated by such holder or beneficial owner, upon request, any information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act of 1933.

 

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

 

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

 

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

 

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

 

(2)                                  the circumstances and relevant facts regarding such Change of Control Triggering Event;

 

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

 

(4)                                  that each Note will be subject to repurchase only in integral multiples of $2,000; and

 

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(5)                                  the instructions determined by the Issuer, consistent with this Section 4.11, that a Holder must follow in order to have its Notes purchased.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Paying Agent shall promptly send to each Holder of Notes so accepted payment in an amount equal to the purchase price for such Notes, and the Issuer shall execute and issue, and upon receipt of an Issuer Order, the Trustee shall, in the case of Definitive Notes, promptly authenticate and mail to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $150,000 and integral multiples of $2,000 in excess thereof.

 

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

 

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

 

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

 

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

 

The Issuer will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein.  If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which

 

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arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter.

 

The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors.

 

Wherever in this Indenture or the Notes or any Note Guarantee there are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or the Notes, (3) interest or (4) any other amount payable on or with respect to any of the Notes or any Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described in this Section 4.12 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

 

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

 

ARTICLE V

 

SUCCESSOR ISSUER OR GUARANTOR

 

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

 

(1)                                  the Surviving Person is an entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, or any other member country of the Organisation for Economic Co-operation and Development (“OECD”) or of the European Union;

 

(2)                                  the Surviving Person (if other than the Issuer or a Guarantor) shall expressly assume, (A) in a transaction or series of transactions involving the Issuer, by a

 

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supplemental indenture in a form satisfactory to the Trustee, all of the obligations of the Issuer under this Indenture or (B) in a transaction or series of transactions not involving the Issuer, by a Guarantee Agreement, in a form satisfactory to the Trustee, all of the obligations of such Guarantor under its Note Guarantee;

 

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

 

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

 

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

 

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

 

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

 

SECTION 5.3                                                   Substitution of the Issuer .  The Company, any other Guarantor or a Finance Subsidiary (a “Successor”) may assume the obligations of the Issuer under the Notes by executing and delivering to the Trustee (a) a supplemental indenture which subjects such person to all of the provisions of this Indenture and (b) an Opinion of Counsel to the effect

 

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that such supplemental indenture has been duly authorized and executed by such Person, and constitutes the legal, valid, binding and enforceable obligation of such Person, subject to customary exceptions; provided , that (i) the Successor is formed under the laws of the United States of America, or any State thereof or the District of Columbia, or any other member country of the OECD or of the European Union, and (ii) no Additional Amounts would be or become payable with respect to the Notes at the time of such assumption, or as result of any change in the laws of the jurisdiction of formation of such Successor that was reasonably foreseeable at such time. The Successor shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if it were the Issuer thereunder, and the former Issuer shall be discharged from all obligations and covenants under this Indenture and the Notes.

 

ARTICLE VI

 

DEFAULT AND REMEDIES

 

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

 

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

 

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

 

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

 

(4)                                  any Capital Market Indebtedness of the Company, the Issuer, FMCH (unless the Guarantee of FMCH has been released) or any Material Subsidiary becomes prematurely repayable as a result of a default in respect of the terms thereof, or the Company, the Issuer, FMCH (unless the Guarantee of FMCH has been released) or any Material Subsidiary fails to fulfill any  payment obligation in excess of €75,000,000 or the equivalent thereof under any Capital Market Indebtedness or under any guarantees or suretyships given for any Capital Market Indebtedness of others within 30 days from its due date or, in the case of such guarantee or suretyship, within 30 days of such guarantee or suretyship being invoked, unless the Company, the Issuer, FMCH or the relevant Material Subsidiary contests in good faith that such payment obligation exists or is due or that such guarantee or suretyship has been validly invoked or if a security granted therefor is enforced on behalf of or by the creditor(s) entitled thereto; or

 

(5)                                  any Note Guarantee shall cease to be in full force and effect in accordance with its terms for any reason except pursuant to the terms of this Indenture governing the release of Note Guarantees or the satisfaction in full of all the obligations thereunder or

 

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shall be declared invalid or unenforceable other than as contemplated by its terms, or any Guarantor shall repudiate, deny or disaffirm any of its obligations thereunder; or

 

(6)                                  the Company, FMCH, the Issuer or any of the Company’s Material Subsidiaries pursuant to or within the meaning of any Bankruptcy Law:

 

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

 

(b)                                  commences a voluntary case,

 

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

 

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

 

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

 

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

 

A default under clause (3) of this Section 6.1 will not constitute an Event of Default unless the Trustee or Holders of 25% in principal amount of the outstanding Notes notify the Issuer and the Company of such default and such default is not cured within the time specified in clause (3).

 

SECTION 6.2                                                   Acceleration .  If an Event of Default (other than an Event of Default described in clause (6) of Section 6.1) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the outstanding Notes by notice to the Issuer, the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, and Additional Amounts, if any, on all the Notes to be due and payable immediately.  Upon such a declaration, such principal, premium, accrued and unpaid interest, and Additional Amounts, if any, will be due and payable immediately.  If an Event of Default described in clause (6) of Section 6.1 above occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.

 

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

 

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

 

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

 

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

 

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

 

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SECTION 6.8                                                   Control by Majority .  Subject to Section 2.10, the Holders of not less than a majority in principal amount of the outstanding Notes may, by written notice to the Trustee, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it.  Subject to Section 7.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of another Holder of Notes, or that may involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.  Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification and/or security satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action in accordance with Section 7.6.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 6.11                                            Collection Suit by Trustee .  If an Event of Default in payment of principal, premium, if any, interest and Additional Amounts, if any, specified in clause (1) or clause (2) of Section 6.1 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or any other obligor on the Notes for the whole amount of principal, premium, if any, and accrued interest remaining unpaid, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate per annum borne by the Notes and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6.

 

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SECTION 6.12                                            Trustee May File Proofs of Claim .  The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amount due to the Trustee under Section 7.6, accountants and experts) and the Holders allowed in any judicial proceedings relating to the Company, its creditors or its property or other obligor on the Notes, its creditors and its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any Custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under Section 7.6.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties which the Holders of the Notes may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

 

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

 

First :  to the Trustee and the Agents for amounts due under Section 7.6, including (but not limited to) payment of all compensation, fees, expense and liabilities incurred, and all advances made, by the Trustee and the Agents and the costs and expenses of collection;

 

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

 

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

 

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

 

SECTION 6.14                                            Restoration of Rights and Remedies .  If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and

 

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remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

 

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

 

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

 

ARTICLE VII

 

TRUSTEE

 

SECTION 7.1                                                   Duties of Trustee .  If an Event of Default actually known to a Trust Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs.  Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request of any of the Holders of Notes, unless they shall have offered to the Trustee reasonable security and/or indemnity satisfactory to the Trustee against any loss, liability or expense in accordance with the sixth paragraph of Section 7.6.

 

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

 

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

 

(2)                                  In the absence of willful misconduct on their part, the Trustee and the Agents may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions and such other documents delivered to them pursuant to Section 11.2 and conforming to the requirements of this Indenture.  However, in the case of any such certificates or opinions which by any provision

 

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hereof are required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 7.2                                                   Rights of Trustee .  Subject to Section 7.1:

 

(a)                                  The Trustee and each Agent may rely conclusively on and shall be protected from acting or refraining from acting based upon any document believed by them to be genuine and to have been signed or presented by the proper Person.  Neither the Trustee nor any Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document.  The Trustee shall

 

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not be deemed to have notice or any knowledge of any matter (including without limitation Defaults or Events of Default) unless a Trust Officer assigned to and working in the Trustee’s Corporate Trust Office which is administering this Indenture has actual knowledge thereof or unless written notice thereof is received by the Trustee at its Corporate Trust Office and such notice clearly references the Notes, the Issuer or this Indenture.

 

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

 

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

 

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

 

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

 

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

 

(g)                                   The permissive rights of the Trustee enumerated herein shall not be construed as duties.

 

(h)                                  The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person retained to act hereunder.

 

(i)                                      Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(j)                                     The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authorities and governmental action.

 

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

 

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

 

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

 

SECTION 7.6                                                   Compensation and Indemnity .  The Issuer shall pay to the Trustee and Agents from time to time such compensation as the Issuer and the Trustee or Agent, as applicable, shall from time to time agree in writing for its acceptance of this Indenture and services hereunder.  The Trustee’s and the Agents’ compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuer shall reimburse the Trustee and Agents upon request for all reasonable and duly documented and invoiced disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made by it in addition to the compensation for their services, except any such disbursements, expenses and advances as may be attributable to the Trustee’s or any Agent’s negligence, willful misconduct or bad faith.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

 

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

 

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The Issuer shall indemnify each of the Trustee, any predecessor Trustee and the Agents (which, for purposes of this paragraph, include such Trustee’s and Agents’ officers, directors, employees, agents, successors and assigns) for, and hold them harmless against, any and all loss, damage, claim, proceedings, demands, costs, expense or liability including taxes (other than taxes based on the income of the Trustee) incurred by the Trustee or an Agent without negligence or willful misconduct on its part in connection with acceptance of administration of this trust and performance of any provisions under this Indenture, including the reasonable expenses and attorneys’ fees and expenses of defending itself against any claim of liability arising hereunder.  The Trustee and the Agents shall notify the Issuer promptly of any claim asserted against the Trustee or such Agent for which it may seek indemnity.  However, the failure by the Trustee or the Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.  Subject to Section 7.1(b), the Issuer need not reimburse or indemnify against any loss liability or expense incurred by the Trustee through its own willful misconduct or negligence.  The Issuer shall defend the claim and the Trustee or such Agent shall cooperate in the defense (and may employ its own counsel reasonably satisfactory to the Trustee) at the Issuer’s expense.  The Trustee or such Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel.  The Issuer need not pay for any settlement made without its written consent, which consent shall not be unreasonably withheld.   Any settlement which affects the Trustee or an Agent may not be entered into without the written consent of the Trustee or such Agent, unless the Trustee or such Agent is given a full and unconditional release from liability with respect to the claims covered thereby and such settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Trustee or such Agent, as applicable.

 

To secure the Issuer’s payment obligations in this Section 7.6, the Trustee and the Agents shall have a senior Lien prior to the Notes against all money or property held or collected by the Trustee and the Agents, in its capacity as Trustee or Agent, except money or property held in trust to pay principal or premium, if any, and Additional Amounts, if any, or interest on particular Notes.

 

When the Trustee or an Agent incurs expenses or renders services after the occurrence of an Event of Default specified in clause (7) of Section 6.1, the expenses (including the reasonable fees and expenses of its agents and counsel) and the compensation for the services shall be preferred over the status of the Holders in a proceeding under any Bankruptcy Law and are intended to constitute expenses of administration under any Bankruptcy Law.  The Issuer’s obligations under this Section 7.6 and any claim or Lien arising hereunder shall survive the termination of this Indenture, the resignation or removal of any Trustee or Agent, the discharge of the Issuer’s obligations pursuant to Article VIII and any rejection or termination under any Bankruptcy Law.

 

Whenever the Trustee is bound to act under this Indenture at the request or direction of the Holders of Notes, the Trustee shall nevertheless not be so bound unless first indemnified and/or provided with security to its satisfaction against all proceedings, claims and demands to which it may render itself liable and all costs, charges, expenses and liabilities which it may incur by so doing.

 

Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee, is subject to this Section 7.6.

 

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The Guarantors shall be jointly and severally liable with the Issuer for all of the Issuer’s obligations pursuant to this Section 7.6.

 

SECTION 7.7                                                   Replacement of Trustee .  The Trustee and any Agent may resign at any time by so notifying the Issuer in writing.  The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the Issuer and the Trustee in writing and may appoint a successor trustee with the Issuer’s consent.  A resignation or removal of the Trustee or any Agent and appointment of a successor Trustee or Agent, as the case may be, shall become effective only upon the acceptance by the successor Trustee or the successor Agent, as the case may be, of appointment as provided in this section.  The Issuer may remove the Trustee if:

 

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

 

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

 

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

 

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

 

A successor Trustee or successor Agent, as applicable, shall deliver a written acceptance of its appointment to the retiring Trustee or Agent, as applicable, and to the Issuer.  Thereupon, the resignation or removal of the retiring Trustee or Agent, as applicable, shall become effective, and the successor Trustee or Agent, as applicable, shall have all the rights, powers and duties of the Trustee or Agent, as applicable, under this Indenture.  Promptly after that, the retiring Trustee or Agent, as applicable, shall transfer, after payment of all sums then owing to the Trustee or Agent, as applicable, pursuant to Section 7.6, all property held by it as Trustee or Agent, as applicable, to the successor Trustee or Agent, as applicable, subject to the Lien provided in Section 7.6.  A successor Trustee or Agent, as applicable, shall mail notice of its succession to each Holder.

 

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

 

Notwithstanding replacement of the Trustee pursuant to this Section 7.7, the Issuer’s obligations under Section 7.6 shall continue for the benefit of the retiring Trustee and the

 

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Issuer shall pay to any replaced or removed Trustee all amounts owed under Section 7.6 upon such replacement or removal.

 

SECTION 7.8                                                   Successor Trustee by Merger, Etc. .  If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall, if such resulting, surviving or transferee corporation is otherwise eligible hereunder, be the successor Trustee.  In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by consolidation, merger or conversion to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.

 

SECTION 7.9                                                   Eligibility; Disqualification .  There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power and that is subject to supervision or examination by federal or state authorities.  The Trustee together with its affiliates shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most recent annual report of condition.

 

ARTICLE VIII

 

SATISFACTION AND DISCHARGE OF INDENTURE

 

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

 

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

 

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

 

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

 

SECTION 8.3                                                   Covenant Defeasance .  Upon the Issuer’s exercise under Section 8.1 of the option applicable to this Section 8.3, the Issuer and the Guarantors shall be released from any obligations under the covenants set forth in Sections 4.3, 4.4 and 4.10, Section 5.1(4), Section 6.1(3) (with respect to Sections 4.3, 4.4, 4.10 and 5.1(4) only), Section 6.1(4) and Section 6.1 (6) (with respect to Subsidiaries of the Company other than the Issuer), hereof with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, such Covenant Defeasance means that, (i) with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and (ii) payment on the Notes may not be accelerated because of an Event of Default specified in Sections 6.1(3) (with respect to Sections 4.3, 4.4, 4.10 and 5.1(4) only), 6.1(4) or 6.1(6) (with respect only to Subsidiaries of the Company other than the Issuer).

 

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

 

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

 

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

 

(3)                                  no Default or Event of Default (other than in the case of a defeasance of all then outstanding Notes, as the result of the incurrence of indebtedness used to defease the Notes under this Article VIII) shall have occurred and be continuing on the date of

 

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such deposit in the Defeasance Trust or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;

 

(4)                                  such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of any other material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

 

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

 

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

 

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

 

SECTION 8.6                                                   Survival of Certain Obligations .  Notwithstanding the satisfaction and discharge of this Indenture and of the Notes in the manner referred to in Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Issuer, the Company, the other Guarantors and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 4.1 (with respect to the Trustee and, as far as the Issuer and each of the Guarantors is concerned, subject to Sections 8.2 and 8.5), 4.2, 4.6, 4.13 and 6.10, Article VII and Article VIII shall survive until the

 

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Notes are no longer outstanding, and thereafter the obligations of the Issuer, the Company, the other Guarantors and the Trustee under Articles VII and VIII shall survive.  Nothing contained in this Article VIII shall abrogate any of the obligations or duties of the Trustee under this Indenture.

 

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

 

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

 

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

 

SECTION 8.9                                                   Repayment to the Issuer; Unclaimed Money .  The Trustee and any Paying Agent shall promptly pay or return to the Issuer upon Issuer Order any cash held by them at any time that are not required for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any defeased or discharged Notes for which cash has been deposited pursuant to Section 8.4 or 8.5.

 

Any money held by the Trustee or any Paying Agent under this Article VIII, in trust for the payment of the principal of, premium, if any, interest and Additional Amounts, if any, on any Note and remaining unclaimed for two years after such principal, premium, if any, interest and Additional Amounts, if any, that has become due and payable shall be paid to the Issuer upon Issuer Order or if then held by the Issuer shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer give notice to the Holders or cause to be published notice once, in a leading newspaper having a general circulation in New York (which is expected to be The Wall Street Journal ) (and, if and so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and are admitted to trading on the Regulated Market of the Luxembourg Stock Exchange and the rules of such stock exchange

 

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shall so require, a newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort or, to the extent and in the manner permitted by such rules, posted on the official website of the Luxembourg Stock Exchange (www.bourse.lu)) or in the case of Definitive Notes, in addition to such publication, mail to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar (and, if and so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and are admitted to trading on the Regulated Market of the Luxembourg Stock Exchange and the rules of such stock exchange shall so require, publish in a newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort) or, to the extent and in the manner permitted by such rules, posted on the official website of the Luxembourg Stock Exchange (www.bourse.lu)), that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification, any unclaimed balance of such money then remaining will be repaid to the Issuer).

 

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

 

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

 

ARTICLE IX

 

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

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

 

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

 

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

 

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

 

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

 

(5)                                  secure the Notes;

 

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

 

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

 

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

 

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

 

(10)                         conform the text of this Indenture or the Notes to any provision of the “Description of the Notes” in the Offering Memorandum to the extent that the Trustee has received an Officers’ Certificate stating that such text constitutes an unintended conflict with the description of the corresponding provision or provisions of such “Description of the Notes”; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 9.4                                                   Revocation and Effect of Consents .  Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note.  However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective.  An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder of a Note.  An amendment or waiver becomes effective once the requisite number of consents is received by the Issuer or the Trustee.

 

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

 

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

 

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

 

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

 

ARTICLE X

 

NOTE GUARANTEE

 

SECTION 10.1                                            Note Guarantee .

 

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

 

Each Guarantor hereby jointly and severally agrees that its obligations hereunder shall be irrevocable and unconditional, irrespective of the validity, regularity or enforceability of such Note or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, the effects of Bankruptcy Law applicable in the event of bankruptcy proceedings being opened with respect to the Issuer, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Notes, any waiver or consent by the Holder of such Note or by the Trustee with respect to any provisions thereof or of

 

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

 

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

 

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

 

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

 

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

 

SECTION 10.2                                            Guarantors May Consolidate, Etc., on Certain Terms .  Except as set forth in Section 10.3 and in Article V hereof, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company, the Issuer or another Guarantor or shall prevent any sale, transfer, assignment, lease, conveyance or other disposition of the property of a Guarantor as an entirety or substantially as an entirety to the Company, the Issuer or another Guarantor.

 

SECTION 10.3                                            Release of Guarantors .  Subject to the limitations set forth in Sections 5.1 and 5.2 hereof,

 

(a)           concurrently with any consolidation or merger of a Guarantor or any sale, transfer, assignment, lease, conveyance or other disposition of the property of a Guarantor as an entirety or substantially as an entirety, in each case as permitted by Sections 5.1, 5.2 and 10.2 hereof, and upon delivery by the Company or the Issuer to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such consolidation, merger, sale, transfer, assignment, conveyance or other disposition was made in accordance with Sections 5.1, 5.2 and 10.2 hereof, the Trustee shall execute any documents reasonably required in order to acknowledge the release of such Guarantor from its obligations under its Note Guarantee endorsed on the Notes and under this Indenture.  Any Guarantor not released from its obligations under its Note Guarantee and under this Indenture shall remain liable for the full amount of principal of (premium, if any) and interest (including Additional Amounts, if any) on the Notes and for the other obligations of a Guarantor under its Note Guarantee endorsed on the Notes and under this Indenture.  Concurrently with the defeasance of the Notes under Section 8.2 or satisfaction and discharge of this Indenture under Section 8.5 hereof, the Guarantors shall be released from all of their obligations under their Note Guarantees endorsed on the Notes and under this Indenture, without any action on the part of the Trustee or any Holder of Notes.

 

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

 

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

 

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ARTICLE XI

 

MISCELLANEOUS

 

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

 

if to the Company, to it at:

 

Else-Kröner Strasse 1
61352 Bad Homburg
Germany
Facsimile:  011-49-6172-609-2280
Attention:  Michael Brosnan, Chief Financial Officer

 

if to the Issuer:

 

Fresenius Medical Care US Finance III, Inc.
920 Winter Street
Waltham MA  02451-1457
Facsimile:  781 699-9632
Attn:  Karen A. Gledhill, Esq.

 

if to FMCH:

 

920 Winter Street
Waltham MA  02451-1457
Facsimile:  781 699-9632
Attn:  Karen A. Gledhill, Esq.

 

in each case, with a copy to:

 

Fresenius Medical Care AG & Co. KGaA
Else-Kröner Strasse 1
61352 Bad Homburg
Germany
Facsimile:  011-49-6172-608-5534
Attention:  Dr. Peter Hennke

 

if to the Trustee:

 

U.S. Bank National Association
225 Asylum Street
Hartford, Connecticut 06103
Attention:  Melissa Vachon
Telecopier:  860-241-6897
Telephone:  860-241-6817

 

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Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person.  Any notice or communication to the Issuer, shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five (5) calendar days after mailing if sent by first class mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee); provided , that, any notice or communication delivered to the Trustee or an Agent shall be deemed effective upon actual receipt thereof and on the first date on which publication is made, if given by publication (including by posting of information on the website or online data system maintained in accordance with the provisions of this Indenture).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 11.6                                            Governing Law .  THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES, AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 11.7                                            Submission to Jurisdiction .  To the fullest extent permitted by applicable law, each of the Issuer and the Guarantors irrevocably submits to the non-exclusive jurisdiction of any U.S. federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, United States of America, in any suit or proceeding based on or arising under this Indenture or the Notes, and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court.  Each of the Issuer and the Guarantors, to the fullest extent permitted by applicable law, irrevocably and fully waives the defense of an inconvenient forum to the maintenance of such suit or proceeding and irrevocably waives to the fullest extent it may effectively do so any objection which it may now or hereafter have to the laying of venue of any such proceeding, and each of the Issuer and the Guarantors hereby irrevocably consents to be served with notice and service of process by delivery or by registered mail with return receipt requested addressed to FMCH’s registered agent, which as of the date hereof is CT Corporation System, 28 Liberty Street, New York, NY 10005 (which service of process by registered mail shall be effective with respect to the Issuer and the Guarantors so long as such return receipt is obtained, or in the event of a refusal to sign such receipt any Holder or the Trustee is able to produce evidence of attempted delivery by such means).  Each of the Issuer and the Guarantors further agrees that such service of process and written notice of such service to the Issuer and the Guarantors in the circumstances described above shall be deemed in every respect effective notice and service of process upon each of the Issuer and the Guarantors in any such action or proceeding.  Nothing herein shall affect the right of any Person to serve process in any other manner permitted by law.  Each of the Issuer and the Guarantors agrees that a final action in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other lawful manner.  Notwithstanding the foregoing, each of the Issuer and the Guarantors hereby agrees that any action arising out of or based on this Indenture or the Notes may also be instituted in any competent court in Germany, and it expressly accepts the jurisdiction of any such court in any such action.

 

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

 

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

 

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SECTION 11.8                                            No Personal Liability of Directors, Officers, Employees and Stockholders .  No member of the Board of Directors, director, officer, employee, incorporator or stockholder of the Issuer, Fresenius SE, the general partner of Fresenius SE, the Company, its General Partner or the Guarantors, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, this Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting a Note waives and releases all such liability and agrees not to enforce any claim in respect of the Notes, this Indenture or the Note Guarantees to the extent that it would give rise to such personal liability. The waiver and release are part of the consideration for issuance of the Notes and the Note Guarantees.

 

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

 

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

 

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

 

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

 

SECTION 11.13                                     Currency Indemnity .  The U.S. dollar (or any of its successor currencies) is the sole currency of account and payment for all sums payable by the Issuer under this Indenture.  Any amount received or recovered in a currency other than the U.S. dollar in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor, any Subsidiary or otherwise) by the Holder in respect of any sum expressed to be due to it from the Issuer will constitute a discharge of the Issuer only to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not possible to make that purchase on that date, on the first date on which it is possible to do so).  If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient under any Note, the Issuer will indemnify the recipient against any loss sustained by it as a result.  In any event the Issuer will indemnify the recipient against the cost of making any such purchase.

 

For the purposes of this indemnity, it will be sufficient for the Holder to certify that it would have suffered a loss had an actual purchase of U.S. dollars been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of

 

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U.S. dollars on such date had not been practicable, on the first date on which it would have been practicable).  These indemnities constitute a separate and independent obligation from the other obligations of the Issuer, will give rise to a separate and independent cause of action, will apply irrespective of any waiver granted by any holder and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or any other judgment or order.

 

SECTION 11.14                                     Information .  For so long as the Notes are listed on the Official List of the Luxembourg Stock Exchange and are admitted to trading on the Regulated Market of the Luxembourg Stock Exchange, and the rules of such stock exchange so require, copies of this Indenture will be made available in Luxembourg through the offices of the Listing Agent in such city.

 

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

 

 

 

FRESENIUS MEDICAL CARE US FINANCE III, INC.

 

 

 

 

 

 

 

 

By:

/s/ Mark Fawcett

 

 

Name:

Mark Fawcett

 

 

Title:

Sr. Vice President and Treasurer

 

 

 

 

 

 

 

 

FRESENIUS MEDICAL CARE AG & CO. KGaA, a partnership limited by shares and(4) represented by FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner

 

 

 

 

 

 

 

 

By:

/s/ Michael Brosnan

 

 

Name:

Michael Brosnan

 

 

Title:

Member of the Management Board

 

 

 

 

 

 

 

 

By:

/s/ Rice Powell

 

 

Name:

Rice Powell

 

 

Title:

Member of the Management Board

 

 

 

 

 

 

 

 

FRESENIUS MEDICAL CARE HOLDINGS, INC.

 

 

 

 

 

 

 

 

By:

/s/ Mark Fawcett

 

 

Name:

Mark Fawcett

 

 

Title:

Sr. Vice President and Treasurer

 

 

 

 

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION,
as Trustee

 

 

 

 

 

 

 

 

By:

/s/ Melissa Vachon

 

 

Name:

Melissa Vachon

 

 

Title:

Vice President

 

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EXHIBIT A
TO THE INDENTURE

 

[FORM OF FACE OF NOTE]

 

[Global Note Legend]

 

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

 

[Private Placement Legend]

 

THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE

 


 

SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER IF THE ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.

 

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FRESENIUS MEDICAL CARE US FINANCE III, INC.

 

3.750% Note due 2029

 

CUSIP No.:

 

No.

$

 

FRESENIUS MEDICAL CARE US FINANCE III, INC., a Delaware corporation (the “Issuer”, which term includes any successor entity), for value received, promises to pay to [•] or its registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on June 15, 2029.

 

Interest Payment Dates:  June 15 and December 15, commencing [INSERT FIRST INTEREST PAYMENT DATE]

 

Record Dates:  June 1 and December 1 immediately preceding the Interest Payment Dates

 

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

 

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

 

Dated:

 

 

 

 

 

 

 

 

 

 

FRESENIUS MEDICAL CARE US FINANCE III, INC.

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

Title:

 

Trustee’s Certificate of Authentication

 

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

 

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

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[FORM OF REVERSE]

 

FRESENIUS MEDICAL CARE US FINANCE III, INC.

 

3.750% Note due 2029

 

1.                                       Interest .  FRESENIUS MEDICAL CARE US FINANCE III, INC., a Delaware corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below.  Interest on the Notes will accrue at 3.750% per annum on the principal amount then outstanding, and be payable semi-annually in cash in arrears on each June 15 and December 15, or if any such day is not a Business Day, on the next succeeding Business Day, commencing [INSERT FIRST INTEREST PAYMENT DATE], to the Holder hereof.  Notwithstanding any exchange of this Note for a Definitive Note during the period starting on a Record Date relating to such Definitive Note and ending on the immediately succeeding interest payment date, the interest due on such interest payment date shall be payable to the Person in whose name this Global Note is registered at the close of business on the Record Date for such interest.  Interest on the Notes will accrue from the most recent date to which interest has been paid.  Interest will be computed on the basis of a 360-day year of twelve 30-day months.

 

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

 

2.                                       Additional Amounts .  All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the payor is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer, a Guarantor or other applicable withholding agent is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each beneficial owner after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such beneficial owner would have received if such Taxes had not been withheld or

 

A- 5


 

deducted; provided, however , that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note is held in custody with such German custodian. The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee.

 

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

 

At least 30 days prior to each date on which payment of principal, premium, if any, interest or other amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional

 

A- 6


 

Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request.

 

The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Paragraph 2 to the Issuer or any Guarantor shall apply to any successor(s) thereto.

 

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

 

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

 

5.                                       Indenture .  The Issuer issued the Notes under an Indenture, dated as of June 20, 2019 (the “Indenture”), among the Issuer, Fresenius Medical Care AG & Co. KGaA (the “Company”) and Fresenius Medical Care Holdings, Inc. (“FMCH” and together with the Company, the “Guarantors”) and U.S. Bank National Association (the “Trustee”), as Trustee.  This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 3.750% Notes due 2029.  The terms of the Notes include those stated in the Indenture and terms not defined herein shall have the meanings set forth in the Indenture.  Notwithstanding anything to the contrary herein, this Note is subject to all such terms, and Holders of Notes are referred to the Indenture for a statement of them.  Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as the same may be amended from time to time.

 

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6.                                       Ranking .  The Notes will be general unsecured obligations of the Issuer and the Note Guarantees will be general unsecured obligations of the Guarantors.

 

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

 

8.                                       Optional Redemption .  Prior to March 15, 2029 (the “Par Call Date”) the Issuer may redeem all or, from time to time, a part of this Note, at its option, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued interest, if any, to the redemption date, plus the excess of:

 

(a)                                  (a)                                  as determined by the calculation agent (which shall initially be the Trustee), the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed that would have been due if the Notes matured on the Par Call Date, excluding accrued and unpaid interest to, but not including,  the date of redemption, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 30 basis points; over

 

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

 

In addition, on or after the Par Call Date this Note may be redeemed, in whole or in part, by the Issuer upon not less than 10 nor more than 60 days’ prior notice, at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of redemption.

 

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

 

In the case of any partial redemption, the Trustee will select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, and/or in compliance with the requirements of the DTC, or if such Notes are not listed, on a pro rata basis or by lot (and, in the case of Global Notes, in accordance with the applicable procedures of DTC), although no Note of $150,000 in original principal amount or less will be redeemed in part.  If any Note is to be redeemed in part only, notice of redemption relating to that Note will state the portion of the principal amount thereof to be redeemed.  A new Note in principal amount equal to the unredeemed portion thereof will be issued and delivered to the Trustee, or in the case of Definitive Notes, issued in the name of the Holder thereof upon cancellation of the original Note.

 

9.                                       Special Tax Redemption .  The Issuer will be entitled to redeem this Note, at its option, in whole but not in part, upon not less than 10 nor more than 60 days’ notice, at

 

A- 8


 

100% of the principal amount of this Note, plus accrued and unpaid interest (if any) to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in the event the Issuer has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Notes, any Additional Amounts as a result of:

 

(a)                                  a change in or an amendment to the laws, treaties or regulations of any Relevant Taxing Jurisdiction; or

 

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

 

which change or amendment to such laws, treaties, regulations or official position is announced and becomes effective after the issuance of the Notes (or, if the applicable Relevant Taxing Jurisdiction did not become a Relevant Taxing Jurisdiction until a later date, after such later date); provided , that the Issuer determines, in its reasonable judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use of reasonable measures available to it; provided, further , that at the time such notice is given, such obligation to pay Additional Amounts re-mains in effect.

 

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

 

10.                                Notice of Redemption .  At least 10 days but not more than 60 days before a Redemption Date or a Tax Redemption Date, as applicable, the Issuer shall, if and so long as the Notes are in global form and are admitted to trading on the Regulated Market of the Luxembourg Stock Exchange and the rules of such stock exchange shall so require, publish a redemption notice in a newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort ) or, to the extent and in the manner permitted by such rules, post such notice on the official website of the Luxembourg Stock Exchange (www.bourse.lu)) and notify the Holders, the Trustee and the Luxembourg Stock Exchange, if applicable, or in the case of Definitive Notes, in addition to such publication, mail such notice to Holders (with a copy to the Trustee) by first-class mail, postage pre-paid, at their respective addresses as they appear on the registration books of the Registrar.  At the Issuer’s request made at least 45 days before the Redemption Date or a Tax Redemption Date, as applicable (or such shorter period as the Trustee in its sole discretion shall determine), the Paying Agent shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided, however, that the Issuer shall deliver to the Trustee (in advance) an Officers’ Certificate requesting that the Trustee give such notice and setting forth in full the information to be stated in such notice as provided in the Indenture.

 

Except as set forth in the Indenture, from and after any Redemption Date or Tax Redemption Date, as the case may be, if monies for the redemption of the Notes called for redemption shall have been deposited with the Paying Agent for redemption on such Redemption Date or Tax Redemption Date, as the case may be, then, unless the Issuer defaults in the payment

 

A- 9


 

of such Redemption Price, the Notes called for redemption will cease to bear interest and Additional Amounts, if any, and the only right of the Holders of such Notes will be to receive payment of the Redemption Price.

 

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

 

12.                                Denominations; Form .  The Global Notes are in registered global form, without coupons, in denominations of $150,000 and integral multiples of $2,000 in excess thereof.

 

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

 

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

 

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

 

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

 

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

 

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

 

A- 10


 

19.                                Defaults and Remedies .  If an Event of Default (other than an Event of Default specified in clause (6) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately in the manner and with the effect provided in the Indenture.  Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture.  The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity satisfactory to it.  The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of Notes notice of any continuing Default or Event of Default (except a Default in payment of principal, premium, interest and Additional Amounts, if any, including an accelerated payment) if it determines that withholding notice is in their interest.

 

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

 

21.                                No Recourse Against Others .  No member of the Board of Directors, director, officer, employee, incorporator or stockholder of the Issuer, Fresenius SE, the general partner of Fresenius SE, the Guarantors, or the General Partner of the Company, as such, shall have any liability for any obligations of the Issuer or any Guarantor under this Note, the Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder by accepting this Note waives and releases all such liability and agrees not to enforce any claim in respect of the Notes, the Indenture or the Note Guarantees to the extent that it would give rise to such personal liability. The waiver and release are part of the consideration for issuance of this Note and the Note Guarantees.

 

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

 

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

 

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

 

25.                                Governing Law .  THIS NOTE AND THE INDENTURE, AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK

 

A- 11


 

EXCEPT CERTAIN MATTERS CONCERNING LIMITATION THEREOF WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.

 

A- 12


 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL AMOUNT

 

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

 

Date of
Decrease/
Increase

 

Decrease in
Principal
Amount

 

Increase in
Principal
Amount

 

Total Principal
Amount
Following Such
Decrease/
Increase

 

Notation
Made by
or on
Behalf of
Trustee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A- 13


 

OPTION OF HOLDER TO ELECT PURCHASE

 

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

 

o

 

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

 

Date:

 

 

 

 

 

Your Signature:

 

 

 

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

 

 

 

 

 

 

 

 

Signature Guarantee:

 

 

 

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee)

 

 

 

A- 14


 

EXHIBIT B
TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Transfers pursuant to Section 2.7(a) of the Indenture)

 

Fresenius Medical Care US Finance III, Inc.
c/o U.S. Bank National Association
225 Asylum Street, 23rd Floor

Hartford, CT 06103

 

Attention:                                          Corporate Trust and Agency Services
[Melissa Dumont]

 

RE:                            3.750% Notes due 2029
(the “Notes”) of Fresenius Medical Care US Finance III, Inc .

 

Reference is hereby made to the Indenture dated as of June 20, 2019 (the “Indenture”) among Fresenius Medical Care US Finance III, Inc., Fresenius Medical Care AG & Co. KGaA and Fresenius Medical Care Holdings, Inc. and U.S. Bank National Association, as Trustee.  Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.

 

This letter relates to $          (being in a minimum amount of $150,000 and any integral multiple of $2,000 in excess thereof) principal amount of Notes beneficially held through interests in the Rule 144A Global Note (CUSIP No. 35805B AA6) with DTC in the name of         (the “Transferor”), account number         .  The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global Note be transferred or exchanged for an interest in the Regulation S Global Note (CUSIP No. U3149F AA7) in the same principal denomination and transferred to           (account no.         ).  If this is a partial transfer, a minimum amount of $150,000 and any integral multiple of $2,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

 

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

 

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

 

B- 1


 

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

 

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

 

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

 

OR

 

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

 

B- 2


 

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

 

Dated:

 

 

 

 

 

 

 

 

[Name of Transferor]

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

Telephone No.:

 

Please print name and address (including zip code number)

 

 

B- 3


 

EXHIBIT C
TO THE INDENTURE

 

FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Transfers pursuant to Section 2.7(b) of the Indenture)

 

Fresenius Medical Care US Finance III, Inc.
c/o U.S. Bank National Association
225 Asylum Street, 23rd Floor

Hartford, CT 06103

 

Attention:                  Corporate Trust and Agency Services
Melissa Dumont

 

RE:                            3.750%Notes due 2029 (the “Notes”) of Fresenius Medical Care US Finance III, Inc .

 

Reference is hereby made to the Indenture dated as of June 20, 2019 (the “ Indenture ”) among Fresenius Medical Care US Finance III, Inc., Fresenius Medical Care AG & Co. KGaA and Fresenius Medical Care Holdings, Inc. and U.S. Bank National Association, as Trustee.  Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.

 

This letter relates to $           (being in a minimum amount of $150,000 and in an integral multiple of $2,000 in excess thereof) principal amount of Notes beneficially held through interests in the Regulation S Global Note (CUSIP No. U3149F AA7) with DTC in the name of                 (the “Transferor”), account number          .  The Transferor hereby requests that on [INSERT DATE] such beneficial interest in the Regulation S Global Note be transferred or exchanged for an interest in the Rule 144A Global Note (CUSIP No. 35805B AA6) in the same principal denomination and transferred to                (account no.         ).  If this is a partial transfer, a minimum of $150,000 and any integral multiple of $2,000 in excess thereof of the Regulation S Global Note will remain outstanding.

 

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

 

C- 1


 

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

 

Dated:

 

 

 

 

 

 

 

 

[Name of Transferor]

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

Telephone No.:

 

Please print name and address (including zip code number)

 

 

 

C- 2




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Exhibit 31.1

CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002

I, Rice Powell, certify that:

1.
I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the "Report").

2.
Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;

3.
Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;

4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;

b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and

d)
disclosed in this Report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions):

a)
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: July 30, 2019

    By:   /s/ RICE POWELL

Rice Powell
Chief Executive Officer and Chairman of the Management Board of the General Partner

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Exhibit 31.2

CERTIFICATION PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002

I, Michael Brosnan, certify that:

1.
I have reviewed this report on Form 6-K of Fresenius Medical Care AG & Co. KGaA (the "Report");

2.
Based on my knowledge, this Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Report;

3.
Based on my knowledge, the financial statements, and other financial information included in this Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Report;

4.
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a)
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;

b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Report based on such evaluation; and

d)
disclosed in this Report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5.
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function):

a)
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: July 30, 2019

    By:   /s/ MICHAEL BROSNAN

Michael Brosnan
Chief Financial Officer and member of the Management Board of the General Partner

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Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the report of Fresenius Medical Care AG & Co. KGaA (the "Company") on Form 6-K furnished for the month of July 2019 containing its unaudited financial statements as of June 30, 2019 and for the six-month periods ending June 30, 2019 and 2018, as submitted to the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, Rice Powell, Chief Executive Officer and Michael Brosnan, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:

(1)
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
    By:   /s/ RICE POWELL

Rice Powell
Chief Executive Officer and Chairman of the Management Board of the General Partner

 

 

 

 

July 30, 2019

 

 

By:

 

/s/ MICHAEL BROSNAN

Michael Brosnan
Chief Financial Officer and member of the Management Board of the General Partner

 

 

 

 

July 30, 2019

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CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002